Photo by Carolyn Fortuna / CleanTechnica

EPA Can Now Regulate Waterways — A Huge Shift After A Decade Of Legal Challenges

January 2, 20232 years ago Carolyn Fortuna 0 Comments

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It’s amazing what difference a US federal rule can make. With the stroke of an Executive Office pen, the US Environmental Protection Agency (EPA) is now able to regulate and protect hundreds of thousands of small streams, wetlands, and other waterways,

The rule change happened on Friday, when the Biden-Harris administration revised the EPA’s oversight role in conjunction with waterways. The regulation determines how broadly the government can enforce the Clean Water Act, which is designed to improve the health of polluted and degraded rivers and lakes.

The shift reverses a Trump-era modification. It has the potential to supersede what has been nearly a decade of challenges to EPA authority. Then again, the EPA’s purview to regulate waterways isn’t a completely done deal, as the majority (and very conservative) Supreme Court has a case pending on the matter.

“Waters of the United States” is a threshold term in the Clean Water Act and establishes the geographic scope of federal jurisdiction under the Act. A series of 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters.” The Clean Water Act does not define “waters of the United States;” rather, the Clean Water Act provides authority for EPA and the US Department of the Army to define “waters of the United States” in regulations.

In the newest iteration, federal officials said they have written a “durable definition” of waterways to reduce uncertainty.

The Department of the Army collaborated with the EPA over language regarding filling regulated bodies of water with dredge spoils or other materials, as the Army Corps of Engineers has authority over any resulting regulatory actions. “The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders,” Michael L. Connor, the Army’s assistant secretary for civil works, offered in a statement.

Why Should You Care about the EPA’s Ability to Regulate Waterways?

In the US, we promote a cultural mythology that we are the greatest country in the world. If that were indeed so, then it stands to reason, as the Biden-Harris administration declared in 2021, that every person in the US deserves to breathe clean air, drink clean water, and eat safe food — free of chemicals and pollutants that harm the health and well-being of children, families, and communities.

The revised Waters of the United States rule is a core step toward restoring the vitality of impaired waterways and at-risk wildlife habitats because it gives federal and state governments powers to limit the flow of pollutants, including livestock waste, construction runoff, and industrial effluent. No longer will businesses be allowed to dump pollutants into unprotected waterways and fill in some wetlands, threatening public water supplies downstream and harming wildlife and habitat.

The current revision returns many wetlands and waterways previously restricted by the Trump administration back to the EPA’s regulatory authority, although it doesn’t have the entire latitude that the Obama-Biden administration’s 2015 rule did. In 2023 the EPA is allowed oversight to include “traditional navigable waters,” including interstate waterways and upstream water sources that influence the health and quality of those waterways. The definition is based on legal framework established before 2015, more recent court rulings, and updated scientific analysis.

What Do Opponents of the EPA’s New Ability to Regulate Waterways Say?

While the the Biden-Harris version of the Waters of the United States rule is less expansive than that of the Obama administration, Republicans are, nonetheless, critiquing it as excessive and burdensome. “The rule announced today is the latest round of regulatory overreach regarding what waters are subject to regulation under the Clean Water Act, and will unfairly burden America’s farmers, ranchers, miners, infrastructure builders, and landowners,” Senator Shelley Moore Capito (R-WV) said in a statement.

Lobbyists for industry and property rights say it is overly costly and impractical when applied to wetlands that can be difficult to define or streams that run only for part of the year. The US Chamber of Commerce insists that the Biden-Harris rule simply infuses more regulatory uncertainty and unpredictability, which could stymie the planning and construction of major government-funded infrastructure projects.

The EPA rebutted that its rule strikes a balance it hoped would protect waterways as well as commerce.

A Chronology of the Clean Water Act & the Waters of the United States Framework

A 2001 Supreme Court ruling said the government could not use the presence of migratory birds to assert that the Clean Water Act applies to isolated bodies of water.

Justice Anthony Kennedy wrote in 2006 that if wetlands “significantly affect the chemical, physical, and biological integrity” of nearby navigable waters like rivers, the Clean Water Act’s protections apply.

The 2015 rule under the Obama-Biden administration gave the federal government authority to oversee a wide array of lakes, streams, wetlands, storm-water controls, and ditches feeding into larger waterways that had seemed protected under the 1972 Clean Water Act. It was a controversial expansion of EPA powers that supercharged political debate.

When Donald Trump took over the Executive Office, his administration significantly weakened the EPA’s water pollution authority by again redefining the rule in 2019. In doing so, he returned the country to standards put in place in 1986. Trump deemed it “the elimination of this very destructive and horrible rule.” Finalized in 2020, the reduced scope rule was long sought by builders, oil and gas developers, farmers, and others who complained about federal overreach that they said stretched into gullies, creeks, and ravines on farmland and other private property.

The Natural Resources Defense Council determined that Trump’s much narrower definition of the EPA’s ability to regulate waterways would remove federal protections from roughly half the nation’s wetlands and at least 1.19 million miles of rain-dependent streams and rivers.

A 2021 review by the Biden administration found that the Trump rule allowed more than 300 projects to proceed without the federal permits required under the Obama-era rule and that the Trump rule significantly curtailed clean water protections in states such as New Mexico and Arizona.

The Waters of the United States regulatory framework for 2023 is similar to that which the Obama administration redefined within the Clean Water Act. The Biden administration’s action comes ahead of an expected Supreme Court ruling that could limit EPA authority. The Supreme Court heard a case in October, 2022 concerning a home that Idaho couple Michael and Chantell Sackett planned to build but that EPA said would disturb wetlands. Members of the court’s conservative majority raised concerns about the law’s broad reach over development on private property.

Addressing the change in EPA’s authority to regulate waterways in 2023, administrator Michael Regan said the agency aimed “to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”