The Biden administration said on Thursday it would re-establish the “waters of the United States” rule that was in place before 2015, a step that would repeal a narrow regulation written during the Trump era. The National Wildlife Federation said that “many streams and wetlands nationwide will regain undisputed 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 in announcing the proposed rule. The Biden administration said in June that it would write a new definition of the upstream reach of clean water laws. The new rule could be in place next year.
The 2020 Trump rule, called the Navigable Waters Protection Rule, replaced a 2015 Obama-era WOTUS regulation. Farm groups and real estate developers were among the most vocal opponents of the 2015 rule. Although the largest U.S. farm group said at the time that the rule would mean federal control over dry farm ditches, the Obama administration said the regulation would not alter long-standing exemptions for agricultural activities. Environmentalists said the Trump rule left half of U.S. wetlands and millions of miles of streams without protection from pollution.
“Today’s announcement from the EPA completely repudiates the Dirty Water Rule and sets out the legal standards the government intends to follow while it undertakes a new rulemaking process to durably identify the water bodies the law protects,” said Jon Devine of the Natural Resources Defense Council.
Federal courts in Arizona and New Mexico have overturned the Trump rule, and since September, the EPA and the U.S. Army Corps of Engineers, which also has jurisdiction over navigable waters, have employed the pre-2015 regulations. “The proposed rule would maintain the long-standing exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act on which the agricultural community has come to rely,” said the EPA.
The National Cotton Council said it preferred the 2020 rule. “Reverting to a 1980s-era ‘waters of the United States’ rule would be a mistake as it did not help American agriculture,” it said.
“Returning to the pre-2015 rule means a return to definitions expanded by EPA following the 2006 Supreme Court ruling in Rapanos v. U.S., including the so-called ‘significant nexus’ determination that was a feature of the 2015 rule,” said DTN/Progressive Farmer. There were many unresolved arguments over how to interpret a ‘significant nexus’ between smaller waterways and traditional navigable waters.