“Waters of the United States” Update

Upper Missouri Waterkeeper joined Waterkeeper Alliance and 77 other U.S. Waterkeeper groups in submitting public comments to the Environmental Protection Agency and the Army Corps of Engineers to bolster and restore important clean water protections. The comments addressed the “waters of the United States” (WOTUS) definition and the Navigable Waters Protection Rule (NWPR) — commonly known as the “Dirty Water Rule” — definition by the Trump administration that was recently voided by court order.

The Dirty Water Rule had stripped protections against uncontrolled industrial, municipal, and agricultural pollution discharges into many rivers, streams, lakes, and ponds, leaving much of our waterways – as much as 50% of Montana’s waterways – unprotected against pollution that harms our water supplies, drinking water, fisheries, and recreational waterways. The NWPR also impeded the ability of states, tribes, communities, and other deferral agencies and EPA itself to protect waterways across the US, and thus, has resulted in “destructive impacts to critical water bodies” and “significant environmental degradation.” Polluted water is unusable water for nearly all users.

The recent abandonment of the Dirty Water Rule is a victory for clean water across the nation. As the comments state, “the NWPR is plagued with procedural and substantive legal error; is causing significant, actual environmental harm to the nation’s waters; and will continue to cause harm so long as it remains in place. The NWPR radically redefined ‘waters of the United States’ under the CWA in a manner that is contrary to the objective of the CWA and the scientific information in the administrative record. It violates the plain, unambiguous meaning of the CWA, and disrespects decades of binding U.S. Supreme Court and myriad other federal court precedents. The NWPR flies in the face of congressional intent; is harming public health, water quality, and wildlife; constitutes arbitrary and capricious agency action and an abuse of discretion; and is otherwise unlawful.”

The comments also urge the agencies to take immediate action in response to the court ruling and fully restore and implement the pre-2015 regulatory definition of WOTUS  in order to afford protection to America’s valuable and finite water resources. In addition, the comments recommend reviewing jurisdictional determinations made under the NWPR, halting projects that are polluting, dredging, or filling waters of the United States that were made non-jurisdictional under the NWPR, and ensuring that all permitting and enforcement actions are implementing the pre-2015 regulatory definition. The pre-2015 regulatory definition was in effect for nearly four decades and protects the country’s waters consistent with the Clean Water Act (CWA).

Read the full comments here.

It’s critical that the agencies take urgent action to restore and implement the longstanding protections provided by the pre-2015 regulatory definition to immediately address the ongoing harms to our waterways, ecosystems, businesses, and wildlife that depend upon clean and healthy waterways.