Rollback leaves states to fend for large swaths of wetlands and streams
By Jeremy Cox & Timothy B. Wheeler, BayJournal.com
The Trump administration’s plans to remove federal oversight from some streams and wetlands will leave those waterways without protection in some of the Bay watershed states, while increasing the regulatory burden on others, officials and conservationists say.
The net result of the rule change, they say, will be another setback for the multi-state and federal effort to restore the Chesapeake Bay and the vast watershed it drains.
“When you take away the federal standard and leave that to the states to decide, then you’re going to get dramatically different protection in the states, and the Chesapeake is going to suffer,” said Geoff Gisler, attorney with the Southern Environmental Law Center.
In the Bay watershed, legal experts say, Maryland, Pennsylvania and Virginia have state laws and regulatory programs of their own that would — at least on paper — safeguard the wetlands and waterways being dropped under the new federal rule.
Those safety nets start to fray, though, in Delaware, New York and West Virginia.
Announcing the new rule at a National Association of Home Builders trade show on Jan. 23, U.S. Environmental Protection Agency Administrator Andrew Wheeler said the change would replace a broken bureaucratic system with “certainty and predictability.” The EPA insists that federal controls remain strong and “among the best in the world.”
Critics say that the removal of a federal arbiter opens wetland regulation to a hodgepodge of state-level protections. That could lead to more pollution running downstream from newly deregulated wetlands and streams.
“Not all waters end at state borders,” said Roger Adams, a top wetlands official with the Pennsylvania Department of Environmental Protection. The federal regulation had served as a “common denominator” that standardized the level of protection for interstate waters, he said. Now, he added, “There could be more disparity between us and our neighbors.”
Under the change, protections remain in place for the Chesapeake Bay, the permanent streams that feed into it and the wetlands bordering those waters. But it strips away protections for wetlands visibly cut off from navigable waterways, as well as “ephemeral” streams, which are dry most of the time and only get their water from rainfall or snowmelt.
The rulemaking reversed an Obama era rule that clearly included those water bodies under federal authority.
The federal government’s retrenchment comes as the Chesapeake Bay’s cleanup struggles to reach its 2025 cleanup goals and wetland restoration targets. Wetlands play a critical role in filtering nutrients, which have triggered oxygen-starved “dead zones” for decades.
According to various estimates, the region has lost half of its wetlands since colonial times. The state-federal Bay Program has sought to increase wetland acreage to both help clean the Bay and provide crucial habitat for species that depend on them. Since 2010, though, the program has only created or restored about 9,000 acres of wetlands, far short of its goal of 85,000 new acres by 2025.
“That number holds only assuming we don’t lose a whole bunch of wetlands,” said Amy Jacobs, formerly the lead scientist of Delaware’s wetlands assessment program. “Now that we’re at risk of losing wetlands, it will only make our job harder.”
Feds, deer disagree on definition
It doesn’t look like much, but the shallow grassy swale skirting Terraset Elementary School in suburban Reston, VA, marks one of the headwaters of Snakeden Branch, which empties into a tributary of the Potomac River.
The furrow in the ground gradually deepens as it wends its way downhill through a patch of woods. Though it is clear that it has carried water at some point, judging from the sand and debris in the channel, it’s bone-dry in late February. This is what scientists call an “ephemeral” stream.
“Every stream has these,’’ said Steve Moyer, a nearby resident and vice president of government relations for Trout Unlimited, the conservation-minded anglers’ group. “They’re really not that remarkable. But collectively, they do a lot of good.”
Nearly 80% of a river is typically made up of headwaters. Such off-and-on waterways drain more than 70% of the land area in a typical watershed. They also supply water to one-third of the U.S. population, according to 2009 information from the EPA.
Perhaps because it doesn’t regularly carry water, the dry streambed Moyer walked down doesn’t appear on Google Maps.
Still, he said, “we know they’re here.” So do browsing deer, which have left hoof prints in the sandy bed.
Biologists, ecologists and many other scientists warn that if those ephemeral streams and remote wetlands in the Bay watershed are damaged or destroyed, waters downstream will suffer.
“Generally, these waters are located in upland, headwater areas,” said Marla Stelk, executive director of Association of State Wetland Managers. “So, those resources are critical for the benefits they provide in terms of water filtration and pulling out nutrients like nitrogen and phosphorus before they reach the downstream drinking water systems.”
The Trump rule is expected to unleash a flurry of lawsuits once it’s published in the Federal Register later this year. At the heart of the legal issue is how to define “Waters of the United States,” the term employed by 1972’s Clean Water Act to describe all water bodies falling under federal oversight.
In response to a series of conflicting court rulings, the Obama administration sought to clarify the WOTUS definition. Its rule, finalized in 2015, outraged farmers, home builders and energy companies who contended it overly expanded the reach of the federal government. The new administration rule would significantly narrow the scope of federal oversight.
A 2017 presentation by the EPA and Army Corps of Engineers, the two federal agencies that regulate waterways, suggested that 18% of streams and just more than half of the nation’s wetlands would lose protection under the new rule. EPA leaders later walked back those estimates, saying that no accurate surveys exist that would quantify the scope.
It’s unclear how many streams and acres of wetlands would lose federal protection in the Chesapeake Bay’s 64,000-square-mile watershed.
Under the new interpretation, “the key is [the waterways] contribute surface water to a jurisdictional water during a typical year,” the EPA’s Mindy Eisenberg told listeners during a Feb. 13 webinar.
The agency’s own scientific advisory panel declared that the new definition “neglects established science.” Limiting protection to only certain surface waters ignores recent research showing how even remote wetlands and occasionally wet streams are connected to other water bodies through ground seepage, the panel said.
Farming interests and industry groups applauded the administration’s move.
“As a whole, the agricultural industry was asking for some clarity,” said Jamie Tiralla, a member of the Maryland Farm Bureau’s board and a livestock farmer in Calvert County. “The new rule does make it clearer for us.”
States are better at regulating at the local level, and Maryland’s wetlands program is proof of that, she said, adding that “this is an opportunity for other states to step up and look to Maryland at what we can achieve.”
Spencer Rowe, a wetlands consultant based near Ocean City, MD, said backers of the Obama era rule were asking too much of the Clean Water Act and its underlying constitutional authority. As the WOTUS definition kept expanding over the years, it became harder to legally justify protection of those newly added types of waters, he said.
“It needs to be based on a clear-eyed view of what’s going on” to avoid further litigation, Rowe said, echoing one of the EPA’s arguments for the change.
Abigail Jones, a lawyer with the environmental group PennFuture, said she and many others who supported the Obama administration’s rule believe that the Trump administration has not clarified anything.
“They have not created a bright line rule on what is or what is not a water of the United States,” Jones said. “A farmer cannot look [at his land] and know if that water running through his back field is ephemeral or intermittent. You’re still going to need to pay attorneys and experts whether you’re a farmer or a big developer or someone just looking at their backyard.”
Watershed protections lifted
There is no reliable inventory of the kinds of streams and wetlands that would be dropped from federal protection, experts say.
The authoritative U.S. Geological Survey National Hydrography Dataset maps only 5.8 miles of ephemeral streams in the Bay watershed, said Kurt Fesenmyer, a scientist at Trout Unlimited.
But the conservation group did its own “back-of-the-envelope” estimate, finding 111,000 miles of ephemeral streams in the watershed. The group estimates that 47% of them would lose protection under the new rule.
The proposed Atlantic Coast Pipeline, for example, would cross 23 tributaries to the headwaters of Back Creek, a wild brook trout stream in the Blue Ridge Mountains of Virginia. Five ephemeral streams would be left without federal protection, the group says, although they deliver water downstream into Back Creek after rainstorms.
States step into the void
With the federal government pulling back from regulating certain wetlands and streams, their protection falls to the states.
Overall, officials in Virginia, Maryland and Pennsylvania say they have laws and regulatory programs that will still protect their states’ waterways and wetlands. But in Delaware, West Virginia and New York, regulations range from less stringent to nonexistent.
Not to be overlooked: Wetlands on federal lands, which account for 7.8% of the Bay’s watershed, could lose protection in states that don’t have permitting authority over such properties, land use experts say.
Here’s a look at how each Bay-region state is affected:
Delaware is the only state in the mid-Atlantic without its own law to protect freshwater wetlands, so those losing federal oversight will be vulnerable to damage or loss.
Shawn Garvin, secretary of the Delaware Department of Natural Resources and Environmental Control, said his agency is considering reviving efforts to implement a state-level freshwater permitting program.
“We’re considering if that’s an effort we need to take another look at,” Garvin said. “We often describe wetlands as nature’s kidneys. It’s how Mother Nature addresses water quality.”
Marla Stelk, with the Association of State Wetland Managers, warned that Delaware is in danger of losing up to 20,000 acres of headwater protection under the new rule.
“The state is going to have to pick up the slack there,” she said. “There’s the potential those areas could be developed until Delaware steps up and gets its programs in place.”
Delaware is part of the Delmarva Peninsula, which is home to a unique water feature known as a Delmarva bay. There are nearly 5,000 of these inland shallow depressions scattered across the tri-state region, and many stand to lose federal protection because they are fed by rainwater alone.
Amy Jacobs, the former Delaware state biologist, tromped into the sodden center of one of the largest Delmarva bays recently. The 10-acre property is owned by her employer, The Nature Conservancy’s Maryland/DC chapter, but she said it represents what could be lost under the new rule: the chirp of chorus frogs, the deer footprints, the waving stalks of yellow-eyed grass and maidencane.
“I find it hard to believe there are any truly isolated wetlands,” Jacobs said. “Our water systems between the surface water and the shallow groundwater are intimately connected.”
Pennsylvania’s Clean Streams Law covers all surface waters, even those that appear to be cut off from navigable waterways. It also protects groundwater, which the federal government didn’t do, even before the new rule.
State and federal regulators regularly share information and cooperate in reviewing permit applications. So, practically speaking, there shouldn’t be any hiccups in the protection of waterways in Pennsylvania, said Andy Klinger, chief of the Pennsylvania Department of Environmental Protection’s wetlands encroachment and training division.
But federal regulation has also served as a backstop against states like Pennsylvania weakening their own laws and regulations, said Jones, the PennFuture attorney.
“We’ve seen bills recently that are trying to limit DEP’s authority to review permits, to hamstring them,” Jones said.
Virginia’s nontidal wetlands law, enacted in 2000, gives the state authority to regulate wetlands that lack a surface connection to navigable waterways. And ephemeral streams are covered as long as they flow often enough to create a high-water mark along their banks.
“The rollbacks of the federal position will not be evident here in Virginia,” said Dave Davis, Virginia Department of Environmental Quality’s wetlands program director.
Some environmentalists, though, worry whether the state will have the staff and resources to provide same level of protection.
Maryland officials say they have laws and programs to protect the waters dropped from federal oversight.
A Maryland Department of the Environment analysis, though, contends it could lead to more nutrient pollution flowing into the Bay from the Susquehanna River from upstream states just by the change in defining what wetlands would be federally protected. The report estimated it would yield an additional 2.3 million pounds of nitrogen per year and up to an additional 57,000 pounds of phosphorus per year.
Over 20 years, that pollution could cost Maryland $1 billion to treat, said Ben Grumbles, Maryland’s environment secretary.
Maryland officials also project that up to 36% of the Delaware wetlands that help reduce flooding and nutrient pollution in the Nanticoke River, which winds from Delaware through Maryland into the Bay, would be left unprotected.
The change also will pose “logistical challenges” and impose costs for the state because the state now reviews wetland and waterway permit applications jointly with the Corps of Engineers, Grumbles added.
A 2013 study by the Environmental Law Institute found that West Virginia law contains a broad definition of “waters of the state,” so that regulators there can require permits or approvals on a case-by-case basis for disturbance or the discharge of pollutants.
But Jim McElfish, senior attorney with the institute, said that West Virginia has not been routinely requiring state permits for activities affecting those wetlands and headwater streams that now may fall outside the new federal rule.
“There is the need for the state to say, ‘Yes, this time we’ll require an application and a permit from someone because we think it may affect our waters,’ and then to do so,” McElfish said.
Terry Fletcher, acting communications director for the West Virginia Department of Environmental Protection, said that the agency “will develop a path forward” once the final rule is published in the Federal Register.
New York only protects streams that are used for drinking water or designated clean enough for swimming. It regulates the disturbance of wetlands, but only those that are at least 12.4 acres in size — and only if they have been officially mapped.
Legislation moving through New York’s legislature would expand the stream protection to cover those waters that support fisheries or are clean enough for boating or wading. That measure recently passed the State Assembly. It still needs the approval of the Senate, but passage is considered likely, said Maureen Cunningham, clean water director with Environmental Advocates of New York.
Bills have also been introduced in the state legislature that would greatly expand protection to all wetlands of at least one acre. But lawmakers have yet to act on those, Cunningham said.
In the meantime, Gov. Andrew Cuomo has proposed regulating all wetlands larger than 12.4 acres, not just those identified on outdated maps. That alone would protect an additional 1 million acres, according to the governor’s office.