The Biden administration on Thursday announced its plans to strengthen federal protections for the nation’s waterways by replacing a Trump-era rule that significantly reduced protections for thousands of wetlands and streams.
In a press release, the U.S. Environmental Protection Agency (EPA) outlined its plans to work with the Army Corps of Engineers to revise the agencies’ definition of “waters of the United States,” or WOTUS. The types of waterways included under WOTUS determine which types of waters receive protection under the Clean Water Act.
President Biden announced his intent to revisit the rule immediately upon taking office, and this week the Justice Department filed a motion to remand the rule. The agencies aim to restore the previous Clean Water Act protections while incorporating “the latest science” and considering the impacts of climate change on the nation’s waters.
In 2015, the EPA under President Obama broadened and clarified WOTUS jurisdiction to include smaller tributaries and ponds that could affect neighboring waters. President Trump’s EPA replaced that rule with the 2020 Navigable Waters Protection Rule, which greatly narrowed federal jurisdiction over smaller waterways. The agencies plan to revert to the pre-2015 definition of WOTUS, while updating the regulations to reflect multiple Supreme Court rulings, including a 2006 decision that dealt with the connection between wetlands and major waterways
“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” said EPA Administrator Michael S. Regan in a statement.
The lack of clean-water protections are especially consequential in arid states such as Arizona and New Mexico, where very few streams flow continuously throughout the year. Many of these “ephemeral streams” lost protections under the Trump-era rule. According to the EPA, “nearly every one of over 1,500 streams assessed” in Arizona and New Mexico would regain protections under the new change.
The definition of WOTUS also affects permitting requirements under the Clean Water Act, which regulates the discharge of dredged or fill material — sediments or rocks used in development along waterways — into certain waters, including wetlands. According to the press release, the EPA and Army Corps are aware of at least 333 projects that would have required additional clean-water permits if not for the Trump-era rule.
In the 290-page proposal, the agencies acknowledge that water pollution and climate change often disproportionately affect low-income communities and communities of color. Indigenous communities have been particularly hard hit, because tribes often lack the authority and resources to fully regulate their on-reservation water sources — which are often ephemeral streams and may be polluted from upstream sources. The proposal states that the Trump-era rule change “may have disproportionately exposed tribes to increased pollution and health risks.”
The agencies said they will seek input from Indigenous nations and disadvantaged communities, as well as stakeholders from the agriculture industry, who often oppose expanding clean-water protections.
Jon Devine, director of federal water policy for the Natural Resources Defense Council, said the proposal represents “an important first step” in a rulemaking process that will affect large swaths of wetlands and thousands of streams in the U.S.
“The Biden administration needs to take a ‘full steam ahead’ approach to permanently restore federal protections for the nation’s lakes and rivers that supply drinking water to millions of people and the wetlands that protect our communities from flooding,” Devine said in an email. “EPA must write a rule based in science that honors the objectives of the Clean Water Act.”
