On January 23, 2020, the Trump Administration finalized their “Dirty Water Rule” (officially known as the Navigable Waters Protection Rule). If allowed to go forward, this rule will significantly reduce the number of waterways protected by the Clean Water Act. Many consider it “the largest rollback of the Clean Water Act since the modern law was passed in 1972” as it strips protections from many small streams and wetlands that have been protected for decades.

Intended to protect our waters for swimming, fishing and drinking, the Clean Water Act protects waterways from pollution and destruction. Now, however, significantly fewer waterways may be covered by those protections:

• 2 million+ miles of streams
• 56 million+ acres of wetlands (more than half of our remaining wetlands)

Incredibly, the EPA states that they do not know – and have no way to know – which streams and wetlands will no longer be protected. This is despite the Agency’s preliminary analysis showing that about 18% of US streams and 50% of wetlands will be left unprotected. Due to unclear language in the rule, significantly more streams may also go unprotected.

The loss of protections for these waters threatens the drinking water of tens of millions of Americans and opens up countless bodies of water in every state to pollution and destruction. Removing these safeguards will put low income communities and communities of color at even greater risk due to disproportionate impacts from pollution and flooding. In some places, like New Mexico, Arizona and other Southwestern states with high numbers of small, intermittent and ephemeral streams, the impacts will be especially severe with over 80% of streams at-risk of losing protection. In wetter areas, like North Carolina, large rivers like the Cape Fear and nearby communities, are at greater risk for flooding due to loss of wetland protections.

Here are some of the changes in the rule that stand out:

• Any stream or wetland that is solely dependent on rain or snow for its flow or is not connected at the surface to nearby waters will no longer be protected by the Clean Water Act, even though they are critically important and carry pollution to larger streams and rivers;
• The rule eliminates a category of waters previously protected known as “adjacent waters,” which were defined based on their distance from other jurisdictional waters;
• The rule no longer provides for certain wetlands and waterbodies to be covered if they are determined, on a case-by-case basis, to not have a “significant nexus” (chemically, physically or biologically) to jurisdictional waters, which was part of a previous standard established by the Supreme Court.

Scientific advisers, including those appointed by the Trump Administration, have made clear that the rule is inconsistent with the best science on the connectivity of waters.

For more in-depth analysis, check out both the Union for Concerned Scientists and NRDC for what this rollback means for our nation’s waterways and our communities.

WHAT’S NEXT

UPDATE: The rule was published  in the federal register on 4/21/20 and will take effect in 60 days.

The bottom line is, due to the ambiguity in this new rule, there will be confusion for states and other permitting agencies and those seeking permits as to how to proceed. Legal challenges to the rule are also anticipated, meaning that the rule may be stopped from taking effect in some or all places. We will all have to stay tuned for what this ultimately means for our waters. We will be sure to provide you with regular updates. In the meantime, if your state or tribe move forward with developing new rules or permitting processes in response to the rule or you know of specific waters that will no longer be protected, let us know and we will add it to the information we track.