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Biden administration will replace Trump clean water rule

Shortly after telling senators that he wanted a “long-term, durable solution,” EPA administrator Michael Regan said on Wednesday that the Biden administration would write a new definition of the upstream reach of clean water laws. The process would include repeal of the 2020 Trump-era rule that replaced 2015 Obama water regulations the farm sector decried as federal overreach.

Trump’s Navigable Waters Protection Rule “is leading to significant environmental degradation,” said Regan in a joint statement with the U.S. Army Corps of Engineers. Regan said the new “waters of the United States” definition would be based on Supreme Court precedent and “lessons learned from the current and previous regulations.”

The Justice Department was expected to file a motion in federal court, where the Trump rule is under challenge, to return the Navigable Waters rule to EPA custody. The motion is a reflection of the administration’s “intent to initiate a new rulemaking process that restores the protections in place before the 2015 WOTUS implementation,” said the EPA.

Farm groups and real estate developers were among the most vocal opponents of the 2015 WOTUS rule. The largest U.S. farm group said the rule would mean federal control over dry farm ditches, although the Obama administration insisted it would not alter long-standing agricultural exemptions. As a candidate, Donald Trump said the WOTUS rule was unconstitutional, and as president, he directed its replacement. The Navigable Waters Protection Rule said the clean water law applied to oceans, rivers, core tributaries, and adjacent wetlands. Environmentalists said it left half of U.S. wetlands and millions of miles of streams without protection from pollution.

Under the Trump rule, “nearly every one of over 1,500 streams assessed” in Arizona and New Mexico “has been found to be nonjurisdictional,” said the EPA. Jaime Pinkham, acting assistant Army Corps secretary, said there had been a 25 percent decline in determinations of waters that qualified for protection.

“I just think this rule was horribly written,” said Sen. Martin Heinrich, New Mexico Democrat, during a budget hearing with Regan. Heinrich said “major portions” of the Santa Fe River, a key source of drinking water for the city of Santa Fe, were not covered by the Navigable Waters rule because they flowed seasonally, during snowmelt.

Republican Sen. Lisa Murkowski criticized the 2015 WOTUS rule as a confounding “showstopper” in Alaska, where “approximately two-thirds of the state … is already considered wetlands.” She warned against unduly intrusive water regulations.

“We are evaluating the path forward,” replied Regan. He cited “complexities” in the Obama rule and “what I believe to be an abdication of some responsibilities for water-quality protection under the current rule. There are lessons to be learned from both.” Regan said he would work with all sides “to best understand how do we have a long-term, durable solution and not continue to have the ping-pong back and forth.”

Clean Water Action, an environmental group, welcomed the plan for a new clean water rule and called for repeal of the Trump rule. “The Navigable Waters Protection Rule is not based on science and prioritizes shielding polluters over protecting impacted communities,” said the group.

“This is a gut punch to Iowans,” said Republican Sen. Joni Ernst, who supports the “clearer, more flexible rule” written by the Trump EPA.

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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