Federal judge throws out [President 45’s] administration [#WOTUS] rule allowing the draining and filling of streams, marshes and wetlands — The Washington Post #DirtyWaterRule

Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.

From The Washington Post (Dino Grandoni and Brady Dennis):

A federal judge Monday threw out a major Trump administration rule that scaled back federal protections for streams, marshes and wetlands across the United States, reversing one of the previous administration’s most significant environmental rollbacks.

U.S. District Judge Rosemary Márquez wrote that Trump officials committed serious errors while writing the regulation, finalized last year, and that leaving it in place could lead to “serious environmental harm.”

A number of business and farm groups had supported the push to replace Obama-era standards with the Navigable Waters Protection Rule, on the grounds that states were better positioned to regulate many waterways and that the previous protections were too restrictive.

The ruling in the U.S. District Court for the District of Arizona, which applies nationwide, will afford new protections for drinking-water supplies for millions of Americans, as well as for thousands of wildlife species that depend on America’s wetland acreage.

Márquez, a Barack Obama appointee, noted that the U.S. Army Corps of Engineers, which oversees permits to dredge and fill waterways under federal jurisdiction, determined that three-quarters of the water bodies it reviewed over a nearly 10-month period did not qualify for federal protection under the new rule. Federal agencies identified 333 projects that would have required a review under the Obama rule, she added, but did not merit one under the Trump standards…

Home builders, oil drillers and farmers — who have long argued that earlier restrictions on developing land made it too difficult to do their work — are likely to appeal…

North American Indian regional losses 1850 thru 1890.

In June, the Biden administration announced that it would write regulations to strengthen wetland protections but would keep the Trump-era rule on the books while it did so. But tribal and environmental groups pressed the court in Arizona to vacate the previous administration’s rule sooner, since some wetlands may be irreparably harmed during the time it would take to replace it…

“We came in and said, ‘No, no, no, no, you can’t leave this in place,’” said Janette Brimmer, a senior attorney for Earthjustice, which represented the Native American and green groups in court. She added, “This is hugely good.”

The ruling marks the latest salvo in a decades-long legal and regulatory battle over the full extent of the Clean Water Act’s reach.

That landmark 1972 law prohibits polluting “waters of the United States” without a permit. But the question of which waterways fall under that category has been debated in courtrooms and agencies ever since.

In 2015, Obama’s administration moved to protect a broad swath of water bodies, including “ephemeral” streams that appear only after rainfall and help purify water. Hydrologists have found that even these intermittent rivulets can affect the water quality of large rivers and lakes downstream.

But the Trump administration replaced that regulation with a far narrower one, on the grounds that the Obama rule exceeded the government’s legal authority.

“They basically ignored it all,” Mark Ryan, a former EPA lawyer who helped craft the Obama-era regulation, said of the Trump team. “It was a voluminous bit of science.”

With Monday’s court ruling, agencies will go back to applying water protection standards from the 1980s, which are more expansive than the Trump-era rule but not as sweeping as Obama’s.

Aerial view of wetlands in Okefenokee swamp. By Ryan Hagerty – http://www.public-domain-image.com/public-domain-images-pictures-free-stock-photos/nature-landscapes-public-domain-images-pictures/national-parks-reserves-public-domain-images-pictures/aerial-view-of-wetlands-in-okefenokee.jpg, Public Domain, https://commons.wikimedia.org/w/index.php?curid=24912021

The push to overhaul federal clean-water regulations has caused ongoing fights in places such as in Georgia, near the sprawling Okefenokee Swamp. A proposal to strip-mine for titanium would have received strict scrutiny under the Obama-era standards, and some federal officials and environmental groups raised concerns about its potential impacts.

But last year the Army Corps of Engineers determined that under the revised Trump rule, the area was no longer federally protected…

“This is a welcome day for the Okefenokee, the wetlands surrounding the refuge, and will force Twin Pines to reevaluate this disastrous project,” Christian Hunt, Southeast program representative for Defenders of Wildlife, said in an email.

Created by Imgur user Fejetlenfej , a geographer and GIS analyst with a ‘lifelong passion for beautiful maps,’ it highlights the massive expanse of river basins across the country – in particular, those which feed the Mississippi River, in pink.

Here’s the release from Earth Justice:

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.

Learn more about how the Dirty Water Rule gutted protections and some of the watersheds it put at risk.

Quinalt Indian Nation dancers on beach. Photo credit: Quinalt Indian Nation

“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.”

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