Sea Change? Water Policy Under the Biden Administration

Bradley Arant Boult Cummings LLP

Bradley Arant Boult Cummings LLP

With the new year comes a new president. Will the new year and administration bring new water policy, too? Bet on it. Just as President Trump undid President Obama’s signature water policy decision — the Clean Water Rule, which clarified and expanded federal water permitting jurisdiction — President Biden is likely to rewind many of President Trump’s water policy (and, more generally, environmental policy) decisions over the next four or more years. Beyond reversing Trump’s policies, expect President Biden and his nominee to helm the U.S. Environmental Protection Agency (EPA), Michael Regan, who is the former head of the North Carolina Department of Environmental Quality, to put their own stamp on federal and state water policy.

What might that look like? Begin with the obvious: President Biden is likely to scrap, and perhaps even revamp, how EPA and the U.S. Army Corps of Engineers define “waters of the United States” (WOTUS). President Obama issued a new federal rule stretching the scope of that rule, and with it the likelihood that a discharge or development activity required a federal water permit. President Trump undid that rule and issued a new, narrower one. Under President Biden, expect the regulatory seesaw to swing back towards the Obama-era approach. Whether President Biden merely revokes the current WOTUS rule or also promulgates its own broader regulation, federal regulators are likely to require more federal water permits, more often.

The recent EPA Lead and Copper Rule revamp could change, too. Just before Christmas last year, EPA modernized federal regulations governing lead and copper pipes, which hadn’t been updated since 1991. Under the new rule, utilities are required to regularly test lead levels at childcare facilities and elementary schools, publicize information about lead water service lines, and tighten lead testing practices. Yet, some criticized the rule’s lead pipe-replacement obligations, which require utilities to replace a minimum of 3% of known or suspected lead service lines in certain communities annually, which is facially less than the old 7% annual replacement requirement. (EPA did, however, reduce exceptions baked into the old rule — EPA estimated those exemptions functionally watered down the 7% requirement to closer to a 1% annual replacement rate.) President Biden could tweak or redo the rule. If he does, expect a Regan-led EPA to toughen testing and replacement requirements.

Other water policy changes could involve modifications to the Corps’ recently released nationwide permits (which preauthorize and precondition certain common dredge-and-fill activities estimated to have minimal environmental impacts) and the Trump administration’s rewritten coal-fired power plant wastewater regulations.

More generally, environmental justice might animate more of EPA’s enforcement and policymaking agenda. An Administrator Regan could also crank up enforcement. In North Carolina, Regan prioritized environmental enforcement, landing major settlements from energy and chemical companies in the state.

The EPA might even reverse the Trump administration’s decision to delegate dredge-and-fill authority to the Florida Department of Environmental Protection. That decision, which made Florida just the third state to assume that authority, is already facing some headwinds: Environmental groups challenged the rule in Washington, D.C., federal court in January, while Florida Agriculture Commissioner Nikki Fried publicly called on President Biden to rescind the decision.

All of this is subject, as always, to litigation. Expect challenges to every Biden-led effort to backtrack from a Trump-era environmental decision. So, while we know what President Biden might try to do, whether his administration can get it done — and if so, how quickly and to what degree — is the bigger question. As we speak, the Biden administration has started seeking 60-day abeyances in cases challenging Trump-era environmental regulations decisions. And President Biden temporarily “froze” regulations that the Trump administration left unfinalized, including the Lead and Copper Rule, changes to migratory bird protections, and rules governing evaluation of non-power sector greenhouse gas emissions.

In short, expect big changes — and lots of litigation — on the horizon. The regulated community should stand ready to comment on, challenge, or defend many of these regulatory decisions as they roll out over the coming months and years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Bradley Arant Boult Cummings LLP

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