The Biden administration is planning to restore wetlands protections lost under a Trump-era rule that promotes development, the EPA announced Wednesday.
The Environmental Protection Agency said it and the U.S. Army Corps of Engineers plans to launch rulemakings to restore the pre-2015 definition of the waters of the United States, or WOTUS, under the Clean Water Act.
The move—expected to spark a cascade of new litigation—is at least a partial reversal of the Trump-era Navigable Waters Protection Rule, which took effect a year ago and lifted federal jurisdiction over many ephemeral streams and other wetlands.
It will also at least partly reverse the Obama-era Clean Water Rule, which was finalized in 2015 and expanded federal jurisdiction over wetlands, the EPA said.
The Trump rule, which will remain in place until the rulemakings are complete, is expediting new residential and commercial development in wetlands across the country because builders can now avoid obtaining a permit for work in waters that were formerly considered federal.
The announcement prompted the Justice Department to ask a Massachusetts federal district court to remand the rule without vacatur Wednesday in Conservation Law Foundation v. EPA. But environmentalists argue that such a remand leaves a damaging regulation in place for too long.
“The damage we have seen over the last year is going to continue apace, said Janette Brimmer, a senior attorney for Earthjustice. “This rule is wreaking havoc on protections of water. That’s not going to stop while the rulemaking goes on.”
‘Durable’ Rule Sought
The EPA is looking to write a federal waters definition that will survive longer than the Biden administration and withstand Republican pushback. Administrator Michael Regan said in a statement that it’s seeking a “durable” rule that draws on lessons learned from current and previous regulations.
The Biden administration announced in January that it would review the Trump rule, saying it allowed too many wetlands to be degraded by development.
It also lifted federal jurisdiction from nearly all of more than 1,500 streams in New Mexico and Arizona alone, plus many others across the U.S., the Biden-era agency found.
In replacing the Navigable Waters Protection Rule, the EPA said it would consider input from landowners, tribes and local governments while prioritizing water quality protections.
The Obama rule caused “a lot of case-specific jurisdictional determinations,” EPA water office chief Radhika Fox said in May. But in trying to correct that problem, the Trump rule created a situation in which “the vast majority of waters in some of the states are not jurisdictional,” she said.
The agency’s effort to replace the Trump regulation will likely be two rulemakings, EPA spokesman Nick Conger said.
One would restore wetland and waterway protections that existed before 2015, and the other would redefine WOTUS, he said.
The rulemakings are likely to take up to three years to complete and take effect, said Neal McAliley, an attorney with the Miami office of Carlton Fields P.A.
But the EPA has no specific timeline for the process, and officials aren’t sure how long it will take.
“We may have something more in the next few weeks,” Conger said.
Not If, but What
The Biden administration has been expected to revise or replace the Trump WOTUS definition since taking office, but what a “durable” new rule will look like is far from clear.
“Now, the question becomes, ‘Can they write a definition that will last beyond their time in office?’” Kevin Minoli, a partner at Alston & Bird LLP in Washington and a former EPA lawyer, said in a statement.
The new WOTUS rule has to be something everyone can accept if it’s to avoid reversal from a future Republican administration, McAliley said.
“This is going to be a challenge,” he said.
Developers are “constantly under this cloud of change in the rules,” McAliley said, and would be happier if they knew that whatever rule is on the books would stay there, regardless what party is in the White House.
“It would be better for everybody if we had a rule that would last,” he said.