A rollback of the Waters of the United States (WOTUS) rule in the federal Clean Water Act was finalized by the Trump administration last month. And the move is causing concern locally among state officials and local environmental groups
Contributor Jon Hurdle caught up with representatives of both groups last week at the Delaware Wetlands conference last week on the Wilmington Riverfront – and outlines their reactions.
About 15,000 acres of Delaware’s freshwater wetlands are losing their federal protection under a controversial rollback of the Waters of the United States (WOTUS) rule that was finalized by the Trump administration last month, state officials said.
The rule change is expected to make it easier for developers to build houses in upland areas that drain into larger bodies of water, or that contain minor streams that may not flow year-round. The rollback would also allow farmers to cultivate areas that have until now required a user to show evidence of minimal environmental impact.
The rollback has been condemned by environmentalists as setting back improvements in water quality since passage of the landmark Clean Water Act in 1972, and as a giveaway to business interests at the expense of the environment.
"It will absolutely affect water quality because you are opening up impacts to streams. Even though it's up in the upper headwaters, it all drains down into the same place." - DNREC environmental scientist Alison Rogerson
In Delaware, the measure will create a regulatory void for the affected areas, and raises questions about whether the state should step in with its own regulations, or write new laws to protect those water sources, officials said.
“This rollback has taken wetland protection back to the 80s,” said Alison Rogerson, an environmental scientist at the Department of Natural Resources and Environmental Control, at the department’s annual wetlands conference which drew about 400 people to the Chase Center in Wilmington on Jan. 29 and 30.
“It will absolutely affect water quality because you are opening up impacts to streams. Even though it’s up in the upper headwaters, it all drains down into the same place. The impacts will be to those wetlands that should be filtering the water that flows down into the streams,” she said.
If Delaware decides to impose its own protections on the affected streams and wetlands, it would need a new law because current state regulation only covers tidal wetlands, which make up about a quarter of the state’s total wetland area, Rogerson said in an interview.
Earlier efforts to extend state protections to freshwater wetlands have been successfully resisted by realtors, farmers and some lawmakers, Rogerson said, but now that federal protection has been lost, advocates may be in a better position to win the argument.
“Withdrawal of federal protection may be the tipping point,” she said. “This gives us a lot of justification to say ‘This is it, we have got to step in because it’s not just a matter of wetlands for ecological sake, it’s a matter of water quality, and flooding, and all the things that come with wetlands, and you’ve got to see what the impacts are going to be.’”
About two-thirds of the affected wetlands are so called headwater flats that are especially vulnerable to development because they are only saturated during the wettest part of the year, and so may not look like wetlands, Rogerson said.
“If you apply for a permit to build a house on one of these areas and a consultant determines that it’s not on jurisdictional wetlands, you’re good,” she said.
EPA Administrator Andrew Wheeler, announcing the finalization of the rule – now called the Navigable Waters Protection Rule -- on Jan. 23, said it was designed to remove uncertainty for landowners over which parts of their land were subject to federal regulation.
“After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided,” Wheeler said in a statement.
The new rule excludes from federal jurisdiction areas that only contain water in direct response to rainfall; groundwater; many ditches; prior converted cropland; and waste treatment systems.
Critics include the EPA’s own Science Advisory Board, an independent panel of scientists, which last fall denounced the rule change, saying it ignores established science and endangers water quality by failing to protect smaller water bodies that contribute to the quality of bigger streams or lakes.
“The departure of the proposed rule from EPA recognized science threatens to weaken protection of the nation’s waters by disregarding the established connectivity of ground waters, and by failing to protect ephemeral streams which connect to navigable waters below the surface,” the board wrote. “These changes are proposed without a fully supportable scientific basis, while potentially introducing substantial new risks to human and environmental health.”
Mark Biddle, an environmental program manager with DNREC, has been studying what the rule change means for Delaware since it was proposed in 2018, and is now looking for any differences in the final version.
Whether or not the details differ, the federal pullback ignores the value of national regulation of waters that cross state lines, and will increase the pressure on state regulators to find a way of protecting the waters, Biddle said.
"Now they're going to say: 'It's not our jurisdiction - thanks, have a nice day,,'"- Marla Stelk, executive director of the Association of State Wetland Managers
“The government is doing this in the name of cooperative federalism,” he said. “What the federal government has done is said: ‘States: if these waters are important to you, then we’re going to leave it up to you to decide.’”
That could mean a new state law that regulates freshwater wetlands, or an expansion of the tidal wetlands law to ensure that downstream water sources are not contaminated by those higher in a watershed, Biddle argued.
“A lot of the most important water-quality benefits in our downstream waters is because those upstream waters are protected,” he said.
Implementation of the rule, formally due 60 days after its publication in the Federal Register, is expected to be delayed by legal challenges, but that doesn’t mean Delaware officials shouldn’t be prepared to act to protect the water sources, Biddle added.
In Sussex County, officials are separately considering a plan that would offer local protection to some of the streams and wetlands that are subject to the federal rollback.
Chris Bason, executive director of the nonprofit Delaware Center for the Inland Bays, told the wetlands conference that a proposed ordinance would double the width of buffers on tidal wetlands and tidal waters from 50to 100 feet, while leaving the width the same, 50 feet, for perennial streams.
The idea, he said, is to improve water quality and control flooding by reducing the amount of impervious surface around new development.
The measure is not a direct response to the WOTUS rollback but would, if accepted by Sussex County Council, help to protect some of the affected waterways.
“Indirectly, it would improve the health and protection of wetlands and it would improve water quality,” Bason said.
Statewide, the rollback will remove the possibility of federal regulation of the affected areas, even if it didn’t always fully protect them, said Marla Stelk, executive director of the Association of State Wetland Managers, a national group.
“If you put in a permit application that was near these streams or wetlands, the federal government would say: ‘Did you get a wetland delineation? Are these in our jurisdiction?’” she said, in an interview at the conference. “If it was in their jurisdiction, it would have to be permitted, and the developer would have to show that the impact was minimal or mitigated somewhere else.
“Now they’re going to say: ‘It’s not our jurisdiction – thanks, have a nice day,’” she said.
This piece has been corrected to reflect that the proposed Sussex County ordinance cited would double the width of buffers on tidal wetlands and tidal waters from 50 to 100 feet, while leaving the width the same, 50 feet, for perennial streams. It previously stated the proposal would double the size of a required natural buffer between new development and tidal wetlands or perennial streams to 100 feet from the current 50. Delaware Public Media apologizes for the error.
