EPA Adopts New Water Protection Regulations, Repealing Trump-Era Rule

The U.S. Environmental Protection Agency sign is seen on the podium at EPA headquarters in Washington on July 11, 2018. Ting Shen/Reuters

The Biden administration finalized Environmental Protection Agency (EPA) regulations that expand protections for rivers, lakes, streams, wetlands, and waterways while simultaneously repealing a Trump-era rule on the matter.

The EPA said the revised rule (pdf), issued on Dec. 30, 2022—which clarifies the types of bodies of water protected by the federal government under the Clean Water Act—is based on definitions that were in place before 2015, when the Obama administration took a similar approach seeking to expand federal protections.

The Trump administration later narrowed the definitions, a move that was praised by builders, oil and gas developers, farmers, and others who complained about federal overreach and raised concerns that the federal government would regulate ravines and creeks on private property.

U.S. District Judge Rosemary Marquez for the District of Arizona threw out the Trump-era rule based on the fact that it allegedly ignored that smaller waterways could affect the health of the waterways into which they flow.

Former President Donald Trump speaks in Palm Beach, Fla., on Nov. 15, 2022. Joe Raedle/Getty Images

“In developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining ‘waters of the United States,’” the EPA said in its revised rules.

“This final rule advances the objective of the Clean Water Act and ensures critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.”

Increases Protections of Wetlands, Lakes, Ponds

Specifically, under the revised rules, the Biden administration is increasing protections of wetlands, lakes, ponds, and some streams that have a significant connection to navigable waters or wetlands that are “relatively permanent.”

The rule doesn’t set a certain distance for when adjacent wetlands are protected, as officials said that various factors can affect whether the wetland and the waterway can impact the water quality of each other. The impact, according to the EPA, depends on “regional variations in climate, landscape, and geomorphology.”

It also includes changes clarifying certain qualifications for waters that are excluded from regulation, such as wetlands that were converted to cropland before 1985, as well as waste treatment centers.

Bodies of water that are protected by the federal government qualify for programs aimed at maintaining water quality, discharging pollution, and protecting communities from flooding, among other things.

Environmental groups have long argued that loosening federal water protections would significantly impact sources of safe drinking water across the country.

Exposed rocks and aquatic plants are seen alongside the North Platte River at Treasure Island, Wyo., on Aug. 24, 2021. Mead Gruver/AP Photo

‘Government Shouldn’t Have Jurisdiction to Regulate Puddles’

However, farming groups, oil and gas producers, and real estate developers fear such regulations are overbearing and could hinder businesses.

Radhika Fox, the EPA’s assistant administrator for water, said the rule put forward is “clear, it’s durable, and it balances that protection of our water resources with the needs of all water users, whether it’s farmers, ranchers, industry, watershed organizations.”

However, Jerry Konter, chairman of the National Association of Home Builders, said the new rule makes it unclear if the federal government will regulate water in places such as roadside ditches and isolated ponds.

Rep. Doug LaMalfa (R-Calif.), in a statement on Dec. 30, expressed grave concerns over the new rule, which he said could be used to fine farmers thousands of dollars for simply rotating from one crop to another on their own land without first getting permission from the government, which could take years.

“Rural America doesn’t need yet another rule giving the federal government more power over farming and private property,” LaMalfa said. “The federal government shouldn’t have jurisdiction to regulate puddles, ditches, seasonal creeks, or culverts. All this rule does is make it more difficult to grow food or build anything. That seems to be the whole point—to make everyday Americans ask permission from their government for basic tasks like cleaning a ditch, repairing a road, or building something on your own property.”

LaMalfa vowed to lead the effort in preventing the rule from going ahead.

The Associated Press contributed to this report.