Trump’s Dirty Water Rule struck down

A typical watershed threatened by Trump’s Dirty Water Rule. (Photo courtesy of Wildearth Guardians.)

TUCSON, AZ—Mni Wiconi, “Water is Life,” was the rallying cry of the Oceti Sakowin tribes that stood against the DAPL pipeline at Standing Rock, but threats to clean water have been an issue across the nation, impacting dozens of tribes for many years. Last week, the U.S. District Court for the District of Arizona ruled that President Trump’s Navigable Waters Protection Rule (NWPR) alterations to President Obama’s 2015 Waters of the United States (WOTUS) rule would lead to “the possibility of serious environmental harm,” and struck them down.

Arizona District Court Judge Rosemary Márquez said Trump’s alterations contained “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’”

The WOTUS rule was altered in 2020 by Trump’s NWPR, which far from protecting, removed protections for creeks and streams, particularly those that are dry at certain times of the year. Opponents of NWPR called it the Dirty Water Rule.

The Trump Administration’s rationale for NWPR was that WOTUS was a “massive power grab” by the federal government and threatened the ability of landowners to modify their land for their economic benefit. Wyoming had filed suit against the Environmental Protection Agency’s interpretation and application of WOTUS. David Ross represented Wyoming in that lawsuit and Trump selected Ross to be his administration’s EPA water chief. Ross was exactly the person that those hostile to WOTUS wanted in place at EPA when Trump’s NWPR officially replaced WOTUS on January 23, 2020.

Earthjustice, representing six federally recognized tribes, filed suit against the EPA and the Army Corps of Engineers.  The Arizona District Court ruled in their favor, but it is unclear at present if that ruling applies to all tribes across the nation.

Janette Brimmer, Earthjustice attorney, said: “The court recognized that the serious legal and scientific errors of the Dirty Water Rule were causing irreparable damage to our nation’s waters and would continue to do so unless that rule was vacated. This sensible ruling allows the Clean Water Act to continue to protect all of our waters while the Biden administration develops a replacement rule.”

The elected leaders of the six lawsuit tribes weighed in on the court ruling:

Guy Capoeman, president of the Quinault Indian Nation: “Small headwater streams are fundamental to the protection and restoration of salmon and our way of life.”

Gunnar Peters, chair of the Menominee Indian Tribe of Wisconsin: “It is inconceivable that critical waters or wetlands would be considered insignificant or unworthy of pollution protections. Proper  federal regulation  protects wetlands and headwater streams from irreparable harm and destruction. It also protects our history, our culture, and our people’s way of life.”

Tohono O’odham Nation Chairman Ned Norris, Jr: “The sacred waters that were put at risk by the Trump administration are essential to our cultural and religious lives as indigenous people. This includes springs in Southern Arizona sacred to the O’odham that are threatened by a foreign mining company which used Trump’s dirty water rule to try to advance its destructive project. This decision by the court rightfully vacates a grievous error.”

Peter Yucupicuo, chair of the Pascua Yaqui Tribe: “Today’s ruling will restore protections for entire categories of waterways that play a vital role in sustaining our communities, our livelihood and our environment.”

The specific parts of Obama’s 2015 WOTUS protection rule that bothered the Trump Administration were:

  • A tributary must only show evidence of waterflow, such as a bed, bank, high water mark, even if presently dry, to warrant protection.
  • Longstanding agency practice protecting certain watersheds became official policy.
  • Clarity of protected and non-protected water through analysis was established.
  • Watersheds shown to have an impact on downstream water health were specifically protected.

All of these protections were interpreted by NWPR and EPA Water Chief Ross to be a hinderance to landowners, restricting their ability to make profitable use of their land, although this appears to be cover for the real danger to the environment, which comes from largescale operations like mines and energy exploration. The Arizona court ruling rolls back water protection to what was in place back in 1986. The Biden Administration can now do what the Trump Administration did, move to establish protection rules that fit their take on water use. It is remains to be seen if that would entail restoration of Obama’s WOTUS, or some form of alteration to head off any future attempts by a Republican administration to compromise water protection rules in the name of landowner liberties.

Biden’s EPA Administrator Michael S. Regan said, “We are committed to crafting an enduring definition of WOTUS by listening to all sides so that we can build on an inclusive foundation. Uncertainty over the definition of WOTUS has harmed our waters and the stakeholders and communities that rely on them. I look forward to engaging all parties as we move forward to provide the certainty that’s needed to protect our precious natural water resources.”

(Contact James Giago Davies at skindiesel@msn.com)

 

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