The Biden administration intends to revive federal environmental protections for millions of streams, marshes and other bodies of water across the country that had been eliminated by former President Donald Trump in his quest to please homebuilders, farmers and ranchers.
The Environmental Protection Agency (EPA) made the announcement Wednesday after it said it had found that the changes under Trump caused "significant environmental degradation."
The problem is particularly glaring in arid states such as New Mexico and Arizona, where nearly every one of more than 1,500 streams lost environmental protections under the Trump rules, said Michael Regan, administrator of the EPA. More than 300 development projects were able to go forward without regard to whether they were polluting streams or waterways under the changes made by Trump, the EPA said.
It marked the latest in a series of decisions by President Joe Biden to restore environmental protections that Trump had weakened or repealed, and it sets the stage for a regulatory and legal battle over an issue that has pitted environmental groups against agricultural interests for decades.
The effort also will be a test for Regan, who came to Washington with a reputation as a consensus builder who could find common ground between industry and environmentalists. In a statement Wednesday, Regan said the agency is "committed to establishing a durable definition of 'waters of the United States'" and added that he intends to draw "from the lessons learned" from the Obama and Trump administrations.
By starting early to revise the policy, the Biden administration stands a greater chance of defending it against the legal challenges that are expected to come, said Richard Revesz, a professor of environmental law at New York University. "That makes it much more likely it will stick," Revesz said.
Republicans on Wednesday criticized the move and vowed to fight it, saying Trump's policy had protected farmers and removed what many felt were onerous cleanup burdens. Sen. Joni Ernst, R-Iowa, called it a "gut punch" to her state. Sen. John Boozman, R-Ark., dubbed it a "Biden administration power grab."
The original measure, known as the Waters of the United States rule, dates to the Obama administration and extended the range of bodies of water that were subject to the 1972 Clean Water Act, an issue that had for decades lacked clarity.
The Obama administration protected about 60% of the nation's waterways, including large bodies of water such as the Chesapeake Bay, Mississippi River and Puget Sound, and smaller headwaters, wetlands, seasonal streams and streams that run temporarily underground. It limited the discharge of pollutants such as fertilizers, pesticides and industrial chemicals into those waters.
Trump repealed the policy in 2019, calling it "one of the most ridiculous regulations of all," and claimed that his repeal caused farmers to weep in gratitude. One year later, his EPA finalized the Navigable Waters Protection Rule, which removed protections for more than half of the nation's wetlands and hundreds of thousands of miles of upland streams by narrowing the definition of what constitutes a "water of the United States."
In doing so, Trump framed the change as the rightful return of power from the federal government to landowners and states. In a statement on Wednesday, Chuck Fowke, chairman of the National Association of Homebuilders, expressed concern that changes to the water rule will "add unnecessary requirements" that will hurt housing affordability.
The announcement did not start the process of revising the regulation. That will come when the EPA officially promulgates a proposed new rule, possibly later this year. Wednesday's action was a legal move in which the Department of Justice and Department of the Army formally requested repeal of the Trump-era rule.
