The administration of President Joe Biden on Friday approved rules that safeguard hundreds of thousands of tiny streams, wetlands, and other waterways, erasing a Trump-era regulation that environmentalists claimed left rivers open to pollution and was overturned by federal courts.
Which “waters of the United States” are covered by the Clean Water Act is specified in the regulation. The phrase has been a topic of contention between environmental organizations, who seek to expand the restrictions on pollutants entering the nation’s waters, and groups representing farmers, builders, and commercial interests, who argue that going too far with rules would be burdensome for industry.
The revised regulation, according to the Environmental Protection Agency and the Department of the Army, is based on definitions from before 2015. To alleviate confusion, according to federal officials, rivers were given a “durable meaning.”
But there has been a great deal of ambiguity lately. The Trump administration reduced federal safeguards after the Obama administration tried to broaden them in order to take back hundreds of environmental and public health rules. That attempt was dismissed by a federal judge. And the Supreme Court is presently deliberating a different case that has the potential to overturn the established rule.
The EPA Assistant Administrator for Water Radhika Fox told The Associated Press, “We have put up a rule that is clear, it’s durable, and it balances that safeguarding our water resources with the demands of all water users, whether it’s farmers, ranchers, business, or watershed organizations.
According to Fox, the new regulation is based on a definition from before 2015 but has been updated to incorporate court rulings, scientific knowledge, and decades of experience. According to her, certain streams, marshes, lakes, and ponds would see a little boost in protections under the final rule.
The Trump-era regulation, which was finalized in 2020, was long sought after by construction companies, oil and gas companies, farmers, and others who complained about federal overreach that they said extended into gullies, streams, and ravines on agricultural land and other privately owned property.
Up response, environmental organizations and proponents of public health said that the Trump regulation gave companies the freedom to dump pollutants into unprotected streams and fill in certain wetlands, endangering downstream public water sources and hurting animals and habitat.
Kelly Moser, senior counsel for the Southern Environmental Law Center’s Clean Water Defense Initiative, said in a statement that “today, the Biden administration restored needed clean water protections so that our nation’s waters are guarded against pollution for fishing, swimming, and as sources of drinking water.”
Removing the Trump-era regulation is a “wise decision,” according to Jon Devine, director of federal water policy for the Natural Resources Defense Council, and it “comes at a time when we’re witnessing unprecedented attacks on federal clean water safeguards by polluters and their supporters.”
Shelley Moore Capito, a Republican senator, criticized the regulation as “regulatory overreach” that unfairly burdens American landowners, farmers, ranchers, miners, and infrastructure builders.
The new regulation, according to Jerry Konter, head of the National Association of Home Builders, leaves open the question of whether the federal government would control water in locations like roadside ditches and solitary ponds.
According to a 2021 study by the Biden administration, the Trump regulation drastically reduced clean water safeguards in states like New Mexico and Arizona and permitted more than 300 projects to move forward without the federal licenses needed by the Obama-era rule.
According to Obama appointee and U.S. District Court Judge Rosemary Marquez in Arizona, who threw out the Trump-era rule in August 2021 and reinstated a 1986 standard that was more expansive than the Trump rule but more constrained than Obama’s, the Trump-era EPA had disregarded its own findings that smaller waterways can have an impact on the health of the larger waterways they flow into.
An Idaho couple’s business-backed effort to limit the Clean Water Act is currently being reviewed by Supreme Court justices as they weigh their claims. The Sacketts sought to construct a house next to a lake, but the EPA halted their plans in 2007 after discovering that the wetlands on their property were subject to federal regulation. The Sacketts need a permission, according to the government.
The lawsuit, which tested a portion of the regulation the Biden administration carried over into its finished version, was heard in October. In 2006, the now-retired Justice Anthony Kennedy stated that the Clean Water Act’s safeguards extend to wetlands if they “seriously influence the chemical, physical, and biological integrity” of surrounding navigable waterways like rivers. This test is included in the EPA regulation. In the 2006 decision, however, four conservative justices ruled that federal control only applied if there was a continuous surface link between wetlands and a water body that was visibly regulated, such as a river.
Since the scope of WOTUS “shifts with each new presidential administration,” according to Charles Yates, an attorney for the libertarian nonprofit Pacific Legal Foundation, the new regulation highlights the significance of the Supreme Court decision.
A legal, practical, and long-lasting definition of “navigable waterways” will remain difficult, according to Yates, who issued a statement.
The Biden rule provides federal safeguards for wetlands, tributaries, and other waterways that are “relatively permanent” or have a strong relationship to navigable waters. The rule states that numerous elements can decide whether the wetland and the waterway can have an influence on each other’s water quality and quantity, and it does not specify a fixed distance at which neighboring wetlands must be preserved. The impact “depends on regional differences in climate, terrain, and geomorphology,” the statement reads.
For instance, the law mentions that wetlands may need to be near to a river to be classified adjacent in the West, where there is a tendency for less rain and higher rates of evaporation. The regulation indicates that wetlands are “likely to be found to be sufficiently close where they are a few hundred feet from the tributary…” in areas with extensive waterways and flat topography.
According to Fox, the purpose of the law was not to halt farmland or urban expansion.
Making sure that growth is taking place and that we are producing food and fuel for our country while also protecting our water, as she put it, is important.