Two Wisconsin tribes were among five who sued to block the rule enacted in 2020.
Tribal communities in Wisconsin and around the country secured a win recently when a federal judge overturned a rule put in place by former President Donald Trump that rolled back regulations on water pollution.
Judge Rosemary Márquez of the US District Court in Arizona in an Aug. 30 ruling struck down Trump’s Navigable Waters Protection Rule, saying it had “fundamental and substantial flaws” and that allowing it to remain in place posed a risk of “serious environmental harm.”
Once the rule went into effect in January 2020, it removed millions of streams and wetlands from protections offered by the Clean Water Act, according to environmental law firm Earthjustice. Trump also repealed a rule put in place by former President Barack Obama that increased federal water protection.
Trump’s rule change removed a permitting process that required developers, miners, and farmers to ensure their projects on the affected waters didn’t violate the Clean Water Act, said Earthjustice attorney Janette Brimmer, who represented the five tribes that sued to overturn the rule.
In June, the Biden administration said the rule led to a 25% drop in Clean Water Act enforcement.
“[Trump’s rule was] not scientifically sound and incredibly shortsighted,” Brimmer said.
The Menominee Indian Tribe of Wisconsin and Bad River Band of Lake Superior Chippewa were among the tribes who filed the lawsuit. In a court filing, they said the protections rollback endangered their hunting, fishing, and gathering opportunities that are key to preserving spiritual and cultural traditions.
For the Bad River Band, the reduced protections posed a risk to hundreds of miles of water and thousands of acres of wetlands on their reservation and ceded territory as discussions and protests continue over a controversial Enbridge oil pipeline project that could bring more oil to Wisconsin.
Meanwhile, the Menominee Tribe said the Menominee and Wolf rivers could face pollution and ecological destruction from the proposed Back 40 Mine that the tribe vehemently opposes.
Many tribal waters of concern are downstream from potential project locations, putting them directly in harm’s way, according to the filing.
For now, Márquez’s ruling offers some relief, but the Biden administration will now have to come up with a new rule. Brimmer said Earthjustice and the tribes hope the new rule “ensure[s] the broadest possible protections for clean water in the United States,” but she acknowledged it could be a long-term battle.
“Frankly, I don’t expect the controversy to end,” Brimmer said. “The forces that don’t like regulation are going to be right out there, but we and our clients will be right there to protect the Clean Water Act as well.”