Federal judge strikes down Trump-era water rule

An Arizona judge has tossed out a controversial Trump Administration rule that withdrew protections for vital streams and wetlands in Wisconsin and across the country. Known as the “Dirty Water Rule,” the policy dramatically restricted which waterways are safeguarded under the Clean Water Act, putting an estimated 3.5 million acres of Wisconsin wetlands at risk.

Along with other conservation groups, Clean Wisconsin took the Trump Administration to federal court in 2020 to challenge the rule as both insufficient to protect Wisconsin’s waters and illegal under the federal Clean Water Act. In June, the Biden Administration announced plans replace the policy with a broader definition of protected waters of the U.S. (WOTUS), but the old rule still remained in place until Monday’s order from the U.S. District Court in Arizona.

“Why leave the bad rule, which the EPA now agrees is bad, in place? This judge said that if you’re going to remand the case back to the EPA, you have to vacate it in the meantime,” explains Evan Feinauer, staff attorney for Clean Wisconsin. “So the rule is vacated everywhere going forward, including here in Wisconsin.”

Feinauer notes that the case in Arizona shows the importance of filing multiple challenges to harmful policies.

“This was a parallel case that we weren’t a party to, but it still impacts Wisconsin. Now more of our wetlands and waterways are protected than they would have been. This is why Clean Wisconsin works with other environmental groups across the country to file challenges in multiple places,” he says.

The Arizona case was filed by environmental groups and American Indian tribes represented by Earthjustice, including the Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O’Odham Nation, and Bad River Band of Lake Superior Chippewa tribes in Wisconsin.

Even with the court win, federal protections for these waterways aren’t assured. Feinauer expects Monday’s decision to be appealed and the new Biden rule, when it does come, to face hurdles as well.

“The Biden rule will be challenged immediately,” he says. “Clean Wisconsin and our partners will be working once again to ensure that any new rule implementing the Clean Water Act will preserve and protect our waters. And we’ll fight to make sure it stays in place.”