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Court Restores Pre-2020 Clean Water Act Protections

Posted: 08/31/2021
By: Kevin Colburn

Yesterday, in a big win for rivers, a US District Court in Arizona tossed out a 2020 federal rule that had dramatically reduced the number of waterways covered under the Clean Water Act. The court decision wiped the 2020 rule off the books because the rule was based on significant errors and posed a serious risk of harm to the public and the environment. Effective immediately, the more protective 1988 rule governing the Clean Water Act is back in place. The administration is currently working on a new rule, and paddlers are encouraged to learn more and send in comments by September 3rd supporting broad protections for rivers, and all those who live and recreate downstream. 

 

The tossed-out 2020 Navigable Waters Protection Rule significantly reduced the types of streams and wetlands protected from over-pollution by the Clean Water Act - including eliminating rivers and streams that do not flow year round. The Court found that in under a year, 333 dredge and fill projects that would have required a permit (or would not have been allowed) under the old rules escaped permitting under the 2020 rule. Of the over 40,000 determinations made by the Army Corps of Engineers during this timeframe, 76% of streams were found to be outside of Clean Water Act jurisdiction, including nearly all of the streams assessed in New Mexico and Arizona. 

 

The suit was brought by six federally recognized tribes: Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O’Odham Nation, and Bad River Band of Lake Superior Chippewa. “Small headwater streams are fundamental to the protection and restoration of salmon and our way of life,” said Guy Capoeman, president of the Quinault Indian Nation, in a press release. “Today’s ruling will protect all waters on which the Quinault people rely.” We owe a debt of gratitude to these tribes for their leadership in river and public health protection. 

 

Paddlers have reason to celebrate, as do all communities who are touched by rivers. The Clean Water Act is the reason the rivers we paddle and swim in, and often get our drinking water from, are reasonably safe from excessive pollution. Allowing unregulated pollution into small headwater streams, hydrologically connected wetlands, and streams that flow seasonally posed a significant risk to our health and the river ecosystems we enjoy. With that risk now reduced, it is time for our Government to create a new, protective, science-based rule that will continue the incredible progress in cleaning up our Nation’s rivers that started with the passage of the Clean Water Act in 1972. 


As we celebrate this win for rivers, paddlers are encouraged to learn more and submit a comment no later than Friday, September 3, on the new rule that is in the early stages of development. Comments should encourage the EPA and Army Corps to draft a rule that ensures that the Clean Water Act covers all waterways that could deliver pollution downstream, including streams that may not have year-round flows.

Kevin Colburn

Asheville, NC

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