DEQ, NC Attorney General sue Trump administration over Clean Water Act rollbacks

The NC Department of Environmental Quality and the state Attorney General’s office have joined 16 other states in suing the Trump administration over rollbacks of Waters of the United States rule, also known as WOTUS.

The rule, which narrows the scope of waters that must be protected under the Clean Water Act, is scheduled to take effect on June 22, 2020.

Enacted by Congress in 1973, WOTUS,  regulates “navigable waters” — rivers, lakes, streams, wetlands and seas, as well as any waters that directly connect to them. This rule plays out in real life when an industrial plant wants to discharge pollutants into a river or a state transportation department wants to fill in a wetland to build a road. In each case, the entity must get a federal and state permit detailing the extent of the harm it can exact.

In. 2015, the EPA under the Obama administration strengthened the WOTUS rule based on science. New research showed the importance of underground hydrological connections between ephemeral or intermittent streams and their more robust counterparts. Obama’s WOTUS rule acknowledged the ecological value of isolated wetlands in providing flood control and wildlife habitat. It did not, contrary to the rule’s opponents, apply to most farm ditches, farm ponds, and storm water retention areas in housing developments.

But the Trump administration, catering to the real estate interests, agribusiness, mining companies, pipeline builders, and industrial dischargers, has rolled back WOTUS and other key provisions in the Clean Water Act. Fewer protections for streams and wetlands mean some of these sensitive waterways would be polluted, filled in, dredged, or paved over with impunity.

The EPA’s own documents show that nationwide, 18% of all streams are considered “ephemeral,” meaning they are only filled with water primarily after rainfall; they would lose protections, even though they contribute to ecosystems and aquatic habitats.

Wetlands, too, are imperiled by the EPA rollback. “This rule threatens decades of improvements in water quality and endangers North Carolina’s unique wetlands,” said DEQ Secretary Michael S. Regan. “This historic rollback of protections will result in a significant loss of natural resources and it is not based on science and runs counter to decades of EPA policy. DEQ will continue to use the state’s authority to protect water quality and the associated economic benefits to North Carolina.”

For example, wetlands that are connected by groundwater to a regulated lakes or stream would no longer be protected. Nor would wetlands that physically separated from those waters by human-made dikes or barriers. (Technically, all that would be needed to circumvent the Clean Water Act is to build such a barrier.

In its court filings, DEQ and the NC Attorney General argue that the new rule arbitrarily narrows the existing definition of waters protected under the Clean Water Act and excludes many of North Carolina’s wetlands. These wetlands play a critical role in filtering pollution and slowing stormwater during flooding events.  “The new rule also reduces protections for drinking water sources, risks damage to our fishing industry and increases flooding risks from runoff and sea-level rise,” DEQ said.

The case has been field in US District Court of Northern California. It asks the court to vacate the Trump administration rule and to declare it “capricious, arbitrary and unlawful.”

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