Biden administration finalizes ‘middle-of-the-road’ water regulations

The Biden administration has issued new regulations for the country’s wetlands and waterways that are seen as a middle ground between previous actions by the Trump and Obama administrations.

The regulations define which waters get federal protections that would require businesses to obtain a permit for activities like construction that could damage water quality — and which do not. 

Environmental Protection Agency (EPA) Administrator Michael Regan said that the agency’s decision “safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”

The water regulations have been contentious, with proponents of strict rules arguing that protections are needed to protect the environment and to prevent pollution. Opponents of strict regulations argue that they are burdensome for industry.

Radhika Fox, the EPA’s top water official, told The Hill that the new rule is a “balanced, middle-of-the-road rule.”

“It is focused on balancing our essential job at the EPA to protect our nation’s water resources but to do it in a way that also provides clarity to all water users.”

When it  announced its intention to revise the nation’s water regulations in July 2021, the EPA said it would take a two-step approach, beginning with a “foundational rule” that would restore pre-Obama regulations and ending with a second rule that would “refine this regulatory foundation” and provide an “updated” definition of which waters are regulated. 

However, it’s now unclear whether the EPA will move forward with a second rule. Fox said the agency may or may not do so eventually, but will focus immediately on implementing its existing rule. 

“Our focus right now is on implementation,” Fox said. “Certainly as we learn from implementation, as we continue to get feedback, we may make future refinements but right now we’re focused on implementation, not a new rulemaking.”

Recent years have seen a significant back-and-forth over which waters should be regulated with the Obama administration rules being the most stringent and the Trump-era rules being the least stringent. 

For example, the Obama-era Clean Water Rule protected ephemeral streams — those that only have flowing water some of the time. The Trump-era rule did not protect such streams. 

The Biden administration rule, from both the EPA and the U.S. Army Corps of Engineers, is expected to sometimes give these streams protections.

“Ephemeral streams make up,  in terms of mileage,  probably the largest number of miles of streams in the United States,” said Mark Ryan, a former EPA attorney who worked on the Obama administration rules. “They’re very, very important in terms of water quality.”

Such changes had big impacts on dry states like Arizona, with most waters in the state losing federal protections  under the Trump administration’s actions. 

The EPA said that its new rule restores protections that were in place prior to the Obama administration and said that it will strengthen important protections for drinking water sources.

Ryan said that he expected the Biden rules to be “somewhat similar” to regulations from 1986 that were largely in place already after both the Obama and Trump rules faced difficulty in court. 

When it first proposed the rule last year, the EPA also said that due to the court actions, agencies had already been “implementing the pre-2015 regulatory regime nationwide.”

Nevertheless, Fox said that the new rule contains important updates that incorporate the latest science, streamline text and clarify certain categories of waters that are included and excluded from the regulations. 

She also said that the new rule provides more clarity on how to apply legal tests that can determine whether or not certain waters get protections. 

Ryan said that overall, he believes the Biden rules balanced practicality and potential court challenges with ensuring clean waterways are protected. 

“This is a practical approach that is more likely to survive judicial challenge and will do a fair job of protecting the nation’s waters,” Ryan said. 

Meanwhile Jon Devine, director of federal water policy at the Natural Resources Defense Council described the rule as “a step in the right direction” in a written statement while also saying that the country “still has significant work to do to fully protect important waters.”

On the other hand, Sen. Shelley Moore Capito (R-W.Va.) described the rule n a statement as “regulatory overreach” and said it will “unfairly burden America’s farmers, ranchers, miners, infrastructure builders, and landowners.”

The future of clean water regulations remains somewhat uncertain as the Supreme Court considers whether to limit the EPA’s authority on the matter in a case that particularly concerns wetlands. 

Republican Sen. Kevin Cramer (N.D.) questioned the fact that it came out before the Supreme Court ruled on the case, which had oral arguments in October. 

“The regulatory ping pong of WOTUS regulations will seemingly never end. Establishing a new WOTUS definition before the Supreme Court has ruled on Sackett v. EPA only adds to the regulatory confusion,” he said in a statement.

However, an administration official said that the court case looks at a fairly narrow issue — the case’s oral arguments focused primarily on when wetlands can be considered adjacent to regulated waters and thus receive protections —  while the water regulation applies to various types of waters. 

This story was updated 12:56 p.m.