NAAA eNewsletter - 01/12/2023

The Biden administration imposed a rule on Dec. 30 expanding the definition of waterways that the EPA and the Army Corp of Engineers have authority to regulate, a move that the predecessor Obama and Trump administrations addressed, seeking to clarify a decade-long effort of what the EPA’s powers are under the Clean Water Act (CWA). The Biden-imposed rule comes before a pending Supreme Court case expected to be issued later this year that NAAA and other stakeholders had hoped the administration would take into account before prematurely imposing a rule.

The EPA said its rule strikes a balance it hoped would protect waterways as well as commerce, returning its Waters of the United States regulatory framework to something resembling its state in 2015. That year, the Obama administration significantly and controversially widened the scope of the Clean Water Act to cover even ephemeral streams and ponds; President Trump mitigated the EPA’s water pollution authority with a 2019 rule of his own.

In broadening the federal government’s powers under the CWA once again, EPA 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.”

The rule has been a flashpoint because advocates 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 U.S. Chamber of Commerce suggested that the Biden rule would only add to regulatory uncertainty and unpredictability. Conversely, the environmental activist Natural Resources Defense Council called the Biden rule “sensible, good-government action.” The environmental group criticized the Trump rule but said the Biden rule would bring wetlands and waterways back under the EPA’s regulatory authority, though it would not go as far as Obama’s 2015 rule. The Biden administration said it would redefine EPA oversight as covering “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, with adjustments based on court rulings and newer science, the EPA said.

The rule goes into effect 60 days after it is published in the Federal Register, which will be soon.