On June 22, 2020, the federal Environmental Protection Agency (EPA) put into effect a new regulation that reduces the scope of waters protected by the Clean Water Act. The new rule, the Navigable Waters Protection Rule, limits the definition of protected waters of the United States to “territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds, and impoundments; and wetlands adjacent to jurisdictional waters.” All other waters are excluded from protection. 

Specific exclusions include ephemeral waters, stormwater runoff and control features, groundwater, certain artificial lakes and ponds, and most water-filled depressions created by mining or construction activities. This rule is part of the current administration’s overall effort to roll back regulations protecting the environment.

The EPA calls the new rule balanced and clarifying in regard to the roles of federal and state protections of clean water. Associated General Contractors of America CEO Stephen E. Sandherr wrote “the new clean water rule employs sound administrative policy to protect our vital waterways while providing permitting clarity for infrastructure and development projects to proceed in a timely manner. We expect this rule will put an end to the regulatory uncertainty and bureaucratic confusion that threatened to stifle countless essential projects to improve our infra-structure and the environment across the country.” 

In January, National Farmers Union President Roger Johnson wrote that “Family farmers and ranchers have been confused by ambiguous water regulations for many years. Now that we have a more precise definition of WOTUS, we hope that farmers will better understand which kinds of water are subject to federal authority and which are not. But farmers don’t just need greater clarity – they also need access to clean, safe water for their families, their farms, and their communities. These needs are not mutually exclusive; when regulating natural resources, EPA and the Army Corps of Engineers must balance certainty for farmers, ranchers, and property owners with protections for our water supply.”

Not everyone supports the new rule. The EPA’s own Science Advisory Board commented that the new rule departs from EPA’s recognized science. A lawsuit, filed on June 23, 2020 on behalf of a group of tribes, environmental groups, and labor and justice organizations asks the federal courts in Washington state and Arizona to set aside the current administration’s Navigable Waters Protection Rule, which limits which water-ways are protected by the Clean Water Act and other federal laws, and reinstate the Clean Water Rule, an Obama-era rule that has a broader definition of “waters of the United States” that fall under federal protection. Parties to the lawsuit in Arizona include the Tohono O’Odham Nation, Pascua Yaqui Tribe, and Mi Familia Vota. 

Chairman Peter S. Yucupicio, Pascua Yaqui Tribe said “the new rule will mean vast majority of Arizona’s waterways will become unprotected from pollution and degradation. It is our responsibility not only to protect our tribal lands but our ancestral homeland.” Another party to the lawsuit, the Idaho Conservation League, states the new law “ignores, for the most part, the science of hydrology which tells us that there is a connection between surface water and groundwater, including most of our drinking water”. 

As part of the that lawsuit, five representative watersheds across the US were mapped to demonstrate the significant impacts of new rule. The Upper San Pedro watershed map, one of the five, show that less than 7% of its wetlands and streams will now be protected by the Clean Water Act. The lawsuit asserts that without Clean Water Act protections, industries can dump uncontrolled discharges of toxic, radiologic, and pathogenic pollution, harming drinking water supplies, recreational waters, wildlife, animals, and people.

The Arizona Department for Environmental Quality (ADEQ) spokesperson, Caroline Oppleman, reported that ADEQ is now reviewing how the EPA’s Navigable Waters Protection Rule effects Arizona waters. The agency is evaluating all options to protect Arizona surface waters including developing a customized state surface water protection program to address waterways not included in the new definition. ADEQ is coordinating with the Army Corps of Engineers to identify methods to make specific determinations for Arizona’s waters. Interested parties can sign up for email updates at https://public.govdelivery.com/accounts/AZDEQ/subscriber/new?topic_id=AZDEQ_290.