EPA to revise Trump rollback to water pollution protections

The Environmental Protection Agency (EPA) on Wednesday officially announced that it plans to revise a Trump-era rule that limited what waters receive federal protections from pollution.

In a statement, EPA Administrator Michael Regan said the agency, along with the Army, has determined the rule that’s currently in place is “leading to significant environmental degradation.”

Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham said in a statement that the Trump-era rule caused a 25 percentage point drop in decisions that waters should get Clean Water Act protections.

“The Navigable Waters Protection Rule has resulted in a 25 percentage point reduction in determinations of waters that would otherwise be afforded protection,” Pinkham said.

The Biden administration was widely expected to make changes to the Trump policy, but Wednesday’s announcement represents a formal step to get there, with the Justice Department asking a court to send the rule back to the agency for new rulemaking.

In its request, which doesn’t ask for the existing to be vacated, government lawyers argued that this course of action would allow them to avoid taking positions “that might appear to pre-judge issues that will be reconsidered through notice-and-comment rulemaking.”

It said in a statement that the new effort will be guided by considerations including protecting water resources and reflecting input from landowners and the agricultural community.

The Trump-era rule in question limited which waters receive protections under the Clean Water Act, excluding certain types of wetlands and streams, including streams that only flow when it rains or when snow melts.

It replaced an Obama-era rule that argued those bodies of water must be protected to stop pollution from reaching larger sources, including those used for drinking water.

The Trump administration said the rule promulgated by its predecessor was too broad and required major efforts to protect relatively small bodies of water.

In new court declarations, Pinkham and EPA official Radhika Fox, who has been nominated to lead the agency’s Office of Water said that certain statements in the Trump rule’s preamble “call into significant question whether the  agencies’ consideration of science and water quality impacts” were significant with the goals of the Clean Water Act.

“The agencies explicitly and definitively stated …that they did not rely on agency documents in the record that provided some limited assessment of the effects of the rule on  water quality,” the declarations said.

Data obtained by E&E News around the time that the Trump rule was proposed found that under it, 18 percent of streams and 51 percent of wetlands wouldn’t be protected.

The statement released by the EPA indicated that the impact of the rule is particularly stark in arid states including New Mexico and Arizona where regulations have been found not to apply to almost every stream.

The agencies also identified 333 projects that would no longer require clean water permits under the new rule.

Defining which waters receive federal protections under the Clean Water Act has been an area of contention among environmentalists and the agricultural community, as farms may want to discharge waste into streams.

During a recent House hearing, Regan pledged not to return “verbatim” to the Obama-era regulation, saying that both the Obama and Trump-era rules “did not necessarily listen to the will of the people.”

In a separate Senate hearing on Wednesday that took place prior to the hearing, lawmakers on both sides of the aisle raised concerns about such regulations.

Sen. Lisa Murkowski (R-Alaska) said the rule should not be “overreaching” while Sen. Martin Heinrich (D-N.M.) said that the current rule is “horribly written” and should be promptly revisited.

“What I’m committed to is engaging with the secretary of [agriculture], with the Army Corps of Engineers, with the agriculture community and with the communities that are impacted in congress to best understand, how do we have a long-term, durable solution and not continue to have to ping-pong it back and forth,” Regan said in response to Murkowski. 

— Zack Budyrk contributed to this report which was updated at 3:58 p.m.