Supreme Court Rolls Back Clean Water Act Protections

On May 25th, the US Supreme Court issued a ruling sharply curtailing Clean Water Act protections for wetlands that are vital to healthy and functioning watersheds. While not directly addressed, the decision also appears to put streams that don’t have year-round flow at risk of losing Clean Water Act protection as well.

Ruling in Sackett v. EPA, the court limited Clean Water Act protection for wetlands to those with a “continuous surface connection” to other “Waters of the United States,” which will remove federal protections for the majority of the nation’s wetlands. Earlier rulings had protected any wetlands with a “significant nexus” to Waters of the U.S., and for decades the Clean Water Act has covered wetlands that are “adjacent” to those waters. In the case in question, the court found that a landowner did not need a federal Clean Water Act permit to fill in a wetland lacking a “continuous surface connection” to a water body flowing into Idaho’s popular Priest Lake that provides important cutthroat trout habitat.  

“We are disappointed with the Supreme Court’s ruling. The court has severely eroded a 50-year national commitment to clean water, and misses the obvious point that wetlands are often connected to streams through subsurface flows,” said Chris Wood, president and CEO of Trout Unlimited. “The ruling is a victory for muddy thinking, and directly compromises the stated purpose of the Clean Water Act—to make our rivers and streams more fishable, swimmable, and drinkable.”

The ruling is the latest in a decades-long debate over which streams, rivers, and wetlands should be protected by the Clean Water Act. In 2015, Trout Unlimited and our partners backed the Clean Water Rule, which was grounded in science and would have confirmed protections for small “ephemeral” and “intermittent” streams, headwaters, and wetlands.  That rule was blocked by the courts, repealed by the Trump EPA, and briefly replaced with the Navigable Waters Protection Rule, which offered weaker protections for small streams. In findings published in a peer-reviewed journal, TU showed that half of all waters in the contiguous United States would have been unprotected under the weaker Navigable Waters Protection Rule.  The loss of protection is especially worrisome in more arid western states, like Colorado, where many streams do not maintain flow year-round.

The EPA finalized a new rule in March, which reinstated Clean Water Act coverage for millions of miles of streams and millions of acres of wetlands. 

Rather than clarifying matters, the Supreme Court ruling in Sackett will lead to more confusion and litigation in the coming years over the Clean Water Act, the revised Waters of the U.S. rule, and protections for wetlands and streams. 

While the issues litigated in Sackett did not directly address the question of stream protection, the Supreme Court’s majority opinion proposed a test for what waters are covered under the Clean Water Act that could leave non-perennial streams unprotected. These ephemeral and intermittent streams have a major effect on the connected downstream perennial waters on which fish and people rely.

“Protecting water quality starts at the source, in our headwater and seasonal streams and the wetlands that sustain them,” said CTU Executive Director David Nickum. “It is just common sense that allowing degradation upstream will lead to problems downstream.”

Here in Colorado, the main concern in the aftermath of Sackett is not with traditional point-source discharges but with dredge and fill activities historically regulated under Clean Water Act Section 404. Colorado law has a more expansive definition of waters of the State that are restricted from having pollutants discharged without a permit; through its point-source pollutant permitting system, the Colorado Department of Public Health and the Environment works to keep water quality at levels that can support uses from drinking water supplies to sustaining aquatic life. Unfortunately, Colorado does not have a similar state permitting program for dredge and fill activities and instead has relied on federal permitting to protect water quality and watersheds. Post-Sackett leaves a major regulatory gap in handling projects that formerly would have operated under federal 404 permits.

With many waters of Colorado potentially losing their federal protection, the State must step forward to ensure that these “gap waters” are protected and that an appropriate state permitting program can backfill for the lost federal protections.  Colorado TU looks forward to working with the Administration and with the General Assembly to advance a Colorado solution that can ensure the continued health of our watersheds even in the face of the Supreme Court’s Clean Water Act rollback.

A Mixed Verdict on Water Quality Rollback

Confluence Park, Denver South Platte River.

Conservation interests enjoyed a partial victory in the Colorado Water Quality Control Commission’s June hearing, in which TU and others opposed a proposal to significantly rollback existing “antidegradation” regulations that restrict the ability of dischargers to degrade existing water quality. The rollback proposal emerged from an unanticipated 2020 decision under which the Commission ignored its own rules and supported designation of portions of the South Platte downstream of Denver as “use protected” – a designation that allows dischargers to degrade water quality that is currently above the floor set by minimum standards. The 2021 proposal would have modified the antidegradation rules that were ignored in 2020, making it easier to adopt other such decisions to weaken protection on other streams across Colorado. While the current standard has generated confusion and is not as strong as TU and others would wish, the proposed rollback would have dramatically weakened it from the existing rule.

The Commission received petitions signed by thousands of people, hundreds of letters, and heard testimony from dozens of members of the public and the two affected local governments – Adams County and Commerce City - pleading to change their June 2020 decision and opposing the proposed rollback of the underlying water quality standards. 

Following two hours of deliberations, the Commission made a preliminary decision last Friday to eliminate the troublesome current antidegradation provision, but not until 2031, to allow for a stakeholder process that will look more closely into antidegradation and make recommended changes to the Commission.  The decision is a partial win for water quality because it keeps the language of the regulation as is in the interim, rather than replacing it with the original proposal which would have significantly rolled back water quality protections.  However, while choosing to keep the existing language as is, the Commission left the door open for more arbitrary decisions over the next 10 years, like its 2020 decision on the South Platte. 

At the heart of the controversy is the antidegradation rule’s existing language, which allows degradation of water quality if the Commission deems a stream to be “substantially polluted” by human activity, but only if there is a showing that the pollution is irreversible.  Many dischargers advocate the elimination of this requirement as it is a hard test to overcome, simply because pollution caused by human activity tends to be reversible. 

Last Friday’s deliberations revealed confusion among some of the Commissioners as to the reason for last year’s South Platte decision, but audio of their deliberations during the June 2020 hearing reveals a belief that antidegradation protection was meant to apply only to “clear mountain streams” and not to urban areas.  That belief that has no basis in fact or in the Clean Water Act.

TU was relieved that the Commission’s decision keeps intact the existing rule, with its requirement that antidegradation protection applies unless human-made pollution is shown to be irreversible, rather than rolling that policy back yet further and enabling greater pollution on more streams like the Denver South Platte.  However, the Commission’s failure to affirm the current requirement and even discuss revisiting the inconsistent 2020 South Platte decision simply ignores the public’s pleas to better protect the urban waterway.

The Commission’s action leaves the door open for it to, once again, disregard the rule and deprive streams of antidegradation protection for human pollution, even if the damage is reversible, as they did to the South Platte in 2020. TU and other conservationists must remain vigilant and oppose such future site-specific efforts to rollback antidegradation protections. The decision is also troublesome because it creates yet another lengthy stakeholder process that has historically favored well-funded industry voices.  Simply put, conservation groups and environmental justice advocates have far fewer resources to engage in such long-term processes, whereas dischargers’ well-paid lawyers and consultants have ample resources to participate.  In creating yet another process, the Commission turned a deaf ear to the conservation groups’ plea to level the playing field.

While dismayed that the Commission failed to take stronger action to support antidegradation including on the Denver South Platte, TU is deeply grateful to the members and partners who spoke out and whose voices were instrumental in helping prevent the existing rule from being weakened. We will continue to seek opportunities to ensure that urban rivers including the South Platte enjoy the stronger protections they and their communities deserve.

Clean Water rollbacks will put us back 50 years - what comes next?

Final rule announced; what it says and what comes next.

Final Rule Announced. 

On January 23rd, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) announced a final “Waters of the U.S. Rule.”  This rule replaces a 2015 Rule, which clarified the extent of jurisdictions for clean water act protections.  This new 2020 rule not only reverses the clarifications made in the 2015 rule, but further reverses protections that have been in place dating back to the 1970s.

What it Means?

We are awaiting publication of the final rule and will need to review in detail once available. 

Based on our reading of the proposed rule (we will update this after we review the final rule), the new rule would end Clean Water Act protections for millions of stream miles in the country – streams that contribute to the drinking water supplies of 117 million Americans and provide essential fish and wildlife habitat that support a robust outdoor recreation economy worth $887 billion.  The rule would also erase protections for millions of acres of wetlands, a critical part of functioning watersheds, including groundwater recharge, pollution filtration, as well as protecting communities from flooding. In eliminating these protections, the new 2020 Rule would deregulate a host of development activities, such as pipeline construction that will, over time, degrade hunting and fishing opportunities in every state in the country

Stay tuned for more.

What comes next? How can TU members engage?

Because this is a “final” rule, there is no additional opportunity for comment with the agencies.  However, there are still things that you can do to help voice your concerns about this rule and related attacks on clean water protections.

Write to Congress & Your Governors:

• Congress: Tell your members of Congress that you are angry about this rule and other attacks on the Clean Water Act and concerned about protecting our nations’ waters.  Urge them to oppose any legislative proposals to further weaken protections and urge them to do everything in their power to protect clean water.

• Governors: Tell your Governors that you are concerned about rollbacks for protections of waters in your state.  Many states will challenge this new rule in court.  Urge your Governors to join a challenge against this rule and do everything in their power to protect state waters.

Share you Stories:  We encourage you to share your stories and concerns through letters to local papers or blog posts on TU.org or other online publications.  The TU Communications team has templates and tools available to assist you. Contact Shauna Stephenson (shauna.stephenson@tu.org) for help drafting or submitting.

Background:

In December 2018, the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) unveiled a proposal to significantly narrow the scope of protections for our nation’s waters. The proposal would replace a positive, TU-supported 2015 rule (the Clean water Rule) designed to clarify the scope of Clean Water Act protections, which includes protections for headwaters, intermittent and ephemeral streams, and wetlands. The new proposal would substantially weaken the Clean Water Act, one of the Nation’s most effective natural resource laws.

The Clean Water Act and the 2015 Rule are vital to TU’s work and to anglers across the nation. Whether TU is working with farmers to restore small headwater streams in West Virginia, removing acidic pollution caused by abandoned mines in Pennsylvania, or protecting the world-famous salmon-producing, 14,000-jobs-sustaining watershed of Bristol Bay, Alaska, we rely on the Clean Water Act to safeguard our water quality improvements.   

TU members and volunteers contributed more than 4,000 comments for the record, including 25 council and chapter letters and 4,406 individual comments on the proposed rule.

Read TU Comments for the Record:

• Trout Unlimited State Council Letters

• Trout Unlimited Comments (National Office)

• TU State Maps: Waters of the U.S.

Additional Materials:

• 2019-Sportsmen’s Fact Sheet

• 2019-May update to TU Volunteers

• 2019-February update to TU Volunteers

• 2018-December update to TU Volunteers

• Federal Register Publication of Replacement Rule 84 FR 4154 (February 15, 2019). 

• Learn why it’s so important to protect clean water.

For questions, please contact:

Steve Moyer
Vice President of Government Affairs steve.moyer@tu.orgKate Miller
Director of Government Affairs kate.miller@tu.org

EPA and the Army Corps of Engineers aim to cut protections for thousands of streams

Proposal leaves important drinking water sources and habitat unprotected from pollution 

For immediate release 

Dec. 11, 2018 

Contact: 
Steve Moyer, steve.moyer@tu.org, (571) 274-0593
Vice President of Government Affairs

Shauna Stephenson, shauna.stephenson@tu.org (307) 757-7861
National Communications Director

(Dec. 11, 2018) WASHINGTON D.C. -- Trout Unlimited announced its strong opposition to the proposed rollback of protections for thousands of miles of streams and many wetlands today by the Army Corps of Engineers and the Environmental Protection Agency. 

The proposal outlines an ill-conceived approach to applying the Clean Water Act by eliminating protection for thousands of stream miles in the country – streams that supply drinking water for millions of Americans. It also erases protections for thousands of acres of wetlands, a critical component to a functioning watersheds. 

 The proposal will deregulate a host of development activities, such as pipeline construction that will, over time, degrade hunting and fishing opportunities in every state in the country. 

“Today’s proposal is so far off track that you cannot see the track from where this proposal landed,” said Chris Wood, president and CEO of Trout Unlimited. “Headwater streams, especially ephemeral streams, are like the capillaries in our bodies – they're small and easy to overlook, but we wouldn’t last long without them. It is a fundamentally flawed proposal.” 

Polls show Americans overwhelmingly support protections for clean water and the Clean Water Act. 

“The Agencies’ proposal turns its back on the importance of small headwater streams to healthy waterways and sportfishing recreation," said Steve Moyer, vice president of government affairs for Trout Unlimited.  “Sportsmen and women know that we all live downstream. All the benefits of our larger streams, rivers, and bays are dependent on the health of our small streams.” 

Using the Clean Water Act to protect headwater streams is especially valuable to Trout Unlimited. At a basic level, 59 percent of rivers and stream miles in the lower 48 states are intermittent or ephemeral (i.e., they are small or headwater streams that do not flow year-round). However, in the drier southwest, that figure is higher. In Arizona, 96 percent of the waters are intermittent or ephemeral streams. EPA Region 8, consisting of Colorado, Utah, Wyoming, Montana and the Dakotas, estimates that only 17 percent of the waters in its states flow year-round.   

Headwater streams contribute to the drinking water supplies of 117 million Americans, protect communities from flooding, and provide essential fish and wildlife habitat that support a robust outdoor recreation economy worth $887 billion.  

“Clean water is not a political issue. It is a basic right of every American,” Wood said. “To be effective, the Clean Water Act must be able to control pollution at its source -- upstream in the headwaters and wetlands that flow downstream through communities to our major lakes, rivers, and bays. We urge the Agencies to reconsider their flawed proposal and remember the very purpose of the Clean Water Act.” 

Frequently asked questions: 

How Did We Get Here?  

When the Clean Water Act was passed in 1972, it protected virtually all of America’s waters--every type of stream, wetland, river, lake or bay. A 2001 Supreme Court decision first questioned if all wetlands and streams should in fact be protected--and the issue has become ever-more politicized since then. 

In 2015, under President Obama, the EPA finalized a rule (the Clean Water Rule) clarifying that the Clean Water Act protects all of our nation’s streams and millions of acres of wetlands. The rule gained strong support from sportsmen, scientists and the public, but it was opposed by a powerful coalition of agriculture and development interests  

What’s happening now? 

Early in 2017, President Trump directed the EPA to first rescind and then replace the Clean Water Rule. The Administration’s efforts to rescind the 2015 Rule have partially blocked, as the 2015 Rule is in effect in 22 states. The new proposal, unveiled today, is an unwarranted effort to replace the 2015 Rule. The new proposal is NOT based in science and is NOT consistent with the goals of the Clean Water Act. The new rollback proposal will undermine long standing protections for wetlands and small streams, it will harm hunting and fishing in America. 

Why should sportsmen care? 

The Clean Water Act and the 2015 Rule are vital to TU’s work and to anglers across the nation. Whether TU is working with farmers to restore small headwater streams in West Virginia, removing acidic pollution caused by abandoned mines in Pennsylvania, or protecting the world-famous salmon-producing, 14,000-jobs-sustaining watershed of Bristol Bay, Alaska, we rely on the Clean Water Act to safeguard our water quality improvements. 

TU members, and sportsmen and women nationwide, want to move forward with progress on cleaning up our nation’s waters, not go backwards. Thus, the Clean Water Act needs to be improved, not weakened—the as was the case in today’s proposal. 

 Trout Unlimited is the nation’s oldest and largest coldwater fisheries conservation organization dedicated to conserving, protecting and restoring North America’s trout and salmon and their watersheds. Follow TU on Facebook and Twitter, Instagram and our blog for all the latest information on trout and salmon conservation.  

New Clean Water Rule

On June 17th, 2015 the Denver Post posted Colorado Trout Unlimited executive director David Nickum's, and Rocky Mountain Farmers Union president Kent Peppler's article that highlighted the new clean water rule from U.S. Army Corps of Engineers and the EPA. The new rule is not an expansion of the Clean Water Act, but rather a "clarification of Clean Water Act jurisdiction," to quote the article directly. The rule allows for the water fish use as their habitat, and Coloradans use for safe drinking water, to be protected. It also ensures the protection of streams and wetlands that are essential to Colorado's outdoor recreation economy. The full article can be found below.

For nearly 15 years, 10,000 miles of streams and thousands of acres of wetlands in Colorado have been at greater risk of being polluted or destroyed due to confusion over what bodies of water are protected under the Clean Water Act. That all changed last week thanks to a new rule from the EPA and U.S. Army Corps of Engineers that restores protections to the vital waters that provide habitat for fish and wildlife and safe drinking water to two out of three Coloradans.

The rule is a clarification of Clean Water Act jurisdiction. It gives Colorado's farmers and ranchers a clear understanding of the rules that protect the water we rely on for the production of healthful food while maintaining all of the existing Clean Water Act exemptions for normal farming activities, and in some cases, strengthening them. The rule also gives Colorado sportsmen certainty that the wetlands and headwater streams that form the backbone of our state's $3 billion outdoor recreation economy will be safeguarded.

Contrary to what opponents have claimed, the rule does not expand the Clean Water Act. The rule does not protect any new types of waters or regulate ditches. It does not apply to groundwater, nor does it create any new permitting requirements for agriculture, or address land use or private property rights.

In crafting the long-overdue final rule, the agencies reviewed comments from more than 1 million Americans. Advocates on all sides had called for the clarification the rule provides, prompting the EPA and Army Corps to hold more than 400 meetings with stakeholders. The final rule is a clear victory not only for farmers, ranchers and sportsmen, but for all Coloradans. Unfortunately, it may not last long.

Before the clean water rule was even finalized, some members of Congress began to engage in last ditch efforts to block the anticipated rule, and restart the multi-year rulemaking process. Now that the rule has been written, these attacks have intensified. Inflammatory rhetoric about an administrative "power grab" are driving attempts to pass legislation in both the House and Senate that would force the agencies to go back to the drawing board and rewrite the rule. Not only would these efforts unnecessarily delay a process that has been well vetted from top to bottom, it would also have serious, damaging impacts on our water supply, our local farmers, sportsmen and our state's economy.

As Congress considers this unnecessary delay, Colorado's senators have a critical role to play. Sen. Michael Bennet has supported these efforts to protect clean water in the past, while Sen. Cory Gardner has been in opposition. We urge them both to do what's in the best interest for their constituents and oppose efforts to derail the clean water rule.

There is a misconception that all farmers oppose the clean water rule. In fact, farmers, ranchers and sportsmen have stood side by side for decades in the fight for clean water, and were present during the many public meetings and listening sessions the agencies held as they were forming the final rule. As we face down 11th-hour efforts to block the rule, we urge support for the clean water rule across the Continental Divide, from headwater trout streams to farm fields, to sustain our Colorado way of life for us and future generations of farmers, hunters and anglers.