Tuesday, January 12, 2021 – 2:00-4:00 pm ET
Looking Back, Looking Forward: A Review of Trump Administration Rulemakings and Charting a Path Forward
▪ Julia Anastasio, Association of Clean Water Administrators
▪ Royal Gardner, Professor of Law and Director of the Institute for Biodiversity Law and Policy Stetson University College of Law
▪ James M. McElfish, Jr., Senior Attorney, Environmental Law Institute
▪ Donna Downing, Senior Legal Policy Advisor, Association of State Wetland Managers
▪ Marla Stelk, Executive Director, Association of State Wetland Managers
The Trump Administration has been a time of substantial change to aquatic resource protection programs, as well as to rulemaking processes used to define program requirements. For example, on January 30, 2017, President Trump signed Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, which spearheaded his Unified Agenda of Regulatory and Deregulatory Actions and directed all agencies to repeal at least two existing regulations for each new regulation issued in FY 2017 and thereafter. This initial E.O. laid the context for the subsequent E.O. 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, which was published in the Federal Register just four days later, on February 28. The extent and speed of changes to aquatic resource protection programs has posed substantial challenges to states and tribes who have substantial responsibility under the federal Clean Water Act (CWA).
Clean Water Act programs address “waters of the United States,” and as a result the regulatory definition of that threshold term determines the scope of multiple aquatic resource and water quality protections. The Trump Administration’s 2000 Navigable Waters Protection Rule (NWPR)replaced the Obama Administration’s 2015 Clean Water Rule with a narrower definition of WOTUS. Because CWA programs address waters of the US, the new narrower definition created a domino effect and reduced the extent of protections from those programs. For example, CWA Section 401 certifications are required only for permits or licenses that may result in discharges into WOTUS, Nationwide Permits under section 404 apply only to discharges of dredged or fill material into WOTUS, as does section 404’s requirement for compensatory mitigation for impacts to WOTUS. As the extent of waters considered to be WOTUS shrinks, so do the protections of programs such as these. In addition, the Trump Administration has undertaken rulemaking to revise these and other CWA programs, further affecting the programs’ abilities to protect aquatic resource and water quality.
In this webinar, the implications of these changes for state and tribal aquatic resource programs will be examined and discussions will include past, recent and ongoing rulemakings and court cases, enforcement issues, points of process for moving forward, and potential actions by the new Biden Administration.