January 9, 2023

Biden Administration Issues New Energy, Water Regulations

On December 30, 2022, the U.S. Environmental Protection Agency (EPA) issued a final regulation, called Waters of the United States, that will govern the country’s wetlands and waterways. Specifically, the regulation defines which waters get federal protections that would require businesses to obtain a permit for activities like construction that could damage water quality — and which do not.

The final rule restores the standard that was in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, and upstream water resources that significantly affect those waters.

The Waters of the United States, or WOTUS, rule has been subject to significant back and forth over the last decade. The Obama administration set stricter guidelines and the Trump administration loosened rules when it came into office. The standard issued before the new year returns the EPA to the regime issued by the Obama administration.

The debate over WOTUS has been contentious since the rule could be extremely burdensome for industry. The timing of the EPA’s most recent announcement was, itself, controversial. As the National Association of Manufacturers (NAM) pointed out, it came ahead of a consequential Supreme Court ruling that will directly impact the Clean Water Act’s jurisdiction and the WOTUS rule. The NAM said the EPA’s failure to wait for the Supreme Court to rule in that case “only serves to create more permitting uncertainty for manufacturers.”

Read more here.

A week after the WOTUS announcement, the EPA proposed a rule to tighten limits on fine particle pollution, or soot, which largely comes from burning fossil fuels. The proposed rule would limit how much of the pollutant can be in the air on average to a concentration of somewhere between nine and 10 micrograms per cubic meter annually — down from 12 micrograms under a previous standard that was put into place by the Trump administration.

The EPA is also considering looser standards of up to 11 micrograms per cubic meter and stricter standards of as low as eight micrograms per cubic meter.

EPA will accept public comment for 60 days and will conduct a virtual public hearing over several days.

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