Reversing Trump, the EPA increases protections for American rivers.

 Reversing Trump, the EPA increases protections for American rivers.

The judgement narrows which wetlands, streams, and rivers can be regulated under the Clean Water Act but falls short of a contentious Obama-era rule, which is a blow for a number of sectors.

From Scott Dance

Published at 12:24 p.m. EST on December 30, 2022, and updated at 3:20 p.m. EST

The Biden administration expanded the definition of waterways that the U.S. Environmental Protection Agency has the authority to regulate on Friday, reversing a change made under the Trump administration and attempting to end nearly ten years of challenges to the EPA's authority, including a case that is currently before the Supreme Court.

The EPA claimed that the regulation strikes a balance that it thought would protect both rivers and commerce, bringing the Waters of the United States regulatory framework back to a condition that is somewhat similar to that of before it became the subject of political discussion in 2015. Obama's administration significantly and contentiously expanded the Clean Water Act's coverage that year to include even transient streams and ponds; Trump significantly reduced EPA's authority over water pollution with a 2019 rule of his own.

Administrator Michael Regan stated that the agency's goal in expanding EPA's authority was to "deliver a durable definition of WOTUS that safeguards our nation's waters, strengthens economic opportunity, and protects people's health while providing greater certainty for farmers, ranchers, and landowners."

Because it gives federal and state governments the authority to control the flow of pollutants, such as livestock waste, construction runoff, and industrial effluent, environmentalists claim that the rule is essential to efforts to restore the health of compromised waterways and fragile wildlife habitats. The regulation establishes the scope of government enforcement of the historic Clean Water Act of 1972, which is credited with gradually, if occasionally inconsistently, improving the health of contaminated and degraded rivers and lakes.

However, the regulation has become a contentious issue since proponents of business and property rights claim it is too expensive and unworkable when applied to wetlands that can be tricky to define or streams that only flow for a portion of the year.

The U.S. Chamber of Commerce claimed the Biden rule would only increase regulatory uncertainty and unpredictability, which it warned may impede the planning and execution of significant government-funded infrastructure projects. Friday's statement did not appease critics.

Republicans slammed the Biden regulation as burdensome even though it is less comprehensive than Obama's.

[A disagreement over statistics in the EPA's water protection rule reflects an ideological change.]

Sen. Shelley Moore Capito (R-W.Va.) said in a statement that "the rule announced today is the latest round of regulatory overreach regarding what waters are subject to regulation under the Clean Water Act, and will unfairly burden America's farmers, ranchers, miners, infrastructure builders, and landowners."

The Biden regulation was meantime referred to as "reasonable, good government action" by Jon Devine, the Natural Resources Defense Council's head of federal water policy.

Approximately half of the nation's wetlands and at least 1.19 million miles of rain-dependent streams and rivers would lose federal protections under Trump's regulatory system, according to estimates by the environmental group and others. Though it wouldn't go as far as Obama's 2015 regulation, Biden's proposal would return many of those wetlands and streams under the EPA's regulatory purview.

The Biden administration declared that "traditional navigable waters," which include interstate waterways and upstream water sources that affect the health and condition of those waterways, would be subject to EPA monitoring. According to the EPA, the definition was modified in light of court decisions and more recent scientific research based on the legislative framework in place prior to 2015.

Because the Army Corps of Engineers has jurisdiction over any acts filling regulated bodies of water with dredge spoils or other materials, the Department of the Army collaborated with EPA to finalise the new regulation.

The Army's assistant secretary for civil works, Michael L. Connor, said in a statement that "the rule's clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organisations, and other stakeholders."

The Biden administration took this measure before a Supreme Court decision that could restrict EPA jurisdiction was anticipated. In October, the Supreme Court heard a case involving a house that Michael and Chantell Sackett of Idaho sought to erect but that the EPA claimed would harm wetlands. Concerns about the law's extensive reach over construction on private property were expressed by members of the court's conservative majority.

[High-stakes Clean Water Act challenge will be heard by the Supreme Court]

The new Biden regulation does not alter how the EPA handles situations when it claims its power is applicable because the wetlands are close to a sizable lake. According to Kevin Minoli, an attorney at Alston & Bird who worked as a career attorney at EPA under four presidents, a court decision that limits the agency's authority could necessitate some regulatory adjustments but might not otherwise overturn Biden's approach to water pollution.

The rule may nevertheless present further difficulties. If the EPA can claim that isolated wetlands and other bodies of water perform crucial tasks like holding floodwaters or offering habitat and food resources, he added, it enhances the agency's authority over such areas of land.

According to a Supreme Court decision from 2001, the government cannot claim that the Clean Water Act applies to solitary bodies of water by citing the presence of migrating birds.

This rule fully reinstates them, according to Minoli.