This story was updated at 5:07 p.m. EST.
The Biden administration today moved to formally scrap President Trump’s signature Clean Water Act rule off the books.
But exactly when EPA will float a new definition for what constitutes a “water of the U.S.,” or WOTUS — and which wetlands and streams receive federal protection — is not yet clear.
EPA Administrator Michael Regan and Jaime Pinkham, a top Biden official overseeing the Army Corps of Engineers, signed a proposed rule today that would scrap the Trump-era Navigable Waters Protection Rule, which pulled back protection for many wetlands and streams across the country, and replace it with more restrictive pre-2015 rules. The proposal is open to public comment for 60 days upon being published in the Federal Register.
Regan in a statement noted that “whiplash” from shifting definitions of WOTUS has created uncertainty and that his agency is continuing outreach to find a definition that protects public health and the environment, including downstream communities, while supporting agriculture and other industries reliant on clean water.
EPA also pointed to recent rulings in district courts in Arizona and New Mexico to vacate the Trump-era rule, which the agency said reinforces the need for a “stable and certain” definition.
EPA and the Army Corps reverted to pre-2015 Clean Water Act regulations since those decisions came down. EPA today said the proposed rule would “maintain the longstanding 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.”
EPA’s move today could clear up what some experts say is confusion about whether that Arizona ruling vacated the rule across the nation — not just in Arizona — even though EPA and the Army Corps are no longer implementing the regulation (Greenwire, Oct. 26).
Kevin Minoli, a former career lawyer at EPA, said that the 290-page proposal EPA released today presents significant regulatory changes that will get a lot of scrutiny during the public comment period and eventually from the courts.
Minoli said the proposed rule demonstrates that career staffers at the federal agencies have put in a “tremendous amount of work in an effort to build a scientific foundation for the proposal” and that “ultimately, it will be the courts that tell us whether they were successful in that effort.”
Minoli also said that “this is not simply a re-codification of the 1986 regulations” and that “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.”
Today’s decision drew a partisan response, with Republicans warning the rule would frustrate infrastructure and applause from Sen. Tom Carper (D-Del.), chair of the Senate Environment and Public Works Committee, who said the proposal “paves the way for EPA and the Army Corps 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.”
But Rep. Sam Graves of Missouri, ranking Republican on the House Transportation and Infrastructure Committee, tweeted, “This is another example of how this Administration is actively making it harder to improve infrastructure and address the supply chain crisis.”
