Navigable Waters Protection Rule

Waters of the United States (WOTUS)

Lake Pend Oreille | Pend Oreille River

On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) finalized the Navigable Waters Protection Rule to define “waters of the United States” (WOTUS). For the first time, the agencies are narrowing the definition of WOTUS so that it includes only four categories of jurisdictional waters and ignores waterways that are critical for drinking water, fisheries, recreation, and more. Instead, this rule only focuses on protecting large, commercially navigable waters, the territorial seas, and their main surface tributaries. 

This new regulation undoes vital protections that have been in place for over 40 years. Waterways within the definition will be protected as “Waters of the US” and all other waterways will not be. This means that they will be susceptible to dumping of toxic chemicals, radioactive waste, sewage, and other pollutants that can threaten public health and wildlife. Both the Endangered Species Act and the National Environmental Policy Act were violated by the EPA and the Army in order to comply with Trump’s executive order to review the rule defining which waters deserve Clean Water Act Protections.

The new Navigable Water Protection Rule, or “Dirty Water Rule”, eliminates protections for:

• Interstate waters that cross state boundaries
• Ephemeral rivers, streams, and canals (waterways that only flow after a rain or snow storm)
• Waterways that do not connect to or contribute to commercially navigable waters via surface flow in a “typical year”
• Wetlands that do not physically touch or become flooded by protected waterways

Millions of miles of rivers and streams in the US and at least 51% of wetlands could lose protection. Water does not obey state lines or arbitrary boundaries, it goes where it wants. Watersheds are vast areas of land that are in need of constant and consistent protection from polluters and misusers. Additionally, streams, both year-round and seasonal, are necessary for a wide array of ecological purposes – such as diversity of vegetation and wildlife, habitat, nutrient storage and cycling, and water supply and filtration.

The agencies claim that this rule will be beneficial to farmers, landowners, and businesses who argued the prior definition of WOTUS was too vague and made it difficult for them to maintain normal operations. This rule is not back by science and instead lets irresponsible individuals and corporations pollute waterways with toxins that will eventually wash downstream to larger bodies of water.

Impacts in our watershed

According to a study done by Trout Unlimited, an estimated additional 1.4 miles of unmapped ephemeral streams exist for every mile of mapped stream in the Lake Pend Oreille basin. And in the USGS High Resolution National Hydrography Dataset, there are 1,726 miles of mapped streams in our basin.

This would amount to approximately 2,416 miles of ephemeral streams in the Lake Pend Oreille watershed.

Under this new rule, these streams could become polluted and then eventually drain into our lake, bringing with them fertilizers, pesticides, and other toxins to our pristine lake. Protecting the chemical, physical, and biological makeup of our water is absolutely critical to human health and any reduction in the oversight of such a valuable resource is irresponsible and will be problematic for years to come.

Actions against new ruling

On February 18, 2020, conservation groups, including our parent organization, WATERKEEPER Alliance, announced a formal notice of intent to sue the Trump administration for eliminating longstanding Clean Water Act protections for US waterways.

In 2019, LPOW signed on to the comment letter that the Waterkeeper Alliance filed on behalf of 92 Waterkeepers opposing the proposed rulemaking to repeal the Clean Water Rule and replace it with a “regulatory framework” that would reduce Clean Water Act protections for our nation’s waters, including Lake Pend Oreille and its associated waterways.