Water Policy in the Biden Administration: What’s on Tap?
We invited water policy expert Kim Delfino to speak with us at a webinar about changes she anticipates to water policy in the Biden administration. Delfino reviewed the Biden administration’s top four priorities: Covid-19, economic recovery, climate change, and racial equity. “These priorities,” she said, “will have a profound impact on water policy.” In her presentation, Delfino laid out the changes that are already underway and what we can expect to see going forward.
Delfino teaches in McGeorge’s MSL and LLM Water & Environmental Law programs. She is also the founder and president of Earth Advocacy, a firm that provides policy and advocacy guidance to nonprofits and foundations. Prior to her work with Earth Advocacy, Delfino was a California program director for Defenders of Wildlife and a member of the California Water Commission. Her policy expertise lies in state and federal endangered species, land use planning, water, and other natural resource laws.
Importance of the Federal Government to Water Policy
Professor Delfino began the conversation by emphasizing the enormous influence the federal government plays in setting water policy. In California, for example, the federal government is a critical player through its role in the Central Valley Project, which is a system of dams, reservoirs, canals, hydroelectric power plants, and other facilities that spans 400 miles. Dams in the system—and thus water supply—are operated by the US Bureau of Reclamation. The federal government administers the Clean Water Act, the Safe Drinking Water Act, and numerous other federal laws that have implications for water policy.
Federal agencies play a significant role in state water management, explained Delfino. Key agencies include the Department of Interior, which houses both the US Fish and Wildlife Service and the Bureau of Reclamation. The EPA, the National Marine Fisheries Service, the Department of Agriculture, and the Department of Energy are others. These and other agencies all control water policy, and thus the President and the federal administration play a very large role in water issues in California and in other states.
Water Policy under the Trump Administration
Professor Delfino reviewed actions the Trump administration took to dismantle major climate policies and weaken or repeal (“rollback”) rules that govern clean air, water, wildlife, and toxic chemicals. She shared a chart from the New York Times that identified over 100 rollbacks intended to weaken environmental protection that were complete or in progress at the end of the Trump administration. “You can see,” she said, “that a lot happened in four years under the Trump administration with respect to water policy.”
| Rule reversals | Complete | In progress | Total |
|---|---|---|---|
| Air Pollution & Emissions | 28 | 2 | 30 |
| Drilling & Extraction | 12 | 7 | 19 |
| Infrastructure & Planning | 14 | 0 | 14 |
| Animals | 15 | 1 | 16 |
| Water Pollution | 8 | 1 | 9 |
| Toxic Substance & Safefy | 9 | 1 | 10 |
| Other | 12 | 2 | 14 |
| Total | 98 | 14 | 112 |
As the chart indicates, the Trump administration took nine actions to roll back protections that affect water pollution. Beyond the actions captured in the chart, said Delfino, actions taken elsewhere also affected water supply and quality.
Under Trump, for example, changes were made to Section 401 of the Clean Water Act, making it harder for states to object to federal projects that don’t meet state water quality standards. The Trump administration weakened coal ash disposal rules, and rules about what coal companies and power plants can dump in water. Rules protecting groundwater from certain uranium mines were relaxed. And regulatory changes to federal land management in support of the expansion of oil and gas leasing significantly decreased protections for fish and wildlife that rely on water.
“With the Biden administration we’re seeing a complete change in priorities,” said Delfino. And even though some of the Biden priorities may at first appear unrelated to water policy, she explained, they come together in a way that significantly affects environmental and water policy.
Reversing Trump-Era Rollbacks
One way that the Biden administration’s priorities affect water policy is through reversals of regulatory changes adopted by the Trump administration. For example, the Trump administration significantly narrowed the class of waters protected by the Clean Water Act. Delfino expects the Biden administration to take actions that will result in expanded federal protections for an expanded class of waterways nationwide.
Another rollback of Trump-era policies, Delfino explained, relates to the Safe Drinking Water Act and a rule that establishes a maximum contaminant level of zero for lead in drinking water. The Trump administration updated the rule to require cities to notify consumers who may be exposed to lead in their drinking water, but the rule also gave those people a very long time, potentially up to 30 years, to actually replace the infrastructure that caused the contamination. The Biden administration has a strong interest in tightening these rules so that infrastructure is replaced more quickly, thus increasing protections for drinking water and affected communities, including disadvantaged and underrepresented communities.
Another change to Trump-era policies is evident in an executive order from the Biden administration that directs the Department of the Interior to pause new oil and gas leasing on public lands and offshore waters, and to perform a comprehensive review of the federal oil and gas program. The targeted pause does not impact existing operations or permits for existing leases, Professor Delfino explained, but it will nonetheless have an impact. “This action is significant,” she said, “because fossil fuel extraction on public lands accounts for nearly 25 percent of all US greenhouse gas emissions.” Such extraction also affects access to clean air and water, impacts wildlife habitat, and can degrade cultural and sacred sites.
Finally, Professor Delfino stated that she expects to see a reversal of Trump-era modifications to Migratory Bird Treaty Act rulemaking that narrowed the application of the Act. Because migratory birds use water sources in their migration, the Act has surprising implications for water policy. “If you’re not able to protect birds,” explained Professor Delfino, “that often translates to impacts on bird habitat, which means impacts to water sources.”
Climate Change and Its Effects on Water Policy
Climate change is another area where Professor Delfino anticipates significant changes to water policy. Quoting water and climate research scientist Brad Udall, Professor Delfino said that “climate change is water change.” In other words, she said, the most obvious and dire impacts of climate change are evidenced in the changes we see to our waters and rivers. “This is very evident in the floods and droughts that California is experiencing,” she said. “The droughts are becoming deeper and longer, and California may be on the precipice of another long-term drought. This uncertainty destabilizes the economy and people’s lives, showing that climate change has a profound impact.”
Professor Delfino discussed President Biden’s “Tackling the Climate Crisis at Home and Abroad” executive order as one example. This order will have a significant impact on water policy. The order directs the entities that review regulatory and budget actions to require that federal permitting decisions consider the effects of greenhouse gas emissions on climate change. “This means,” she said, “that agencies like the Environmental Protection Agency will need to undo Trump-era rules, and it also means that the [U.S.] Army Corps will have to rethink the Trump administration’s fast-track permits for a number of water-destroying activities.”
Furthermore, the administration announced a $2 trillion climate plan that will provide significant funding to shore up our natural infrastructure. This money, said Professor Delfino, will go into drinking water improvements, flood protection, and cleanup of abandoned oil and gas wells. Delfino explained that the administration’s plan proposes that the predominantly low-income communities and communities of color that have disproportionately been impacted by pollution should receive 40% of the benefits of this spending.
These actions are some of many that reinforce climate change as a cornerstone of the Biden administration. The associated regulations and investment decisions will have a very big impact on water policy.
Greater Access to Clean and Affordable Drinking Water
California has taken a lead in pushing for access to clean and affordable drinking water, and Professor Delfino said she expects the Biden administration to take measures that support and further the existing work of environmental justice organizations.
“We see an intersection between Covid and equity issues driving a greater effort to provide clean and affordable drinking waters to communities,” said Delfino. “With Covid, you have to wash your hands. You need access to clean water in order to be able to do that. And you need access to clean drinking water.”
Biden’s relief measures include large amounts of money that can be directed to address the problems of access to clean and affordable drinking water in the United States, including the emphasis on directing the funds to communities disproportionately impacted by pollution.
A Dynamic Time for Water and Environmental Law
This is a dynamic time to be involved in water and environmental law, said Professor Delfino. The interplay between water policy and Biden’s priorities of economic recovery, racial equity, climate change, and Covid are complex and fascinating. “My class touches on lots of these issues, and it’s exciting to talk about them and to see a change in administration and a significant shift in how the statutes and regulations are being interpreted and revised and applied.”
“We’ve had executive orders that revoke rules and past policy decisions,” said Delfino. “We’ve had executive orders that announce new proactive policies and proposed investments. We’ve seen a freeze on all pending regulations until a full review is done. There’s review of ongoing litigation being conducted by the Department of Justice, and we have new personnel leading the federal agencies that signal a 180-degree change in the direction of the administration and how it will affect water.”
The full webinar provides additional detail about water policy implications, including an in-depth discussion of how California, in particular, is likely to be affected by the priorities of the Biden administration.
About McGeorge’s Online MSL & LLM Programs
McGeorge offers two fully online part-time programs in Water & Environmental Law:
- The Master of Science in Law (MSL) is designed for land use planners, engineers, environmental consultants, public information officers, lobbyists, public agency and legislative staff, and others who seek expertise in this continually evolving field but do not require a law degree.
- The Master of Laws (LLM) is for attorneys, recent law school graduates, or foreign-educated legal professionals to develop depth of knowledge in a specialized area of environmental, water resources, regulatory compliance, and public agency law.
Students build marketable expertise with the guidance of expert faculty chosen for outstanding teaching as well as depth of knowledge in water and environmental law. Courses emphasize real-world knowledge and development of practical skills. The programs are convenient and are specifically designed for students and professionals who need flexibility due to work, professional, or other obligations, and who want to further their education and advance their career.