By: Jeremy Cox and Timothy B. Wheeler, BayJournal.com
Several Chesapeake Bay states and watershed environmental groups have gone to court challenging the Trump administration’s weakening of federal protections for wetlands and streams.
The Chesapeake Bay Foundation and ShoreRivers kicked off the legal onslaught Monday, April 27, by filing a pair of lawsuits in U.S. District Court in Baltimore.
The Bay gets much of its fresh water, they argue, from “an intricate network” of creeks, headwater streams and rivers and from 1.5 million acres of wetlands, many of which would lose federal and in some case state protections under the rule. As a result, two of the groups contend, the rule will undermine long-running federal-state efforts to restore the Bay.
“The Final Rule will profoundly impact the Chesapeake Bay; the nation’s largest estuary and a national treasure,” assert the Chesapeake Bay Foundation and ShoreRivers in their lawsuits filed Monday, April 27, in U.S. District Court in Baltimore.
The Southern Environmental Law Center, based in Charlottesville, VA, filed its own legal challenge Wednesday, April 29, in federal court in South Carolina. It argues, in part, that the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, which share legal authority to regulate the disturbance of wetlands and waterways, failed to explain or fully evaluate the effects of their decision.
“You don’t have to be a rocket scientist to know that pollution dumped upstream flows downstream, but the agencies shut their eyes to science and common sense, said Blan Holman, head of SELC’s Clean Water Defense Initiative.
SELC said it is representing a number of groups, including the Friends of the Rappahannock and James River Association.
And on May 1, a coalition of 19 states and localities, including Maryland, Virginia, New York and the District of Columbia, filed yet another suit in federal court in California seeking to have the new rule set aside.
“Repeated efforts by the EPA to weaken water quality protections threaten the health of our rivers, streams, and lakes, potentially rolling back decades of hard-fought progress in restoring the health of the Chesapeake Bay,” Maryland Attorney General Brian Frosh said.
The lawsuits are part of a widely anticipated nationwide pushback against the administration’s revision, which was finalized April 21. A number of states and environmental groups already have filed suits challenging the repeal of the Obama Clean Water rule, which took place last fall.
The controversy centers on a 20-year debate over how to define which waterways are federally protected as “waters of the United States.”
Few contest the law’s protections for “navigable waters” and those connected to them. But courts have been divided over how far upstream those protections go.
In 2015, the Obama administration broadened the federal government’s regulatory reach to include wetlands visibly cut off from navigable waters as well as “ephemeral” streams that only flow when it rains or snow melts.
Responding to complaints by farm groups, home builders and energy companies that the Obama rule went too far, the Trump administration repealed and replaced it, removing federal protections from an estimated 18% of streams and more than half of the nation’s wetlands.
The environmental groups contend that the EPA and Corps provided no justification for rejecting the scientific “consensus” in support of the Obama era rule and failed to consider the environmental impacts of their actions. They also argue that the new rule runs counter to the letter and intent of the Clean Water Act, as well as of court rulings in prior related cases.
“It’s just going to shrink the number of water bodies subject to permitting under the Clean Water Act,” said Brittany Wright, a staff attorney with the Bay Foundation. If landowners and developers no longer need a permit to degrade water bodies, there’ll be no way to require any restoration or mitigation of the ecological harm.
The Bay Foundation and ShoreRivers filed two lawsuits, one challenging the repeal of the Obama regulation and the other seeking to overturn the new one. Jon Mueller, the Bay Foundation’s vice president for litigation, said the groups are pursuing separate legal actions because the agencies relied on different sets of comments and information for each decision.
The rule’s opponents are encouraged by a recent decision by the U.S. Supreme Court in another Clean Water Act dispute.
The court ruled 6–3 on April 23 in favor of environmental groups that had challenged a Hawaii wastewater treatment plant’s discharges that, the litigants argued, indirectly polluted the ocean.
The majority decision in the case, County of Maui v. Hawaii Wildlife Fund, requires regulators to find that pollution getting into streams and rivers via ground water is the “functional equivalent” of a regulated discharge under the Clean Water Act. It proposes weighing seven factors, including the distance from the source of the pollution to the water body and the time it took for the pollution to cover that distance.
Jon Mueller, the Bay Foundation’s vice president for litigation, said that the Supreme Court charted a middle course between the arguments of environmental groups and of the state of Hawaii and the Trump administration, leaving it to lower courts to decide disputes on a case by case basis.
“This isn’t a one size fits all deal,” Mueller said. Now, though, he said, there may be opportunities to require the cleanup of pollution reaching water bodies via ground water.
So far, environmental groups have failed in court when trying to hold power companies responsible for coal ash contaminants seeping from containment lagoons into nearby waterways.
SELC and the Sierra Club, for instance, were rebuffed in 2018 when a federal appeals court ruled that coal ash impoundments at a shuttered Dominion Energy power plant didn’t constitute a regulated “point source” into the Elizabeth River.
Mueller said the Supreme Court opinion may now offer grounds for asking the federal appeals court to reconsider its decision in that case.
Bob Percival, director of the University of Maryland’s environmental law program, said the Hawaii case was a clear win for environmentalists. But the legal justification employed by certain justices casts doubt on the prospect of the court siding with environmentalists again in the Clean Water Rule cases, he said.
Although Justice Brett Kavanaugh sided with the majority in the Hawaii case, he wrote a separate opinion that drew heavily from the late Justice Antonin Scalia’s arguments in an earlier wetlands case. Scalia’s reasoning in the 2006 case was used by the Trump administration to justify its rollback.
Chief Justice John Roberts, the other conservative who joined the liberal justices in the Hawaii decision, could also wind up backing the Trump administration’s move if, and when, its challenges come before the court, Percival said.
“While I think the Maui decision was great, I don’t think it necessarily implies that they would be hostile to the Trump administration’s rule,” he added.