The Navigable Waters Rule

The saying goes something like this, “whiskey’s for drinking and water’s for fighting.” It is typically associated with ownership rights in the west. Still, for many years it has resonated with those of us who deal with the changing legal landscape and battlegrounds surrounding the Clean Water Act.

I’ve been working on or following the Clean Water Act jurisdictional issues for most of my conservation career. In 2003, I was the conservation director for the Izaak Walton League of America. We released a study titled “Jurisdiction Under the Clean Water Act: Implications of the SWANCC Decision” (copy available upon request.) Since then, there have been many twists and turns, making this one of the most contentious and complicated issues I’ve ever dealt with.

Where are we today?

In April 2020, the Environmental Protection Agency issued the “Navigable Waters Protection Rule: Definition of Waters of the United States,” aka the “Navigable Waters Rule.” undoing the Obama administration’s work. As Trout Unlimited noted, “This rule replaces a 2015 Rule, which clarified the extent of Clean Water Act protections for small streams and wetlands. This new 2020 rule not only reverses the clarifications made in 2015 but further reverses protections that have been in place dating back to the 1970s.”

My friend Sam Lungren, MeatEater’s fishing editor, wrote a terrific article, Patagonia Will Sue Trump Admin. Over Clean Water Act, which not only explains the state of play today but gives a solid review of the history of how we came to the Navigable Waters Rule. As Lungren notes, Patagonia, a company I greatly admire, stepped into the arena and joined with Earthjustice in their lawsuit on behalf of the Pascua Yaqui Tribe, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Fond du Lac Band of Lake Superior Chippewa.

The Lawsuit

The lawsuit challenges and seeks to vacate two final rules promulgated by the EPA and the Army Corps of Engineers. The first, “Definition of Waters of the U.S.: Recodification of Pre-Existing Rules,” repealed the 2015 “Clean Water Rule” which defined the term “waters of the United States” in the Clean Water Act. The second, “The Navigable Waters Protection Rule: Definition of Waters of the United States,” replaced the Clean Water Rule and its predecessor rules with a definition of “waters of the United States” that, according to the filing, “substantially narrows the waters protected by the Act.”

The filing states; “The Navigable Waters Rule exceeds the Agencies’ statutory authority and is contrary to the Clean Water Act’s text, structure, objectives, and legislative history requiring broad protection of all the Nation’s waters, because its provisions exclude waters from the protections required and afforded by the Act.

“The Tribes also challenge the Repeal Rule and the Navigable Waters Rule as arbitrary and capricious because both rules are contrary to the evidence before the Agencies, including vast volumes of science and technical evidence in the administrative record and the uncontroverted findings made by the EPA and its own Science Advisory Board. The Agencies also failed to explain their decision to reverse prior regulations and failed to consider important aspects of the problem, including the effects on water quality and aquatic ecosystems of stripping protections for large numbers of waters, the ecological importance of protecting the excluded waters, and the effects of the reversal on the objectives of the Clean Water Act.

“These decisions are arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act.”

Threats to our water

Since my early days, I have relied on my friends at Trout Unlimited for their analysis, leadership and advocacy. It is no different in this case.

“The E.P.A.’s new policy comes with a price tag,” Chris Wood, president and CEO of Trout Unlimited, wrote in a recent op-ed in the New York Times with National Wildlife Federation CEO Collin O’Mara and former U.S. Fish & Wildlife Service director Dale Hall.

“When the E.P.A. stops protecting these streams and wetlands, states will have to foot the bill for regulatory oversight; many states may decide not to step in at all. When developers fill in wetlands, local communities will be on the hook for cleaning up more frequent flood damage. When headwaters are polluted, cities downstream will pay to treat their drinking water.”

Check out TU’s Clean Water Rule Update: April 2020 for more details. Read, Changes to the Clean Water Rule have big impacts on the ground for a look at why the rule is bad news for those of us who love our small stream fishing.

Originally published at https://middlerivergroup.com on October 12, 2020.

Freelance journalist, wildlife advocate, fly-fishing guide.