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Biden Moves to Restore Water Protections Lost Under Trump (2)

Nov. 18, 2021, 6:52 PMUpdated: Nov. 18, 2021, 9:57 PM

The Biden administration on Thursday released a long-awaited proposal to restore wetlands protections lost during the Trump era.

The proposal, which is expected to trigger a wave of new litigation, partially restores the pre-2015 definition of the waters of the United States, or WOTUS, under the Clean Water Act. It substantially unwinds the Trump administration’s Navigable Waters Protection Rule, which lifted federal jurisdiction over many small streams and other wetlands, and prevents developers from needing a federal permit for work in those waterways.

The Trump rule was itself a rollback of the Obama administration’s 2015 expansion of water protections.

“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” said EPA Administrator Michael Regan.

Sen. Tom Carper (D-Del.), chair of the Senate Environment and Public Works Committee, said the proposal “paves the way” for the EPA and the U.S. Army Corps of Engineers “to develop a definition that provides certainty and better protects our nation’s precious waters and wetlands, while also supporting economic opportunity and industries that depend on clean water.”

Regan has said he wants to land on a durable definition of WOTUS that puts an end to the perpetual back-and-forth between Democrat and Republican administrations.

He told a House committee in April the EPA will move forward “not in a ping-pong way,” but in a way that balances wetland protection without overburdening small farmers.

Regulatory Uncertainty

Republican lawmakers and industry have argued that an expansion of water protections under the Obama administration went too far, and that the constant tug of war between presidential administrations heightens regulatory uncertainty.

Sen. Shelley Moore Capito (R-W.Va.), top Republican on the Environment and Public Works Committee, said in a statement that the proposal confirms the EPA is ultimately going to come up with its own, different definition of WOTUS, “which will likely be even more stringent” than the 2015 rule.

“Farmers, ranchers, manufacturers, private land owners, and other stakeholders should expect reduced regulatory certainty and a continued lack of transparency in their livelihoods,” Capito said.

The proposal “demonstrates that the career staff at the agencies have put in a tremendous amount of work in an effort to build a scientific foundation for the proposal,” said Kevin Minoli a partner at Alston & Bird LLP and former principal deputy general counsel at the EPA during the Obama administration. “Ultimately, it will be the courts that tell us whether they were successful in that effort.”

Minoli added that the proposal “is not simply a re-codification” of the 1986 action in which the EPA and Army Corps of Engineers adopted rules defining “Waters of the United States” and the jurisdictional reach of the Clean Water Act.

“Rather than putting the old definition back in place and interpreting it in light of the intervening Supreme Court case law, the agencies have proposed to codify those Supreme Court decisions into the regulations,” he said. “That is a significant change that will get a lot of scrutiny during the public comment period and, eventually, from the courts.”

EPA water office chief Radhika Fox conceded during her May Senate confirmation hearing that the Obama rule created “a lot of case-specific jurisdictional determinations.” 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,” Fox said.

In June, the Justice Department filed a motion in the U.S. District Court for the District of Massachusetts requesting remand of the Trump rule. At the time, Regan said the agency had determined that the rule was “leading to significant environmental degradation.”

For example, the EPA said in arid New Mexico and Arizona alone, almost all of the roughly 1,500 streams the agency assessed were found to be non-jurisdictional.

The EPA also said it knew of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do. Section 404 requires permits for discharging dredged or fill material into federal waters.

(Updated with comment from Kevin Minoli.)

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; John Crawley at jcrawley@bloomberglaw.com

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