Important Judicial Win for Clean Water in the Ozarks and Beyond
The decades-long legal tug of war over the scope of what waters are protected by the federal Clean Water Act saw science and clean water recently score a big win. And while this particular court decision dealt with streams in New Mexico, it will directly help protect the water quality in the streams and rivers of the White River watershed.
WHAT HAPPENED: On August 30, 2021, Judge Rosemary Marquez of the U.S. District Court for the District of Arizona ruled that the so-called “Navigable Waters Protection Rule” (NWPR) of 2020 was too flawed to continue to be used by the EPA. Her ruling means that this rule can no longer be used by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to define “waters of the U.S.” under the Clean Water Act and that it needs to be replaced with a new rule. The EPA responded on September 3 by saying that it would immediately stop using the NWPR to determine what streams and wetlands are protected by the Clean Water Act and would proceed with the process of developing a new rule. This ruling is being applied nationally but this could be appealed.
WHY: Judge Marquez indicated that the NWPR contains significant and unresolvable substantive flaws that would result in continuing and irreparable harm to the nation’s water quality if the rule was not rescinded. Critical to her decision, she stated that the 2020 rule ignored the voluminous amount of science that clearly demonstrates the cumulative impact of smaller streams and wetlands on the water quality of larger rivers and lakes. Illustrating the negative impacts of the NWPR, between June 22, 2020 and April 15, 2021, using the 2020 rule as its guide, the Corps made 40,211 decisions about whether a water was protected by the Clean Water Act or not, and 76% were determined to not be protected by the act.
WHAT IT MEANS FOR PROTECTING WATER QUALITY: The importance of this decision to streams, wetlands and water quality across the U.S. stems from the fact that the NWPR explicitly removed Clean Water Act protections from all “ephemeral waters,” many “intermittent streams,” and about half the nation’s wetlands. This was a huge departure from the previous 50 years of Clean Water Act administration and disregarded the plain fact that pollution of the smallest streams eventually reaches navigable rivers and degrades their water quality. Judge Marquez’s decision to rescind the NWPR means that the EPA and Corps will immediately revert to using pre-2015 criteria for jurisdictional waters that were developed in response to the most recent Supreme Court decision concerning “waters of the U.S.” and protects all waters with a significant connection to navigable waters.
IMPORTANCE TO THE WHITE RIVER: The importance of this decision to the water quality of the White River and streams in our watershed is evident in one important fact: Of the 122,312 miles of linear streams in Arkansas, 74 percent (90,032 miles) are intermittent or ephemeral. This means that under the 2020 NWPR, the vast majority of Ozark streams were no longer being protected by the Clean Water Act. This court decision means that the protections provided by the Clean Water Act to many of those streams will now be restored.
As an example, I enjoy hiking along a tiny stream named Sneed Creek that crosses Push Mountain Road south of Mountain Home and flows directly into the White River. While in the spring there is significant flow after rains and there are some very nice waterfalls to be enjoyed, much of the streambed is dry for most of the year except after a rain. I am sure that all Friends’ members have similar small streams that come to mind. Under the NWPR and a lack of Clean Water Act protections, these stream beds and the water in them were under constant threat of being degraded. With Judge Marquez’s court decision, many of these waters will once again be protected by the Clean Water Act. Importantly, the protection of all these tiny streams means that the quality of the water in the White River, the geographic, environmental, and economic heart of our region, will also be protected.