Monday is the deadline for the public to weigh in on a potential rule change by the Environmental Protection Agency and U.S. Army Corps of Engineers that could impact which water bodies may be protected from pollution.
Tribes are among key stakeholders seeking an extension to comment.
WOTUS — or the waters of the United States — is a definition guiding which resources fall under the Clean Water Act, a federal law governing the discharge of pollutants into waterways like rivers, lakes and streams.
But as currently written, the proposed EPA rule would narrow the 1972 landmark law’s enforcement with estimates suggesting that 80% of the nation’s wetlands could be at risk. While wetlands make up less than 1% of the Grand Canyon State’s landscape, this fragile ecosystem covers more than 116 million acres nationwide.
“I think it’s a big picture concern for everyone, really,” said Daniel Cordalis, who is Diné and runs the Tribal Water Institute at the nonprofit Native American Rights Fund. “I think most tribes who want clean water — or the ability to make sure that water is usable — are probably going to write in opposition to kind of what the rule stands for.”
While tribes can regulate waters on their reservations, they lack jurisdiction elsewhere.
“You have these problems that originate off-reservation. Tribes can’t look to the EPA anymore,” added Cordalis. “And arguably, the federal government has to protect these tribal resources, but who’s going to do that?”
Some states are stepping up, like Colorado, New Mexico and Arizona.
“We try very hard to ensure that we’re coordinating with our neighbors — tribes or states or country on our southern border — to make sure that we each know what each other is doing,” said Trevor Baggiore, water quality division director at the Arizona Department of Environmental Quality.
State lawmakers and Republican Gov. Doug Ducey granted ADEQ — or the Arizona Department of Environmental Quality – greater authority in 2021 for the agency to draft the Surface Water Protection Program, enacted in 2023.
“The Clean Water Act and the state Surface Water Protection Program are companion regulations where [WOTUS] apply,” added Baggiore. “Hopefully this new rule will add some clarity, as long as they are able to provide scientific tools to help us determine what’s regulated and what’s not.”
Many groups including the National Tribal Water Council, Association of Clean Water Administrators and Environmental Council of the States are all asking for an additional 30 days to reply.
This rule, published in mid-November, kicked off a 45-day comment period.
“Everybody on both sides of the rule is really frustrated about the timing and lack of tribal consultation,” said Cordalis. “Our governments are shut down for like two weeks because of the holiday, and we don’t have a chance to talk to anyone.”
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