Setting the bar low on clean water

The Clean Water Act is arguably the nation’s most important environmental law. For decades, it has been wildly successful in protecting and cleaning up rivers and streams that were a public health and environmental nightmare.

With the stroke of a presidential pen this week, some of those gains are now at risk.

President Trump’s executive order to scrap the Clean Water Rule was not unexpected, but the bad news got worse Tuesday when we found out the Administration’s new standard for interpreting which waters deserve protection: an opinion by Justice Antonin Scalia in the 2006 Rapanos case proposing a standard that a majority of the Supreme Court deemed too narrow.

This is setting the bar very low.

Here’s what anglers need to know: For many years, the Clean Water Act was interpreted by the EPA and Republican and Democratic administrations alike as protecting not only permanently flowing “perennial” streams, but also the 60 percent of stream miles in the United States that don’t flow year-round. These so-called “intermittent and ephemeral” streams—which characterize the majority of waters in the West—often provide critical trout spawning habitat, and they are the essential clean water sources that flow downstream into our watersheds and community water supplies.

Then a couple of Supreme Court opinions in the early 2000s muddied the waters, casting doubt on exactly which waters were jurisdictional and protected from polluters and developers. The Court asked questions, but did not provide answers.  Instead the Court urged the agencies to establish a new rule to try to settle the jurisdictional issue.  The Obama administration took up the challenge,  took millions of public comments and spent years crafting the Clean Water Rule, unveiled in 2015, to clarify which waters were jurisdictional. Those CWR guidelines reaffirmed that protecting seasonal streams and wetlands was critical to ensuring clean water and watershed health.

Colorado is a good example of the importance of seasonal streams in the West. Check out this map:


Justice Scalia’s standard—which he outlined in a Supreme Court opinion rejected by a majority of his fellow justices—would have limited CWA jurisdiction to perennial waterways, those that exhibit relatively permanent flows (or surface area, in the case of lakes) as well as wetlands directly connected by surface flows to larger water bodies. This map drawn from Colorado Division of Wildlife GIS data illustrates what that standard would protect or not protect in Colorado.  The red lines reflect stream miles in the state that are not perennial.  The blue lines show the perennial waterbodies. 

As you can see, most of the map is red—and that’s what is at stake. Roughly 68 percent of Colorado stream miles don’t flow year-round and would lose federal protection if the narrow standard prevails.

The President’s Executive Order starts a long process to rescind and replace the Clean Water Rule, and it is hard to predict the outcome.  But if it the narrower approach stands, the new rule could gut our nation’s clean water protections and leave thousands of miles of streams vulnerable to pollution and unregulated dredge-and-fill operations. That’s why TU and other sportsmen’s groups strongly oppose this order—read TU CEO Chris Wood’s statement.

Any way you look at it, the President Trump’s Executive Order faces a long fight. The Administration might find that scrapping the seasonal stream protections is harder than they thought, given that, by law, the regulatory changes to the Clean Water Rule must go through a rule-making process and meet rigorous scientific standards of evidence.

As Colorado Trout Unlimited executive director David Nickum pointed out, “President Trump’s executive order disregards the rule of law by proposing consideration of a standard that was rejected by a majority of the U.S. Supreme Court, and it disregards the laws of nature by pretending that downstream rivers can be protected without protecting their upstream sources. “

There’s a whole lot of disregard in this ill-conceived action, and Trout Unlimited and other sportsmen groups are gearing up to make their voices heard.

Our home waters are at risk. It’s time for anglers and sportsmen to stand and fight for them. Go to TU’s advocacy center to send a message to the Administration: We’re not going backward on clean water.

— Randy Scholfield



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