Just three days after President Joe Biden signed the $1-trillion Infrastructure Investment and Jobs Act, freeing up billions for transportation, energy, broadband and other construction, two federal agencies announced they will repeal a Trump-era water rule and replace it with one put in place in 1986—a move that one group claims will make it harder for those billions to be put to use.
“We’re going back to a regime where we will have to ask a whole bunch of questions [about water jurisdiction] and we’re not sure what jurisdiction it's going to be,” said Nick Goldstein, vice president of legal and regulatory affairs for the American Road & Transportation Builders Association. “It’s working against the goals of the IIJA.”
The US Army Corps of Engineers and US Environmental Protection Agency on Nov. 18 announced a proposal to formally withdraw the Trump-era Navigable Waters Protection Rule and put in place the regulation that had been in effect before the Obama administration implemented its controversial Waters of the United States (WOTUS) rule in 2015.
The Corps and EPA have been using that 1986 rule since September, after an Arizona court tossed out the Trump water regulation. Additionally, on day one of his administration, Biden signed an executive order to roll back the Trump rule.
The Corps and EPA announced in June they were beginning the process of writing yet another Waters of the U.S. rule, which would make it the third such rule in three administrations. That process will go forward as the agencies formally roll back the Trump rule and implement the 1986 version.
“It’s not Sisyphus rolling the boulder up the hill again, it’s Sisyphus taking a swim,” said Goldstein on the frustration of revisiting the rule another time. ARTBA has supported the Navigable Waters Protection Rule because of its clarity on roadside ditches and other water bodies.
Goldstein isn’t alone in his frustration.
“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” EPA Administrator Michael S. Regan said in a statement.
Under the earlier 1986 WOTUS rule, tributaries and impoundments of interstate waters and certain wetlands were considered to be under federal jurisdiction. But the agencies often had to determine that jurisdiction on a case-by-case basis.
With the Obama rule, the administration sought to clarify which bodies were under federal jurisdiction, and in doing so included many wetlands and temporary streams that previously were not considered subject to U.S. regulation. That rule was challenged by half of the states and never implemented nationwide.
The Trump administration repealed the Obama regulation and in 2020 put in place its own version, which excluded wetlands not adjacent to federal waters, and ephemeral, or temporary, bodies of water, such as roadside ditches. ARTBA and other business and farming groups supported the change and its clarity.
However, EPA’s Science Advisory Board and environmentalists said the Trump rule significantly weakened protections for water bodies. Under the Trump regulation, almost every one of the 1,500 streams in Arizona and New Mexico were found to be non-jurisdictional, according to EPA. In August, the Arizona court agreed, throwing out the Trump rule, saying that it could cause substantial harm.
While the Biden administration stopped implementing the Trump rule based on the court decision, without its formal repeal, the court ruling could have been challenged. If successful, it could have led to the Trump navigable waters rule being implemented nationwide, says Larry Liebesman, a policy consultant at Dawson & Associates and former attorney in the U.S. Justice Dept. environmental division. “On the balance, this makes sense,” he said of the Biden administration's decision to formalize the repeal.
The agencies will take comments on the proposal for 60 days after it is published in the Federal Register. Three virtual hearings will be held on the proposal in January.