WASHINGTON (AP) – A federal judge has thrown out a Trump-era rule that ends federal protection for hundreds of thousands of small streams, wetlands and other waterways, leaving them vulnerable to pollution from nearby developments.
The Biden administration had already announced that it would repeal the Trump-era rule and enact new regulations that determine which waterways are state-protected under the Clean Water Act. But the Trump rule remained in place in the meantime, and environmental groups, Indian tribes and others said it could lead to loss of wetlands, damage wildlife habitats, and allow businesses and farmers to pollute waterways.
Arizona District Court Judge Rosemary Marquez, one of Obama-nominated, sided with these groups on Monday, finding that the Trump administration’s rule last year inappropriately restricted the scope of clean water protection. Marquez said the environmental protection agency has ignored its own findings that small waterways can affect the well-being of the larger waterways they flow into.
The EPA, now headed by Biden Representative Michael Regan, said it was reviewing the decision and declined to comment. In June, Regan said the agency plans to enact a new rule that will protect water quality and not place undue stress on smallholders.
The Water Rule – sometimes called the “Waters of the United States” or WOTUS – has long been a point of contention. In 2015, the Obama administration expanded federal protection to nearly 60% of the country’s waterways. Since the Obama Rule has also faced several legal challenges, Monday’s decision will reintroduce a 1986 standard – larger in scope than the Trump Rule but tighter than Obama’s rule – until new regulations are enacted.
According to an earlier review by the Biden administration, the Trump rule allowed more than 300 projects to be carried out without the federal approvals required by the Obama-era rule. The review also found that the Trump Rule severely restricted the protection of clean water in states like New Mexico and Arizona.
These changes were challenged in court by six Native American tribes who said the Trump Rule was against the environmental focus of the law. Until it was repealed, the rule had “caused irreparable damage to our nation’s waters,” said Janette Brimmer, attorney for Earthjustice, an environmental group that represented the tribes.
Gunnar Peters, chairman of the Menominee Indian Tribe of Wisconsin, one of the sued tribes, said federal water regulation “protects our history, our culture and the way of life of our people.”
Monday’s ruling goes into effect nationwide and could have immediate effects. In Georgia, a planned titanium mine a few miles from the edge of the Okefenokee National Wildlife Refuge may still require government approval. Last year, the Army Corps of Engineering determined that it was no longer responsible for the project. On Tuesday, an Army Corps spokesman said it was too early to see how the ruling will affect his involvement in the project.
Developers and other companies that could benefit from regulatory and financial relief under the Trump rule are also affected. Proponents of less restrictive federal regulation say waterway protection should be left to states.
Chuck Fowke, chairman of the National Association of Home Builders, said the group was disappointed with Monday’s decision. He said the decision will create confusion about where home builders might develop and will result in “longer delays and higher housing costs”.
Phillis reported from St. Louis. Associate press journalist Kate Brumback in Atlanta contributed to this.
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