EPA to Rewrite Trump Clean Water Rule

AFBF's Duvall Calls Biden Proposal to Ditch Trump Rule 'Extremely' Disappointing

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The EPA on Wednesday announced a proposal to redefine waters of the United States in the Clean Water Act. (DTN photo by Mary Kennedy, illustration by Nick Scalise)

LINCOLN, Neb. (DTN) -- With the Biden administration announcing on Wednesday that it was working on a proposed change to the navigable waters definition in the Clean Water Act, the head of the nation's largest farm group said the decision to remand the Trump administration's Navigable Waters Protection Rule was a blow to agriculture.

The Biden EPA and the U.S. Army Corps of Engineers said in a news release Wednesday the Trump rule has led to a degradation in protection of waters. The agencies asked a federal court to remand the Trump rule, to allow for what will be the third rewrite in the past 12 years.

American Farm Bureau Federation President Zippy Duvall said in a statement late Wednesday his group was "extremely disappointed" in the decision to move on from the Trump rule that he said "brought clarity" to farmers and ranchers.

"Administrator (Michael) Regan recently recognized the flaws in the 2015 waters of the U.S. rule and pledged not to return to those overreaching regulations," Duvall said.

"We are deeply concerned that the EPA plans to reverse the Navigable Waters Protection Rule, which puts the future of responsible protections at risk. We expected extensive outreach, but today's announcement fails to recognize the concerns of farmers and ranchers."

Just last week Regan visited North Dakota where he met with federal and state lawmakers, as well as members of farm and environmental groups.

Rep. Kelly Armstrong, R-N.D., said in a statement on Wednesday night he's hopeful EPA will listen to the concerns of farmers and ranchers in drafting another rule.

"The waters of the United States rule (2015) would have been a disaster for North Dakota's farmers and ranchers," Armstrong said. "The Trump administration was right to revise the WOTUS rule and put forward a policy that strikes a balance to keep our waters clean without destroying thousands of North Dakotans' livelihoods. I am grateful to Administrator Regan for coming to North Dakota and listening to our concerns on this rule, and I urge the Biden administration to consider the harm to our communities that going back to failed one-size-fits-all policies would cause."

The agency filed a motion for remand of the Trump rule on Wednesday in the U.S. District Court for the District of Massachusetts -- one of several ongoing legal cases. The Biden administration had until May 2021 to conduct a review of the Navigable Waters Protection Rule.

Tony Francois, senior counsel for the Pacific Legal Foundation, which represent clients in ongoing water rule lawsuits, told DTN the legal fights will continue.

He said for decades the agencies have used a "comically expansive definition of both 'navigable' and 'water'" to "impose their regulatory control over vacant lots in built-out subdivisions, mud puddles on private property, seasonal ponds on farms and ranches, and foot-wide trickles deep in the woods."

Francois said the 2020 water rule adopted a "substantially narrower" definition of navigable waters that reduced the reach of the Clean Water Act.

"The proper scope of the Clean Water Act is a matter of legal principle, not politics, and it is beyond time for the federal courts to clarify and reasonably limit its scope," he said.

Regan said in a news statement the Trump rule -- widely supported by agriculture interests -- is "leading to significant environmental degradation."

The agency pointed to "lack of protections" in arid states like New Mexico and Arizona, "where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do."

The EPA said a new regulatory effort would be guided by a number of considerations.

That includes protecting water resources and communities consistent with the Clean Water Act, considering the latest science and the effects of climate change on waters, and emphasizing a rule with a "practical-implementation approach" for states and tribes.

The EPA said the new rule would reflect the "experience of and input received from landowners, the agricultural community that fuels and feeds the world, states, tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns."

The EPA and the U.S. Army Corps of Engineers said they are "committed to meaningful stakeholder engagement to ensure that a revised definition of WOTUS considers essential clean water protections, as well as how the use of water supports key economic sectors."

The agencies said in Wednesday's court filing that remand of the rule and dismissal of the case will allow a rewrite of the rule.

"The agencies have identified numerous concerns with the NWPR, many of which have been raised by plaintiffs in this case and intend to evaluate those concerns through a new notice-and-comment rulemaking," the agencies said in their court motion.

"Agencies have committed to reconsidering the challenged action, the proper course is remand to allow the agencies to address their concerns through the administrative process."

In April 2020, the Conservation Law Foundation and a number of environmental groups sued EPA in the federal court in Massachusetts. That case and a number of others have been on hold pending a Biden review of the current rule.

Earthjustice expressed disappointment in the Biden announcement.

"Today's action falls well short of the Biden administration's commitments to protecting our environment and communities," said Julian Gonzalez, legislative counsel for healthy communities at Earthjustice.

"We are urging the EPA to swiftly extend full clean Water Act protections to all the nation's waters, as they are urgently needed to stop destruction from industry polluters caused by Trump's dirty water rule."

Read more DTN coverage here:

"Court Asked to Vacate Trump Water Rule," https://www.dtnpf.com/…

"Court Stays Trump Water Rule Lawsuit," https://www.dtnpf.com/…

"Water Rule Future Remains in Question," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley