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August 30, 2021

Judge Ditches Trump’s Dirty Water Rule

Victory: Navigable Waters Protection Rule, repudiated for gutting water protections, is no longer the law of the land

Contacts

Erin Fitzgerald, efitzgerald@earthjustice.org

Tuscon, AZ

Today, the U.S. District Court for the District of Arizona said Trump’s Navigable Waters Protection Rule must be vacated because the rule contains serious errors and has the potential to cause significant harm to the Nation’s Waters if left in place while the Biden administration works on revisions to the rule. It represents the culmination of a lawsuit brought by six federally recognized Indian tribes, who are represented by Earthjustice and sued the Environmental Protection Agency (EPA) and Army Corps of Engineers for passing a rule that eliminated Clean Water Act protections for thousands of waterbodies by redefining them as not “waters of the U.S.”

Thanks to this lawsuit and the Court’s ruling, the country will now return to water protections that were in place for years starting in 1986, wiping the Trump Dirty Water Rule off the books. This outcome ensures Clean Water Act protections are in effect while the Biden administration works to develop a new rule. The Dirty Water Rule was particularly damaging for waters throughout the West, Southwest and Great Lakes. The six tribes and their members have been disproportionately harmed by the rule as their livelihoods and culture were put at risk when the Dirty Water Rule eliminated protection for thousands of wetlands, headwater streams, and desert washes.

“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,” said Janette Brimmer, Earthjustice attorney. “This sensible ruling allows the Clean Water Act to continue to protect all of our waters while the Biden administration develops a replacement rule.”

For Tribes, just like for every living being on the planet, water is life and has been so since time immemorial. The Trump administration, however, wholly disregarded that when it put industry profit over people by rolling back Clean Water Act protections. Even though the Biden administration has initiated the process to repeal the Trump Dirty Water Rule, it continues to apply the rule in the meantime, exacerbating the harms to Tribes.

In court filings, the federal government acknowledged that the Dirty Water Rule completely disregarded decades of the best science and neglected to assess the impacts the rule had on downstream communities. EPA’s own science advisors said Trump’s rule threatened to weaken protection of the nation’s waters by disregarding the established connectivity of ephemeral wetlands and small streams to downstream rivers and lakes.

Earthjustice is representing the Pascua Yaqui Tribe, Tohono O’odham Nation, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Fond du Lac Band of Lake Superior Chippewa, and the Bad River Band of Lake Superior Chippewa.

Quotes from our clients:

“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. “Today’s ruling will protect all waters on which the Quinault people rely.”

“It is inconceivable that critical waters or wetlands would be considered insignificant or unworthy of pollution protections,” said  Gunnar Peters, chair of the Menominee Indian Tribe of Wisconsin. ”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.”

“The sacred waters that were put at risk by the Trump administration are essential to our cultural and religious lives as indigenous people,” said Tohono O’odham Nation Chairman Ned Norris, Jr. “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. The Nation will continue working to ensure that these waters receive the protection that is due under the law.”

“Through my work and personal experience, I’m well aware of the importance of protecting all waters in a watershed, both upstream and downstream,” said 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.

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