The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers reversed 2015 provisions of the Clean Water Act that clarified protections for wetlands and streams as “waters of the United States” and provided a transparency tool that gave states the ability to gather information on the impacts of federally permitted projects.
The new ruling repeals the 2015 rule in its entirety and restores the regulatory text that existed prior to the 2015 rule.
The recent change has some environmental advocates, scientists, local agencies and lawmakers concerned about the future of water in the state and the region.
“It is a detriment to protecting water quality,” said Rosa Hance, chair of the Sierra Club of Southern Maryland, who is concerned with the ambiguity of the new regulations. “The streams are no longer necessarily protected under the Clean Water Act. Under the prior administration, it was clearly defined what waters were protected.”
Hance said it is now on a case-by-case basis, which may lead to a lot of confusion and lawsuits.
She said the new regulations would also limit states’ ability to request information on the negative effects of proposed projects unless it is a “point source discharge.”
The Sierra Club defines point source discharges as coming from “any discernible, confined and discrete conveyance … from which pollutants are or may be discharged,” or in layman’s terms, water or waste discharged from a pipe, such as at a factory or sewage treatment plant.
“The Trump Administration’s blatant disregard for our environment ought to concern every Marylander. The finalization of the roll back of the Waters of the United States rule is yet another example of President Trump’s continued efforts to weaken public health safeguards and undermine environmental protections,” House Majority Leader Rep. Steny Hoyer (D-Md., 5th) said in a statement to the Maryland Independent. Hoyer urged the administration to work with Congressional Democrats to improve the health of U.S. waterways.
“Water quality will not be harmed as EPA and the Army repeal the unlawful Obama Administration WOTUS rule and restore longstanding and familiar Clean Water Act regulations,” EPA spokesperson Andrea Woods wrote in an email to the Maryland Independent.
The final Step 1 rule will end the “regulatory patchwork” that included implementing two competing Clean Water Act regulations, which created uncertainty across the United States, according to Woods.
“These pre-2015 rule regulations are currently being implemented in 27 states,” according to Woods.
“Maryland’s clean water laws will remain strong but we are concerned the loss of a federal safety net for wetlands and waters upstream of us will threaten our Chesapeake Bay progress and put Maryland communities at greater risk of flooding,” Maryland Department of the Environment spokesperson Jay Apperson confirmed with the Maryland Independent.
Lora Harris, a professor at the University of Maryland Center for Environmental Science’s Chesapeake Biological Laboratory in Solomons, is hopeful the changes to the definition of WOTUS will not supersede state regulations, as the new regulations most affect non-tidal ephemeral streams and wetlands.
“These are streams that only ‘run’ or connect to the main stream network when the water table is high and wetlands that aren’t directly connected to a tidal tributary,” explained Harris, who studies the water quality of tidal creeks at CBL. “These are often around springs and seeps and there are a number of them” in the region.
Harris also said the rule changes impact stormwater control features and agricultural ditches, at a time when the state is seeing gains in best management practices being employed to reduce nutrient runoff from fields into local waters.
Lisa Wainger, Harris’s colleague and CBL professor of environmental economics, concurred, adding that small, intermittent/ephemeral streams and other “seemingly” unconnected water bodies serve an important role in holding stormwater and preventing pollution from reaching streams and rivers.
“These ‘natural stormwater devices’ are an important complement to other engineering activities that we undertake to protect larger water bodies and communities in low-lying areas,” Wainger said. “If this loss of legal protection causes people to fill in or cover over these land features, we will have to pay more to provide those same water regulation services.”
According to Woods, provisions regulating pesticides and nutrient run-off from agriculture were not removed or lessened in the rule change.
“For the Chesapeake Bay, the challenge is that this may apply to parts of our large watershed that are upstream in West Virginia, as well as Delaware and D.C., that rely on federal regulations without state regs like we have here,” Harris said, noting it could make it harder to enforce the total maximum daily load for the bay. The TMDL calls for all pollution control measures needed to fully restore the bay and its tidal rivers to be in place by 2025.
Harris is hopeful that all of the partner states in the Chesapeake Bay Agreement will pitch in to make a difference in pollutant loads.
Concern about whether the recent rule change would allow industrial companies, like NRG Energy’s Chalk Point Generating Station, discharge more pollutants in local waters was quickly laid to rest.
“We don’t expect WOTUS to come into play as relating to the coal plant in Southern Maryland, particularly Chalk Point,” said Patrick Grenter, a senior campaign representative with the national Sierra Club. “We do expect an additional rollback as it relates to protections against dumping toxic chemicals like arsenic, mercury, and selenium, potentially as soon as this week.”
Hance said the roll back of the 2015 rule does not seem coincidental to her as there have been numerous Obama-era environmental provisions that Trump has rolled back, to include regulations on air pollution and emissions.
As for rolling back the definition of clean water, Hance asks why redefine WOTUS to limit the health and safety of that water?
“Can you drink? Is it safe to swim in? Can your kids roll around in it?” Hance asked rhetorically. “That’s what I think about: Is it clean?”