Tuesday, January 31st, 2023
Tuesday, January 31st, 2023

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EPA finalizes waters rule that’s been in a state of constant flux

President Joe Biden’s administration on Dec. 30 finalized regulations that protect hundreds of thousands of small streams, wetlands, and other waterways. (Contributed photo by Evan Kwityn)

St. Louis — President Joe Biden’s administration on Dec. 30 finalized regulations that protect hundreds of thousands of small streams, wetlands, and other waterways, repealing a Trump-era rule that federal courts had thrown out and that environmentalists said left waterways vulnerable to pollution.

The rule defines which “waters of the United States” are protected by the
Clean Water Act. For decades, the term has been a flashpoint between
environmental groups that want to broaden limits on pollution entering
the nation’s waters and farmers, builders, and industry groups that say
extending regulations too far is onerous for business.

The Environmental Protection Agency and the Department of the Army said the
reworked rule is based on definitions that were in place prior to 2015.
Federal officials said they wrote a “durable definition” of waterways
to reduce uncertainty.

In recent years, however, there has been a lot of uncertainty. After the
Obama administration sought to expand federal protections, the Trump
administration rolled them back. A federal judge rejected that effort.
And a separate case is currently being considered by the Supreme Court
that could yet upend the finalized rule.

“We have put forward a rule that’s clear, it’s durable, and it balances
that protecting of our water resources with the needs of all water
users, whether it’s farmers, ranchers, industry, watershed organizations,” Radhika Fox,
EPA assistant administrator for water, told the Associated Press.

The new rule is built on a pre-2015 definition, but is more streamlined and
includes updates to reflect court opinions, scientific understanding,
and decades of experience, Fox said. The final rule will modestly
increase protections for some streams, wetlands, lakes, and ponds, she said.

The Trump-era rule, finalized in 2020, 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.

Environmental groups and public health advocates countered that the Trump rule
allowed businesses to dump pollutants into unprotected waterways and
fill in some wetlands, threatening public water supplies downstream and
harming wildlife and habitat.

“Today, the Biden administration restored needed clean water protections so
that our nation’s waters are guarded against pollution for fishing,
swimming, and as sources of drinking water,” Kelly Moser, senior attorney for the
Southern Environmental Law Center’s Clean Water Defense Initiative,
said in a statement.

Jon Devine, director of federal water policy for the Natural Resources
Defense Council, called repealing the Trump-era rule a “smart move” that
“comes at a time when we’re seeing unprecedented attacks on federal
clean water protections by polluters and their allies.”

But Republican Sen. Shelley Moore Capito called the rule “regulatory
overreach” that will “unfairly burden America’s farmers, ranchers,
miners, infrastructure builders, and landowners.”

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.

In August 2021, a federal judge threw out the Trump-era rule and put back in place
a 1986 standard that was broader in scope than the Trump rule but
narrower than Obama’s. U.S. District Court Judge Rosemary Marquez in
Arizona, an Obama appointee, said the Trump-era EPA had ignored
its own findings that small waterways can affect the well-being of the
larger waterways into which they flow.

Meanwhile, Supreme Court justices are considering arguments from an Idaho couple
in their business-backed push to curtail the Clean Water Act. Chantell
and Michael Sackett wanted to build a home near a lake, but the EPA
stopped their work in 2007, finding wetlands on their property were
federally regulated. The agency said the Sacketts needed a permit.

The case was heard in October and tests part of the rule the Biden
administration carried over into its finalized version. Now-retired
Justice Anthony Kennedy wrote in 2006 that if wetlands “significantly
affect the chemical, physical, and biological integrity” of nearby
navigable waters such as rivers, the Clean Water Act’s protections
apply. The EPA’s rule includes this test. Four conservative justices in
the 2006 case, however, said that federal regulation only applied if
there was a continuous surface connection between wetlands and an
obviously regulated body of water like a river.

The Biden rule applies federal protections to wetlands, tributaries, and
other waters that have a significant connection to navigable waters or
if wetlands are “relatively permanent.” The rule sets no specific distance for when
adjacent wetlands are protected, stating that several factors can
determine if the wetland and the waterway can impact water quality and
quantity on each other. It states that the impact “depends on regional
variations in climate, landscape, and geomorphology.”

For example, the rule notes that in the West, which typically gets less
rain and has higher rates of evaporation, wetlands may need to be close
to a waterway to be considered adjacent. In places where the waterway is
wide and the topography flat, “wetlands are likely to be determined to
be reasonably close where they are a few hundred feet from the tributary
…,” the rule states.

Fox said the rule wasn’t written to stop development or prevent farming.

“It is about making sure we have development happening, that we’re growing
food and fuel for our country, but doing it in a way that also protects
our nation’s water,” she said.

Minnesota has its own statutes that provide waters protection. To read more about them, visit: www.pca.state.mn.us/businesswith-us/water-quality-standards

(Story written by Jim Salter and Michael Phillis / Associated Press)

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