January 25, 2021
This is the fourth installment of a special multi-part series offering what we might see under the incoming President Joe Biden administration.
One of the 17 executive orders signed by President Joe Biden on his first day of office will require a review of certain environmental and health regulations, including the “Waters of the U.S.” rule, or WOTUS, and a pesticide application exclusion zone rule.
In 2015, the Obama administration proposed WOTUS and it quickly came under fire from agricultural groups and others. The Trump administration’s several year process of withdrawing the Obama WOTUS rule and re-introducing its version – the Navigable Waters Protection Rule - was welcomed by agricultural groups. But now the question remains whether it will stick.
American Farm Bureau Federation President Zippy Duvall says he was proud of the final product completed in 2020. “The Navigable Waters Protection Rule provided much needed clarity and allows farmers to understand water regulations without having to hire teams of consultants and lawyers,” Duvall says.
Over the past four decades, all three branches of government have struggled with how to interpret the meaning of WOTUS, which has resulted in extensive litigation and confusion on the county level. And an April 2020 Supreme Court ruling also looks to cause additional uncertainties over which navigable waters are within federal jurisdiction and require additional permitting.
Don Parrish, AFBF senior director of regulatory relations, says he sees no legislative path on defining what constitutes a navigable water, so he expects Biden to take action administratively. Parrish expects this administration would want to expand the definition of what constitutes a navigable water, but maybe not as far as the 2015 rule tried.
“The big wild card is going to be what courts do on the Clean Water Act,” Parrish says. Currently, 14 cases are challenging Trump’s Navigable Waters Protection Rule. He expects the Biden administration to pause defending those cases.
The focus then turns on whether a district court takes down the rule, and if yes, will it be a nationwide ruling? Will the repeal action Trump take of the 2015 regulation create a backstop and prevent courts from reverting to the very expansive 2015 definition of a navigable water?
“We could see a patchwork for regulations very similar to just before the Trump administration finalized their latest rule,” Parrish adds.
Meanwhile, the Biden administration will have to decide how it wants to remedy finding that sweet spot. Parrish says they’ve signaled two key areas of the rule needing changed: ephemeral waters and increasing the amount of waters covered under adjacent wetlands.
“It’s going to take time for this administration to put this together,” Parrish says.
Ethan Lane, vice president of government affairs at the National Cattlemen’s Beef Association, says at the end of the day the rule will find its way back to the Supreme Court as each administration attempts to move that line back and forth between a more broad interpretation and more narrow of what constitutes a navigable water. When it does end up back at the highest court, he sees “more favorable judges looking at that rule.”
Additional environmental regulations
“As the new administration considers environmental regulations, we stand ready to work with them. We will be guided by our grassroot policies and continue to be a strong voice – from the grassroots up – for rules that are fair to farmers,” Duvall says.
Lane says Biden’s key advisers and cabinet picks show his desire to choose those people who understand the system and regulatory process and don’t require a learning curve. “This is an interesting change from others who understand how the economy works, but weren’t as versed in the regulatory structure,” he says.
Lane says NCBA plans to defend critical regulatory victories seen under the Trump administration including updates to the National Environmental Policy Act and the Endangered Species Act including the delisting of the gray wolf. He expects the Biden administration to stop defending in federal court actions challenged by environmental groups and championed by the Trump administration.
Lane says he’s been encouraged that initial reports from the Biden transition team did not support a broad brush of eliminating all the regulatory wins from the Trump administration through early executive order actions by the Biden team. He does expect some new rulemakings to allow for continued comments.
Related: Biden takes quick action on climate
However, one of his first executive orders calls for a refocus on environmental justice outcomes. Biden points to the Trump rewrite of NEPA rules. The Biden transition team was also very thorough in detailing rules that could need to be revisited.
When President Donald Trump came into office, he made a bold promise through an executive order to require the elimination of two regulations for any new one proposed. During his tenure he actually eliminated four regulations for every one new one proposed.
First Installment: Biden administration: Labor issues offer pros and cons
Second Installment: Biden administration: New trade approach ahead
Third installment: Biden administration: What will happen to your taxes?
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