Biden Administration Announces Roll Back of Trump-Era Waters of the U.S. Rule

The Environmental Protection Agency (EPA) announced this week that it plans to revise a Trump-era rule that limits the types of water bodies that warrant federal protection from pollution.

The scope of the waters of the U.S. rule is important to energy marketers because it largely determines whether costly land use restrictions will be imposed on new building or expansion projects or whether such projects can move forward at all. The Trump rule limited which waters receive protections under the Clean Water Act, excluding certain types of wetlands and streams, including those that only appear as a result of rain or snow melt.

The Trump rule replaced an Obama-era rule that expanded protection for those streams and wetlands in order to prevent pollution from reaching larger sources, including those used for drinking water.

According to the EPA and Army Corps of Engineers, the Trump-era rule resulted in a 25 percent drop in waters that qualify for Clean Water Act protections. This week, the Administration instructed the Justice Department to seek a court order requiring the rule be sent back to the EPA and Army Corp of engineers for a new rulemaking.

In new court declarations filed this week, Justice Department lawyers argued that the rule must be sent back for reconsideration because statements in the rule’s preamble call into question whether the EPA and Army considered scientific evidence and water quality impacts when narrowing the scope of protection for these waters.

The language at issue in the preamble is a statement by EPA and Army that they did not rely on agency documents in the record when narrowing the types of water that merit protection, a clear violation of both the Clean Water Act and the Administrative Procedure Act which establishes the process federal agencies must follow when promulgating rules.

The EPA said it expects to issue a proposed rulemaking on a new waters of the U.S. later this year.

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