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09 • 06 • 2021

How Six Tribes Reinstated Protections for Millions of U.S. Streams and Wetlands

By Katie Day

Last year the Trump Administration implemented the “Dirty Water Rule” removing protections for more than half of our country’s wetlands. Six Native tribes, represented by EarthJustice, quickly filed suit. This week a federal judge voted in favor of the tribes and immediately vacated the Dirty Water Rule, restoring protections for millions of streams and wetlands nationwide. This decision represents a major win for our nation’s waterways.

The Navigable Water Protection Rule, commonly referred to as the Dirty Water Rule, changed the way we define “Waters of the U.S.” (or WOTUS). By excluding ephemeral streams, intermittent streams and nonabutting wetlands, the Dirty Water Rule stripped away Clean Water Act protections for 1/5th of our nation’s streams that provide drinking water to 117 million Americans. Millions of miles of streams dependent upon rain and snow-melt to maintain a flow of water, were no longer protected from destruction, fill or polluted discharges. As proven by the immense scientific record assembled in support of the 2015 Clean Water Rule (over 1,200 scientific studies), these small headwaters are connected to larger, navigable waterways throughout the watershed. As such, pollution flows downstream from headwaters in the mountains, into rivers and ultimately the ocean. T[he Dirty Water Rule severely limits our ability to regulate and stop pollution from poisoning our country’s waterways and watersheds.

The Dirty Water Rule also left wetlands that absorb floodwaters and support water quality along our coasts unprotected from destruction and pollution. With climate change causing more frequent, severe and costly weather events, we should be doing everything we can to protect healthy wetland systems and resilient communities. For instance, last year extreme weather cost US taxpayers an estimated $99 billion, and just last week Hurricane Ida caused flooding and sewage spills in communities across the country, from Louisiana to New York.

Surfrider and our 500,000 members and supporters nationwide congratulate The Pascua Yaqui Tribe, Tohono O’odham Nation, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Fond du Lac Band of Lake Superior Chippewa, the Bad River Band of Lake Superior Chippewa, and EarthJustice on this monumental victory. The agencies must now reinstate clean water regulations that predate 2015, while the administration develops a new, longterm rule that establishes federal clean water protections. 

In addition to supporting the court’s decision, Surfrider provided testimony and submitted comments to the EPA and Army Corps of Engineers calling for a replacement rule that fully establishes federal clean water protections that are based on science and consider climate change impacts. We also want to ensure that blue carbon systems, including all wetlands, and important freshwater habitats such as ephemeral and intermittent streams, are protected.  We look forward to seeing the Dirty Water Rule vacated immediately, and replaced with a stronger Waters of the U. S. rule that establishes permanent protections for these critical freshwater environments for the benefit of all, both inland and at the beach. 

In the coming months, the EPA will be drafting a new rule and opening a public comment opportunity. Please stay tuned for opportunities to speak out for clean water!