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Suit strives to restore broad protections to nation’s waterways

January 13, 2021
Jen Pelz, WildEarth Guardians, 303-884-2702, jpelz@wildearthguardians.org
In This Release
A coalition of environmental groups today filed an amended complaint challenging a Trump administration rule redefining “waters of the United States” (WOTUS) that would strip Clean Water Act protections from approximately half of the nation’s wetlands and potentially millions of miles of streams.

The final rule allows polluters to pave over wetlands and to dump pesticides, mining waste, and other pollutants directly into these now-unprotected waterways.

The amended suit, filed in the U.S. District Court for the Northern District of California, claims the narrower definition of waters protected under the Clean Water Act violates the act itself, as well as the Administrative Procedure Act, the Endangered Species Act, and the National Environmental Policy Act.

Waterkeeper Alliance, Humboldt Baykeeper, Upper Missouri Waterkeeper, Snake River Waterkeeper, Russian Riverkeeper, Monterey Coastkeeper (a program of the Otter Project), Sound Rivers, Rio Grande Waterkeeper (a program of WildEarth Guardians), Missouri Confluence Waterkeeper, Lake Worth Waterkeeper, Turtle Island Restoration Network, and Ecological Rights Foundation filed the amended complaint against the Environmental Protection Agency and Army Corps of Engineers. The lead counsel is Environmental Advocates.

President Trump’s Executive Order 13778 required EPA and the Army Corps of Engineers to review the rule defining which waters deserve Clean Water Act protections. The agencies decided to protect only those waters that have “a relatively permanent surface connection” to a territorial sea or commercially navigable body of water such as a shipping channel—ignoring decades of settled law and the basics of hydrology. The rule partially follows the minority legal view of the late Supreme Court Justice Antonin Scalia, which was never adopted by the Supreme Court, but goes even further to eliminate protections for many other waters across the country.

“This reverses more than 40 years of progress and settled law that protects our nation’s drinking water, fisheries, recreation, and other essential needs for clean water,” said Kelly Hunter Foster, Waterkeeper Alliance Senior Attorney. “Because the rule establishes arbitrary categories of protected waters, significant bodies of waters are left unprotected from dangerous pollution discharges and destruction through dredging and filling endangering people and downstream waterways. Their actions are not only reckless—they are illegal.”

“Under this definition of Waters of the U.S., more than 90 percent of the beloved rivers, creeks, marshes, arroyos, ciénegas, and streams in the Rio Grande basin that bring vitality to the desert will be stripped of basic protections against pollution, dredging, and filling,” said Jen Pelz, Rio Grande Waterkeeper with Wild Rivers Program Director at WildEarth Guardians. “Further, leaving these vital arteries of life exposed and vulnerable means cumulative pollution in big rivers—like the Rio Grande—that provide drinking water, nourish crops, and support landscapes and ecosystems. We will keep fighting to dismantle this rule and strengthen this essential environmental and public health safety net that is essential for all life.”

“Trump’s attack on clean water to benefit polluters must be overturned through litigation or by the incoming Biden-Harris administration. Turtle Island will do everything in its power to ensure we have clean water for future generations of people and wildlife,” said Todd Steiner, Executive Director of Turtle Island Restoration Network.

The final rule limits protections only to certain rivers, streams, lakes, and wetlands that are “physically and meaningfully connected” to larger commercially navigable water bodies. The radical change repeals long-standing protections for wetlands, streams, and rivers that have been in place since the Nixon administration and are responsible for major improvements in water quality nationwide.

“The Clean Water Act is the bedrock federal law aiming to protect water quality such that Americans can safely drink, swim, and fish,” said Buck Ryan, Snake River Waterkeeper. “By attempting to drastically narrow the Act’s coverage, the Trump administration aims to remove baseline standards for headwaters and streams that feed the larger waterways on which we all depend. Anyone who drinks water or believes it flows downhill should care—and hope we succeed in striking down this rule.”

“The rule removes protections for many wetlands that are vital to the safety of our Eastern Carolina communities, as threats from flooding and severe storms worsen with climate change,” said Matthew Starr, Upper Neuse Riverkeeper. “Our communities have suffered grave losses from three massive hurricanes and flooding events in less than 20 years. This rule will cause greater harm to our water supplies and the health and wellbeing of our communities along the Neuse and Tar-Pamlico Rivers.”

“We’re forced to endure a continuous attack on our right to bring polluters and developers to court,” said Reinaldo Diaz, Lake Worth Waterkeeper. “Florida has faced burden shifts, laws forcing automatic attorney’s fees, attacks on ‘home rules’ against pollution, and recently Gov. Ron DeSantis signing the so-called ‘Clean Waterways Act,’ which, among other things, preempts local government’s ability to take on the Rights of Nature movement. They know that science and law is on our side, so they take every effort to attack our standing and rights to fight. This change to WOTUS is the worst of them all; here in Florida, every public interest environmental case makes a Clean Water Act claim, because we live in a wetland, we always have a good claim. They know this, so they are trying to sweep that rug from under our feet.”

“The highest value salmon streams in the Russian River, such as Mill Creek and Mark West Creek, have water all summer in the upper portion, but could no longer be protected from pollution or bulldozers under the Clean Water Act simply because tiny lowland sections go subsurface and seasonally disconnect from the navigable Russian River,” said Don McEnhill, Russian Riverkeeper. “The new definition will waste tens of millions of dollars in public taxpayer-funded investments in salmon restoration by exposing endangered salmon to unregulated sediment and nutrient pollution.”

“All waterways are connected,” said Upper Missouri Waterkeeper Executive Director Guy Alsentzer. “This move puts hundreds of miles of Montana waterways at-risk from increased pollution, not to mention the likelihood of jeopardizing recovery of imperiled fish species like the Fluvial Arctic Grayling which depend on cool, clean flows from Montana’s headwaters. EPA and the Army Corps should be working to strengthen, not gut, laws that protect our nation’s vital headwaters and critical habitat for keynote fisheries.”

Photo by Jen Pelz.