Cape Cod Times
By Doug Fraser
Posted Jan 24, 2020 at 9:14 PM
Cape seen as protected from weakening of Clean Water Act
The Trump administration and the Environmental Protection Agency unveiled a new Clean Water Act rule this week that removed many Obama administration protections of streams, wetlands and other water bodies that don’t connect to a river, lake or ocean by surface water flow.
The new rule could roll back protections for as much as 60% of the nation’s waterways and wetlands and increase nutrient and fertilizer flow and the infiltration of chemicals and pesticides into rivers, lakes, bays and water supplies, according to clean water advocates and scientists.
Environmentalists and others say the new regulations are not supported by science, will likely result in litigation and could severely reduce the effectiveness of the landmark Clean Water Act.
While Massachusetts and other states in the Northeast that have strong regulations to protect water and wetlands will be largely unaffected, scientists and environmental advocates worry about the degree of harm to large areas of the country with no such protections.
“The federal government remains committed to working with all states, localities, and tribes to enhance their capacity to regulate, protect and restore their waters,” the EPA said in an emailed statement in response to a request for comment.
“I think it is very well-established science that water flows through watersheds in ways that aren’t always on the surface,” said Christopher Neill, a senior scientist at the Woods Hole Research Center who sits on the board of directors of the Buzzards Bay Coalition and the Coonamessett River Trust.
Neill said that’s exactly what happens on the Cape, where over half the water collecting in the region’s rivers and entering our estuaries from land comes through groundwater seeping in along the shoreline. Features like small kettle hole ponds, cedar swamps and vernal pools would be unprotected under the new federal rule, although they retain protected status under state regulations.
In 2015, President Barack Obama was faced with U.S. Supreme Court rulings in 2001 and 2006 that cut out water bodies not fed by surface water and maintained restricted safeguards only to navigable waterways, rivers, lakes, streams and any adjacent wetland. But definitive scientific research found that water bodies connected by groundwater to larger water bodies were critical to the Clean Water Act, the guiding principal of which is to “restore and maintain the chemical, physical and biological integrity of our Nation’s waters.”
Neill said the vast majority of a water system — a network of large channels connected to progressively smaller ones — is in the smallest channels, which would no longer be protected under the new rule.
“Those are in close contact with the land and so those are collecting the runoff from the land and diverting it into these larger water bodies,” he said.
H. Curtis Spalding, the former EPA Region 1 (Northeast) regional administrator, said the 2015 Clean Water Act rule took an important step to bring science and the law back in line by including wetlands, small streams and other water bodies not connected or adjacent to surface waters as protected features.
It was something that ranchers, farmers, mining, oil and gas production companies, the pesticide and fertilizer industry, golf course owners and others opposed as expensive and bureaucratic. Many in those industries praised the Trump administration’s decision this week.
But the administration’s own scientific advisers said the new rule was not supported by science. In an advisory from October, the EPA Science Advisory Board found the rollback of protections in the new rule “departs from established science” and does not support the objectives of the Clean Water Act. They said the 2015 rule “found a sound scientific basis for the inclusion of these wetlands.”
“I don’t think anyone ever saw this kind of pullback,” Spalding said.
Removing safeguards from such a large class of water bodies that have scientifically been shown to be linked to major waterways and water sources went way beyond reversing an Obama-era rule. It could, once again, allow areas that are only occasionally wet but are linked to major water bodies through groundwater to have fewer restrictions on industrial land use. It would also be easier to fill in wetlands.
“Putting chemicals into ephemeral areas or wetlands, or along agriculture ditches or other areas that connect with groundwater does endanger the waters of the U.S., the larger water bodies where we get our drinking water,” Neill said.
It also sets back efforts at curtailing nitrogen pollution from wastewater, farm fertilizers and animal waste that have helped create a huge dead zone in the Gulf of Mexico near the mouth of the Mississippi River, and water quality degradation in the Chesapeake Bay.
Reducing standards so that treatment will not be required and leaving the wetlands that can buffer larger water bodies by absorbing contaminants unprotected is a “double whammy,” said Andrew Gottlieb, executive director of the Association to Preserve Cape Cod.
“This is going to add significantly to the burden of these systems,” Gottlieb said. “It will cut significantly into efforts to reduce the dead zone.”
“It’s a loss for all of us,” Spaulding said. “We are all connected by water quality across the country. We need protection of the wetland system everywhere.”
Massachusetts, along with many states in the Northeast, has water and wetland regulations that are as strong as, if not stronger than, the federal laws.
“For the Northeast, the Obama rule (in 2015) was not a major issue, in large part because the states, the Army Corps of Engineers and the EPA had been working for years on integrating state and federal wetland rules,” Spalding said. “Protection for the Northeast for wetlands was about as comprehensive as it can be.”
“It appears that the proposed rule change to the Clean Water Rule will have little impact on Cape Cod,” said Kristy Senatori, executive director of the Cape Cod Commission.
Senatori also pointed out that the regional commission’s wetland definition of protected water bodies is even broader than the state’s wetlands protection act “so projects we review are held to an even higher standard regarding wetlands protection.”
But state officials have expressed concerns to the EPA that the new federal rule may ultimately result in poorer water quality in areas where state and federal agencies both have jurisdiction.
In comments on the first proposal of a new rule in 2017, the state Department of Environmental Protection particularly noted that it would affect the issuance of state and federal Army Corps permits for disposal of dredged materials in U.S. waters, making the permit process confusing and more bureaucratic for applicants. They also worried that state jurisdiction could be curtailed in some areas, “thus impeding the Commonwealth’s oversight and protection of its environmental resources.”
Follow Doug Fraser on Twitter: @dougfrasercct.