Biden to return to pre-Obama water protections in first step for clean water regulations

The Biden administration said on Friday that it’ll take a two-step approach to decide which U.S. waters should get federal protections from pollution, returning first to pre-Obama protections.

A statement from the Environmental Protection Agency (EPA) said that a “forthcoming foundational rule” would temporarily restore protections that were in place prior to an Obama-era expansion in 2015. 

Last year, the Trump administration put forward a rule that undermined both the Obama-era protections and also rolled back some  protections, including for wetlands,  that had been in place for decades. 

It appears that the step announced by the EPA on Friday would be a middle ground between the Obama- and Trump-era rules. 

The agency said that its initial rule would contain some “updates” to account for decisions issued by the Supreme Court. 

The second step would be an additional rule that will “refine this regulatory foundation” and create “an updated and durable definition of ‘waters of the United States,'” the agency said. 

The definition of what’s considered U.S. water is important because it governs which waters get protections from pollution under the Clean Water Act. 

“We are committed to crafting an enduring definition of WOTUS by listening to all sides so that we can build on an inclusive foundation,” Administrator Michael Regan said in a statement, referring to the Waters of the United States rule.

The statement also said that the administration will try to engage with stakeholders, including through 10 regional roundtables.

Mark Ryan, a lawyer who specializes in the Clean Water Act and worked at the EPA for more than 20 years, told The Hill he believes this two-step process is the agency’s only option for addressing the Trump rollback.

“It’s the only way to go about it. Legally I don’t think they have an option. No court has vacated the 2020 rule so the only way to get rid of it is to withdraw it,” he said, adding the move is likely to spark a legal challenge from opponents.

The administration previously announced last month that it would revise the Trump-era rule, saying that the rule is “leading to significant environmental degradation.”

Specifically, acting Assistant Secretary of the Army for Civil Works Jaime Pinkham said that the Trump rule caused a 25 percentage point drop in decisions that waters should get Clean Water Act protections.

But Regan has also vowed not to return “verbatim” to the Obama-era regulation, saying that both the Obama- and Trump-era rules “did not necessarily listen to the will of the people.”

Many Republicans, meanwhile, have pushed to keep the Trump rule in place. 

On Thursday, a group of Republicans introduced long-shot legislation aiming to codify the Trump-era rule, with Sen. Shelley Moore Capito (R-W.Va.) saying in a statement that the prior administration’s rule was “clear, commonsense policy that is in effect in 50 states.”

Ten Republicans wrote to Regan and Pinkham asking for more information on its basis for undoing the Trump rules in a letter released shortly before the EPA’s Friday announcement. 

They called statements made by administration officials “inconsistent with or absent from the few details that have actually been provided to [Environment and Public Works ] committee.”

Updated: 2:30 p.m.