Marty, we’re back to 1986 — but at least it’s not the Trump Dirty Water Rule.
An Arizona federal District Court judge has thrown out the Trump Administration’s shriveled interpretation of the Clean Water Act’s scope of protection. Six Native American nations brought the case, arguing the Trump rule would damage the water resources upon which they depend. The Trump rule drastically shrank the waters and wetlands considered protected “waters of the United States” under the Clean Water Act. It was one of his administration’s most radical and damaging attacks on the environment.
Through this rule, the Trump Administration replaced a much stronger Clean Water Rule developed by the Obama Administration. Conflicting court decisions since that time had left the ultimate fate of the Trump Dirty Water Rule in legal limbo. Earlier this year, the new Biden Administration started work on rewriting the rule defining “waters of the United States” yet again. However, they did not attempt to immediately vacate the Trump rule. At that point, the Native American nations represented in last week’s decision elected to bring suit.
In her decision, United States District Court Judge Rosemary Marquez said the Trump Administration’s rulemaking process was flawed, and that leaving their rule in effect while a new process was undertaken would result in “serious environmental harm” to the plaintiffs and others affected.
She also found the Trump rule was based on “fundamental, substantive flaws,” conflicted with the underlying law itself, and disregarded the Environmental Protection Agency’s (EPA) own scientific findings that the resulting damage to small streams could damage associated larger water bodies and their ecosystems.
“This is a sensible, correct, legally accurate ruling,” said Stuart Gillespie, an attorney for Earthjustice, an environmental group, who argued the case before the Arizona court on behalf of the half-dozen Native American groups. “[Y]ou have all these tributaries and ephemeral streams that are linked together like capillaries. And the Trump rule hurt all of us, because we are all downstream from those waters. The Trump rule was very extreme in eliminating protections on waters.”
As a result of the decision, the controlling rule for reviewing projects that result in discharges to protected waters reverts back to the Reagan Administration’s 1986 rule. No side today particularly likes that rule, which is widely seen as unclear on key points. However, pending appeals and the process of writing a new clean water protection rule, it’s what we have left in place. “The Biden administration still must work quickly to put in place stronger clean water protections, but this decision gives us hope for our waterways and wetlands like those in jeopardy near the Okefenokee and helping our Southern communities weather increasingly intense storms and floods.” said Kelly Moser, senior attorney and leader of the Clean Water Defense Initiative at the Southern Environmental Law Center.