Waters in Jeopardy

When it comes to waterways, it’s all connected.

The Chesapeake Bay receives half of its water from an intricate network of hundreds of thousands of creeks, headwater streams, rivers, and 1.5 million acres of wetlands—exactly the kind of essential waterways the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers recently stripped of federal protections. 

Science shows us that when it comes to waterbodies—particularly in complex watersheds like the Chesapeake Bay—everything is connected. Wetlands and tributary streams, including ephemeral streams that only contain water during or after rainfall, all ultimately connect to larger waterbodies and play an important role in the health of our watershed. 

The Environmental Protection Agency’s 2015 Connectivity Report—issued by the agency’s Office of Research and based upon a review of over 1,200 peer-reviewed scientific publications—made clear the value of non-navigable tributaries, non-tidal wetlands like marshes and swamps, and ephemeral streams for downstream water quality. They provide numerous benefits, including:

  • Trapping polluted runoff, which helps slow the flow of nutrients, sediments, and chemical contaminants into our water;
  • Providing habitat to hundreds of fish, birds, and mammals; 
  • Soaking up storm surges and reducing flooding—functions that are even more important as the region deals with the effects of climate change.

These streams and wetlands are already threatened by development, invasive species, and sea level rise caused by climate change. In fact, the protection and restoration of wetlands is such a critical component to restoring the Bay that signatories to the 2014 Chesapeake Bay Watershed Agreement (including EPA and the U.S. Army Corps of Engineers) committed to creating or re-establishing 85,000 acres of wetlands and improving an additional 150,000 acres of degraded wetlands by 2025.

The Repeal and Replacement of the 2015 Clean Water Rule  

But instead of protecting wetlands and streams, in 2017, the EPA and the U.S. Army Corps of Engineers announced a two-step plan to repeal and replace the 2015 Clean Water Rule. 

The 2015 Clean Water Rule protected waterbodies based on the hydrological connections key to protecting downstream water quality. It was based on the best available science and developed after the thoughtful consideration of over one million public comments. 

The rule clarified what types of wetlands were protected by the federal Clean Water Act and required permits to protect them from discharges of wastewater and stormwater as well as from being dredged or filled in by construction projects. It made clear the Clean Water Act covers not only traditional “navigable waters” like large rivers, but also waterways like ephemeral streams and non-adjacent wetlands (those with no surface connection to a traditionally navigable water) that require protection in order to “restore and maintain the chemical, physical, or biological integrity of traditional navigable waters.” In other words, it recognized that protecting small streams and wetlands, as well as unique Bay waters called Delmarva Bays and pocosins that are made up of thick, shrubby areas, from pollution is essential to protect rivers, lakes, bays, and coastal waters downstream.  

In contrast, this administration’s rule, titled the Navigable Waters Protection Rule, undermines the Clean Water Act and significantly narrows the scope of what will be protected. Ephemeral streams, which are streams that only run when it rains, are no longer protected even though many headwater streams, or streams where rivers begin, are classified as ephemeral streams. 

Non-adjacent wetlands are also not protected under the new regulations. Under this rule, in order to be covered by the Clean Water Act, wetlands must now have a surface water connection to a water body covered under the regulations. Many wetlands impact downstream water quality, even without a direct surface water connection, through groundwater and other connections like sediment transportation and movement of plants and animals. As a result, approximately 50 percent of the country’s wetlands are no longer protected by federal regulations. Unfortunately, because the rule is so convoluted and the administration did not thoughtfully evaluate the impacts of these changes, we can’t quantify exactly how many miles of streams and wetlands will be affected in the Bay watershed.

The new rule also impacts waters and wetlands that cross state borders. These interstate waterways are now no longer automatically protected—they have to meet the criteria of the rule on their own to be protected. 

What does this mean for the Chesapeake Bay? 

Without consistent federal protection under the Clean Water Act, thousands of miles of ephemeral streams and wetlands are at risk of destruction. The states that do not have separate state clean water laws that protect these types of features in the Bay watershed, such as Delaware, will be hit the hardest. It is estimated that almost 200,000 acres of wetlands are vulnerable to destruction in Delaware alone. Even states like Maryland, Pennsylvania, and Virginia, will feel impacts. Each of these state programs has weaknesses that will be exposed without the backing of an appropriate definition of Waters of the United States, and lack of protections upstream will, of course, lead to problems downstream in the Bay. 

By repealing the 2015 Clean Water Rule and replacing it with the weakened Navigable Waters Protection Rule, a polluter would no longer need a permit to release pollutants into ephemeral streams or to dredge and fill non-adjacent wetlands. The permitting provisions of the Clean Water Act are key to achieving the goals of the Chesapeake Clean Water Blueprint, and the Navigable Waters Protection Rule reduces the number of water bodies protected by the permitting sections of the Act. As a result, the area of the watershed covered by discharge permits will be greatly reduced, leading to more harmful pollution entering the Bay and its tributaries, impacting the success of the Blueprint and potentially leading to a backslide on the progress we’ve made to date.

This is bad for the Bay and bad for those that live, work, and recreate in the watershed. A restored bay is estimated to provide $22.5 billion annually in economic benefits to the region. The administration’s weakening of the Clean Water Act under the Navigable Waters Protection Rule puts these economic, recreational, and aesthetic benefits at risk. 

CBF is taking a stand 

In opposition to the agencies’ plans to repeal and replace the 2015 Clean Water Rule, CBF engaged in the public regulatory process by submitting several sets of technical comments on the Administration’s two-step plan. Over 2,000 of our own members also submitted comments, an incredibly important demonstration of public concern. 

The unravelling of Clean Water Act protections for streams and wetlands significantly threatens the health of the Chesapeake Bay watershed. These regulatory changes reduce the scope of waters protected under the Clean Water Act, which will impact the achievability of the Chesapeake Clean Water Blueprint and degrade local water quality. Fundamentally, the agencies rejected the sound science and legal precedent that went into the development of the Clean Water Rule. 

That is why CBF and our partner, ShoreRivers, are challenging the repeal of the Clean Water Rule and its replacement with the Navigable Waters Protection Rule in court. CBF intends to show how the agencies arbitrarily repealed the Clean Water Rule, and how the Navigable Waters Protection Rule adopts an interpretation of the Clean Water Act that runs far afield of Supreme Court precedent and the purpose of the Clean Water Act.

We can’t stand by and let the Clean Water Act be decimated and we must protect the Bay. Visit our active litigation cases for updates on these cases and ways you can help fight these regulatory rollbacks

Denise Stranko, Federal Legislative and Policy Manager; Brittany Wright, Litigation Staff Attorney

Issues in this Post

Advocate   Federal Regulations   Litigate  




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