The 45-day comment period for a proposed rule to significantly reduce the scope of water bodies protected under federal law across the country is rapidly approaching.
The proposition changes the Clean Water Act’s definition of the “Waters of the United States,” and would roll back protections for wetlands and some river tributaries.
Reducing the scope of what is protected under the Clean Water Act will make development on lands a lot easier, according to Daniel Cordalis, Dinè and an attorney at the Native American Rights Fund, a non-profit law firm that ensures federal and state governments uphold laws, treaties, and legal obligations.
“Basically, it makes it a lot easier for you to either fill in waters or pollute water,” Cordalis said. “For tribes who are trying to protect, especially off reservation treaty or other resources they have rights to [including] waters that flow onto the tribal lands, [it] makes it a lot harder to protect those because you don’t have that strong federal law hook.”
Up to 80 percent of wetlands could lose protections, according to Cordalis. The new definition would also redefine a tributary to only include streams with year-round water or a steady “wet season” flow.
Wetlands often store floodwater and filter pollutants — this could put drinking water at risk for millions of people and increase flooding risks in certain areas, according to American Rivers.
“This feels a lot like the federal government stepping away from their responsibility to protect water,” Cordalis said.
The Environmental Protection Agency and Army Corps of Engineers announced the rule on Nov. 17, saying they are implementing the Supreme Court’s 2023 decision in Sackett v. EPA, which said the Clean Water Act only extends to wetlands with a “continuous surface connection” with “Waters of the United States.”
“When it comes to the definition of ‘waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” stated EPA Administrator Zeldin in a press release. “Democrat Administrations have weaponized the definition of navigable waters to seize more power from American farmers, landowners, entrepreneurs, and families.”
The federal agencies said Americans “want clean water and a clear rule” and shouldn’t have to spend more money for an expert to say if the “Water of the United States is on their property.”
“EPA is delivering on President Trump’s promise to finalize a revised definition for [Water of the United States] that protects the nation’s navigable waters from pollution, advances cooperative federalism by empowering states, and will result in economic growth across the country,” Zeldin said.
The Native American Rights Fund put together a list of resources, urging tribal leaders to review the proposed rule and submit a comment before Jan. 5.
With a short comment period some organizations are requesting an extension for more time to review the proposal.
“The 45-day comment period is not following executive orders,” said Ken Norton, a Hoopa Valley tribal member.
Norton is the land director for the Hoopa Valley Tribe and the chairman of the National Tribal Water Council.
“The federal government has an obligation to consult in a meaningful way with tribes when the proposed action has a significant impact [to tribes],” Norton said. “And their regulatory impact analysis states that it will have a significant impact to tribes.”
On Dec. 11, the National Tribal Water Council and the National Tribal Caucus submitted a letter requesting at least a 30-day extension for the public comment period for the proposed rule.
The National Tribal Water Council also submitted a 13-page letter, embedded below, signed by Norton, detailing major concerns of the proposal to update the definition of “Waters of the United States.”
“The NTWC [water council] is concerned that the Proposed Rule takes a drastic turn than Sackett dictates by removing more of the Nation’s waters than necessary from coverage under the CWA. The proposal calls on states and tribes to fill the gaps, imposing an immense burden on those governments,” the conclusion reads.
The letter highlights concerns including ways polluters would have an increased impact on waterways due to the proposed rule. It also details how the change of key definitions in the rule would diminish Clean Water Act protections specifically with the terms “relatively permanent,” “tributary,” “continuous surface connection,” and the outlined exclusions listed in the proposal — thus reducing the scope of what is “Waters of the United States” and eligible for protection under the Clean Water Act.
Once the comment period closes, a final rule will be issued by the EPA and Army Corps of Engineers.
Submitting comments is especially important for the potential to challenge the rule in litigation down the line, according to Cordalis.
“While I anticipate this to be a really bad rule, these things can change in the future, and that’s why getting good comments in can be useful,” Cordalis said.
This story is co-published by Underscore Native News and ICT, a news partnership that covers Indigenous communities in the Pacific Northwest.
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