EPA, Army plan to revise WOTUS angers GOP, pleases Carper, environmentalists
After the Environmental Protection Agency and Department of the Army announced Wednesday they intend to repeal the Trump administration’s definitions of the waters of the United States and rewrite the definition, Republicans in Congress expressed anger while Senate Environment and Public Works Committee Chairman Tom Carper, D-Del., and environmentalists said they were pleased.
EPA said it would ask the Justice Department to “remand” the 2020 Navigable Waters Protection Rule because “a broad array of stakeholders — including states, Tribes, local governments, scientists, and non-governmental organizations — are seeing destructive impacts to critical water bodies under the 2020 rule.”
“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” said EPA Administrator Michael Regan. “We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”
“Communities deserve to have our nation’s waters protected. However, the Navigable Waters Protection Rule has resulted in a 25 percentage-point reduction in determinations of waters that would otherwise be afforded protection,” said Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham. “Together, the Department of the Army and EPA will develop a rule that is informed by our technical expertise, is straightforward to implement by our agencies and our state and Tribal co-regulators, and is shaped by the lived experience of local communities.”
“The lack of protections is particularly significant 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,” agencies said, adding that they are “aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do.”
Sens. Kevin Cramer and John Hoeven, both North Dakota Republicans, said they were disappointed by the decision, but will work vigorously to make sure the new rule treats North Dakota well.
“North Dakota, which sits in the heart of the Prairie Pothole Region, is greatly impacted by Waters of the United States regulations,” Cramer said. “It’s a shame the Biden administration wants to undo the good work of the Trump administration, which repealed the illegal Obama-era rule and replaced it with a workable policy that falls within the confines of the law. Fortunately, North Dakota is well-positioned in the event of overreach thanks to the leadership of our Attorney General Wayne Stenehjem. I appreciate the recent visit by Administrator Regan where this issue was discussed; and the commitment of Radhika Fox, EPA’s head of water policy, to hold a Waters of the United States listening session in our state to hear from our stakeholders. I look forward to facilitating that opportunity for North Dakotans so they can voice their concerns and priorities to the administration.”
Hoeven said the Obama administration’s Waters of the United States Rule, which the Trump administration replaced with the Navigable Waters Protection Rule (NWPR), “was a significant overreach that threatened real harm to our economy and the livelihoods of Americans across the country. WOTUS was a mistake that must not be repeated. That’s why we will continue working to preserve the NWPR and protect against one-size-fits-all federal regulations.”
Hoeven noted that last week, when Regan traveled to North Dakota at Cramer’s invitation, he urged Regan “to ensure regulatory certainty and support commonsense, state-led approach to regulation, rather than reviving unworkable, one-size-fits-all regulations from the past like the 2015 WOTUS rule.”
Sen. Roger Marshall, R-Kan., said, “This is the administration’s attempt to revive the Obama-era WOTUS rule, which was already blocked by the courts, and is further proof of the clear disconnect between D.C. bureaucrats and those who work the land day in and day out.”
Rep. Dan Newhouse, R-Wash., chairman of the Western Congressional Caucus, said, “Just as predicted, the Biden administration announced its intent to dismantle the Navigable Waters Protection Rule – a move that threatens the livelihoods of many in rural America. Further, the administration points to the arid West in its examples of areas where the federal government no longer has jurisdiction over local waters, yet they run to the urban northeast to seek court action. The Obama-era WOTUS rule they are seemingly trying to reinstate created uncertainty for farmers, ranchers, businesses, and landowners throughout rural communities, and they now face the same unpredictable future.”
Rep. Glenn “GT” Thompson, R-Pa., ranking member on the House Agriculture Committee, said, “President Trump’s Navigable Waters Protection Rule provided long-overdue certainty and clarity for landowners affected by the scope of Waters of the United States jurisdiction. The process laid out in today’s announcement by the EPA and Army Corps is a step backward that will return farmers and ranchers to regulatory confusion. If the disastrous 2015 Obama-Biden rule is any indication of where EPA is headed, rural America is in trouble. I implore the Biden administration to retain the current WOTUS definition and to not engage in another massive land grab through government overreach.”
Rep. Mariannette Miller-Meeks, R-Iowa, noted that she has introduced legislation to uphold the NWPR “because rural communities throughout the United States are dedicated to clean water, and they don’t deserve to be punished by burdensome federal regulations.”
Carper, the EPW chairman, said, “Today’s announcement is a welcome sign that the Biden administration is committed to getting it right when it comes to protecting our nation’s waters. Among its many faults, the previous administration’s Navigable Waters Protection Rule ignored science and put downstream communities — many of them disadvantaged — at an increased risk of being exposed to pollution. EPA now has an opportunity to learn from its previous regulatory efforts and work in an inclusive way to create a rule that stands the test of time.”
John Rumpler, senior attorney and clean water program director for Environment America, a national network of 29 state environmental groups, said, “By committing to repealing and replacing the Dirty Water Rule, EPA Administrator Michael Regan has taken a vital step for America’s rivers, lakes and bays – and for the drinking water of millions of Americans. To prevent further degradation of our waters, we call on the administration to rescind this Trump-era rule in 90 days or less.”
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