Some Chesapeake Bay States Fighting EPA Clean Water Rule Rollback

WASHINGTON (Oct. 11, 2019)—The Environmental Protection Agency revoked two regulations last month dealing with clean water and air that present conflicting positions from the Trump Administration over the role states should play in protecting their own natural resources.

The first came in the removal of an Obama-era rule that sought to protect streams, lakes, wetlands and other bodies of water from pollution, a move state officials say threatens the Chesapeake Bay.

"(The Trump Administration's) determination to weaken the Clean Water Act threatens to undo our hard-won progress cleaning up (waterways) in Maryland and across the nation," Maryland Attorney General Brian Frosh said in a statement. "We plan to vigorously challenge this latest unlawful rollback."

The 2015 Clean Water Rule expanded the definition of "navigable" bodies of water that fall under federal jurisdiction. It was a decision that Trump EPA Administrator Andrew Wheeler called "an egregious power grab" at a Sept. 12 press conference announcing the repeal.

"When President Trump took office he immediately set into motion a process to remove and replace regulations that were stifling economic development," he said. "The Obama administration's 2015 'Waters of the U.S.' definition was at the top of the list."

A replacement to the rule has not yet been announced.

Under the Clean Water Act, it is illegal to pollute in U.S. bodies of water without a permit. Under the 2015 rule, the Obama administration, working in collaboration with the Army Corps of Engineers, adopted the new rule to clarify which waterways were defined as federal, a change that impacted about 3 percent of the country's waters.

For farming and ranching advocates, however, the rule was a burdensome overreach that significantly raised the legal risks of pollution. According to the American Farm Bureau, the 2015 definition of "waters of the United States" made it unclear whether extremely minor bodies of water like ditches or streams could be subject to federal enforcement.

"We're all supportive of water quality," said Don Parrish, AFB senior director of congressional relations. "But farmers deserve clarity."

Environmental advocates say the rollback won't have a major impact within Maryland, as the state has stronger water protections than the federal government to begin with. However, pollution could migrate from states like Delaware and West Virginia that follow federal regulations, according to Maryland Environment Secretary Ben Grumbles.

"The loss of a federal safety net for wetlands and waters upstream of us will threaten our Chesapeake Bay progress," Grumbles said in a statement.

A preliminary analysis of the impacts of revoking the Obama rule completed by the Maryland Department of the Environment showed that up to 2.3 million pounds of nitrogen and 57,000 pounds of phosphorous could enter the Chesapeake Bay.

According to Jon Mueller, the vice president for litigation at the Chesapeake Bay Foundation, cooperative state efforts like preventing pollution in the Bay necessitate strong federal protections in states with less stringent water quality rules.

"Even if you have strong state laws, you can only protect things within your state for the most part," Mueller said.

Mueller added that EPA regulations create a baseline floor for protection in most states, and "when that floor moves lower, the protections in those states that follow federal law are removed."

Both the Delaware Department of Natural Resources and Environmental Control and the Pennsylvania Department of Environmental Protection denounced the rollback, citing water quality concerns.

The EPA noted that expanding federal jurisdiction over clean water "failed to adequately recognize, preserve, and protect the primary responsibilities and rights of states to manage their own land and water resources."

But the following week, the EPA revoked a rule that seemingly contradicts this stance. On Sept. 17, the EPA moved to take away California's authority to set its own emission standards, which 13 other states, including Maryland, follow.

Frosh subsequently joined 25 other attorneys general in a lawsuit challenging the administration, arguing that the new regulation "fails to respect states' authority to protect public health and welfare."

Wheeler said at a press conference that the administration would be moving forward with a new national fuel economy and greenhouse emission standard for cars.

"We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation," he said.

The Trump Administration has scaled back more than 50 environmental regulations since the president took office, according to The New York Times. Dozens more rollbacks are in the works.

The EPA is considering a change to Section 401 of the Clean Water Act, a provision that allows individual states to block construction of interstate projects like pipelines or dams that damage water quality. Maryland has opposed construction of the Potomac Pipeline, which would bring natural gas to West Virginia from Pennsylvania and cross through Maryland public land.

Environmentalists say the proposed adjustment, which is under a public comment period, limits the time states have to assess projects for potential impacts.

"It's not being done with the public's interest in mind, it's not being done with the states' interest in mind," said Anne Havemann, general counsel for the Chesapeake Climate Action Network. "It's directly rolling back what the states want to do and are trying to do."

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