With the new year comes a new president. Will the new year and administration also bring new water policy? Bet on it. Just as President Trump undid President Obama’s signature water policy decision—the Clean Water Rule, which clarified and arguably 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 President Trump’s policies, expect President Biden, and his nominee to helm the U.S. Environmental Protection Agency (EPA), former head of North Carolina Department of Environmental Quality Michael Regan, 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 triggered federal water permitting jurisdiction. President Trump undid that rule and issued a new, narrower one. Under President Biden, expect the regulatory seesaw to swing back toward 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 also change. 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 child-care 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 three percent of known or suspected lead service lines in certain communities annually, which is facially less than the old seven percent annual replacement requirement. (The EPA did, however, reduce exceptions baked into the old rule—EPA estimated those exemptions functionally watered down the seven percent requirement to closer to a one percent 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.
Republished with permission. The full article for, "Sea Change?: Water Policy Under the Biden Administration" was published in the March 2021 edition of the Florida Water Resources Journal Vol. 72, No. 3 and can be accessed here.