Yet again, this administration is showing where its allegiances lie. Unfortunately, those allegiances are not to the health and safety of the American people. Rather they are to polluters who wish to save a buck by not doing their fair share in protecting our environment.

In this vein, the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency have begun a formal rulemaking process to rescind the 2015 Clean Water Rule, a rule designed to clarify which water bodies are covered under the Clean Water Act and thereby protect clean water for human consumption as well as for fish and wildlife.

Background of the Clean Water Act

In the most general sense, the Clean Water Act was designed to protect all navigable waters within the United States-commonly referred to as “waters of the United States” or WOTUS. But how do you know if something is a WOTUS? This has been an ongoing legal question for decades, with multiple U.S. Supreme Court opinions attempting to define it.

In 2006, the nine Supreme Court Justices were split three ways on how to define WOTUS (Rapanos v. United States). Clarity on the definition of WOTUS was desperately needed. So in 2015, the EPA and Army Corps of Engineers presented the Clean Water Rule, which attempted to better define which water bodies should be considered WOTUS and therefore covered by the Clean Water Acct.

What We Stand to Lose

The 2015 Clean Water Rule broadened the coverage of water bodies that are covered under the Clean Water Act to include the following:

  • Neighboring waters-water bodies within the 100-year floodplain or within 100 feet of the ordinary high-water mark
  • Waters with a significant nexus-water bodies or wetlands shown to be hydrologically connected to a stream, such as by flow through the subsurface
  • Tributaries-small streams that contribute flow to a larger water body covered by the Clean Water Act

Not that radical of a change, right? These proposed additions simply recognized two basic scientific facts: 1) water flows down hill and eventually joins other, larger bodies of water, and 2) any pollutants dumped adjacent to a river eventually end up in said river, even though they may have percolated through the ground to get there.

Repealing these definitions provides less protection for all rivers in Idaho, but perhaps none so much as the Lost River basins in eastern Idaho. Idaho’s Lost Rivers are closed, intrastate basins. So it’s unclear whether they would be covered by the Clean Water Act if the 2015 Clean Water Rule were repealed. It’s unclear which laws-if any-would protect these watersheds if protection under the Clean Water Act were removed.

Opposition to the Clean Water Rule

While some refer to the Clean Water Rule as "bureaucratic red tape," we feel the more appropriate phrase is “vital safeguards to human health.” The goal of the Clean Water Act is to make all water bodies in the United States swimmable and fishable. That’s not going to happen if we’re polluting the smaller water bodies or adjacent landscapes that feed into these larger systems.

To make matters worse, Congress is attempting to repeal the rule without following laws that would otherwise apply to such a process. Instead, Congress wants to exempt the repeal from legal review allowed under the Administrative Procedures Act.

What Can You Do?

Be a voice for clean water and tell the EPA and Army Corps of Engineers why the 2015 Clean Water Rule should not be revoked. These agencies want to know what the public thinks about rescinding these rules. Make your voice heard and submit comments today!

Also, let your elected officials know that it is inappropriate to remove legal review on decisions that could affect the health and safety of Idahoans. Call, email or visit your representatives. Let them know that you stand for clean water and do not want to see proper legal review removed from this decision-making process.