The Environmental Protection Agency and the Army Corps of Engineers announced a proposed rule on Thursday that would undo a Trump administration rollback of water regulations.
The proposal would reintroduce the definition of the “waters of the United States” that had been in place through 2015, a broader category than what was established under President Donald Trump. The EPA said the new definition would be “updated to reflect consideration of Supreme Court decisions.”
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“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” EPA Administrator Michael Regan said in a statement. “Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”
The U.S. District Courts for both Arizona and New Mexico have vacated the Trump-era Navigable Waters Protection Rule, which the previous administration finalized last January, and remanded the rule back to the EPA and the Corps for revision.
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That rule outlined four types of waters covered by federal protections: traditional navigable waters, such as seas and rivers, streams that flow into traditional navigable waters, wetlands right next to covered waters, and certain lakes, ponds, and impoundments, replacing the Obama-era rule, which had included many ditches, streams, and smaller water reservoirs to be subject to pursuant Clean Water Act regulations.
The Obama-era WOTUS rule also ran afoul of multiple courts, and the Biden EPA committed to returning to the protections in place prior to the Obama administration rule while it writes a new one.
Regan said during a congressional hearing in June that the EPA is “evaluating the path forward because we believe that we’ve got some lessons learned from previous actions,” including both the Obama and Trump administration rules.
Republican Sen. Shelley Moore Capito, ranking member of the Environment and Public Works Committee, criticized the agencies’ move to reinstitute the old rule in the interim and said stakeholders can expect a final regulation “which will likely be even more stringent than the Obama administration’s 2015 WOTUS rule.”
