Conservationists in Arkansas are looking at the Trump administration's new definition of federally protected waterways to predict how the regulatory rollback will affect the state's wetlands and groundwater.
The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers last month published a rewrite of Barack Obama-era federal regulations under the Clean Water Act.
Farming and industry groups welcome the repeal of the EPA's current, broader definition of waterways protected under the Clean Water Act. The change has been one of President Donald Trump's priorities since taking office in 2017.
The new regulations, which will take effect June 22, replace the 2015 rule defining federally protected waterways, known as the "Waters of the United States," with the Trump administration's definition, the so-called "Navigable Waters Protection Rule."
The new, narrower definition removes federal protections for groundwater, ephemeral streams that only flow in response to precipitation, and wetlands that are not directly adjacent to a federally protected waterway.
Environmental groups including the Charlottesville, Va.-based Southern Environmental Law Center and the Natural Resources Defense Council have filed suit in federal court to block the new rule.
The primary effect in Arkansas may be a reduction in the acres of protected wetlands subject to a Clean Water Act permitting program, according to Walter Wright, an environmental lawyer at the Little Rock firm Mitchell, Williams, Selig, Gates and Woodyard.
Developers or construction crews that want to deposit dredged or fill material into a wetland must first receive approval from the Corps of Engineers under the Clean Water Act's Section 404 permitting program. Under the Trump administration's new rule, the number of wetlands that require such prior approval could be greatly reduced.
"From some Arkansans' standpoint, I think there's going to be concern that you're going to have areas developed that should've gone through permitting," Wright said. "On the other hand, you're going to have a set of people that believe that those are not the type of features that should have to go through permitting."
"So depending on your view, it's going to have a significant effect either way," Wright added.
Arkansas could see more rapid development taking place near wetlands where there is an economic incentive for growth, Wright said, noting legal uncertainty over the long-term status of the Trump administration's rule change, which the courts might strike down.
"They favor this much more narrow definition, and therefore I think there's going to be interest and pressure in taking advantage of this definition," he said.
PRAISE FOR NEW RULE
An internal slideshow prepared by the EPA and the Army Corps of Engineers in 2017, which was obtained by E&E News, estimated that as much as 51% of the nation's wetlands and 18% of ephemeral streams would no longer receive federal protection under the new rule.
Industry and agricultural groups opposed the Obama-era rule. The president of the Arkansas Farm Bureau praised the Trump administration last September when the administration announced the rollback.
"No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious," then-Arkansas Farm Bureau President Randy Veach said in a statement at the time. "We are relieved to put it behind us."
John Bailey, the Farm Bureau's director of environmental and regulatory affairs, said the new rule "provides clear and concise rules for farmers."
"Under the new rule Farmers are now able to look out over [their] own land and determine what is waters of the US without hiring costly consultants or engineers to do the work. In addition, we believe the new rules closely resemble what law makers had intended when the Clean Water Act was created back in 1972," Bailey said in an emailed statement Friday.
The 2015 rule was only in place in 22 states and was blocked in 28 others, including Arkansas, because of court rulings. Arkansas Attorney General Leslie Rutledge joined other states in challenging the Obama-era water rule and applauded its demise under the new administration.
"President Trump listened to our concerns and has kept his promise to replace the Obama-era definition of 'waters of the United States' and has given the power back to Arkansans to determine how best to protect our environment and promote economic growth," Rutledge said in a statement in January, after the Navigable Waters Protection Rule was finalized.
In an interview with The Washington Post last year, EPA Administrator Andrew Wheeler said the Obama-era regulations resulted in a "patchwork across the country."
"We need to have a uniform regulatory approach," Wheeler told the Post.
GROUPS' CONCERNS
Nicole Hardiman, the executive director of the Cave Springs-based Illinois River Watershed Partnership, said one concern from her organization is the new rule's deregulation of groundwater. There are often connections between groundwater and surface-water quality, Hardiman said. Businesses and individuals around the state rely on groundwater for drinking or to irrigate crops.
Additionally, deregulating streams that only flow because of precipitation "will encompass a lot of headwaters," Hardiman said, not just in the Illinois River watershed but across Arkansas.
"Any water body that flows only due to precipitation is still ultimately collected in a regulated waterway, for the most part," Hardiman said. For example, pollution deposited in these rain-fed headwaters could eventually end up in the Illinois River, she said.
The EPA's own Science Advisory Board has raised similar concerns in a review of the agency's new water rule. The board is made of up independent scientists, many of them appointed by the Trump administration.
In commentary submitted to Wheeler on Feb. 27, the advisory board chairman said the new rule "decreases protection for our Nation's waters and does not provide a scientific basis" to support its consistency with the objectives of the Clean Water Act.
In particular, the board criticized the rule's exclusion of groundwater and nonadjacent wetlands from federally protected bodies of water. If the government includes spring-fed creeks as protected waterways, there is "no scientific justification" for excluding connected groundwater, board Chairman Michael Honeycutt wrote.
Contamination of groundwater may lead to contamination of connected surface water, Honeycutt added, and shallow groundwater can also connect wetlands that only occasionally flow into larger bodies of water.
Regardless of the definition of a federally protected waterway, Hardiman said that in Arkansas, many state regulatory agencies don't have the capacity -- either financially or in terms of human capital -- to be able to address either definition and enforce the Clean Water Act through monitoring and regulatory action.
She acknowledged that oversight can be burdensome.
"But the key is: Are changes to the Clean Water Act and the Clean Water Rule made in the spirit of the making the process more efficient, or is it made in the spirit of undermining the intent of the law?" Hardiman said.
When asked which one is the case with the administration's water rule, Hardiman paused.
"Perhaps both," she said.
Ross Noland, an attorney in Little Rock who specializes in environmental law, said that, assuming the rule goes into effect as planned, Arkansas could see individuals bulldozing smaller streams on or bordering private property that are not connected to a navigable waterway. Likewise, wetlands that do not share a surface connection with a larger body of water might get filled in, Noland said.
Mountain streams in the Ozark and Ouachita mountains "will probably be the ones that are most at risk," Noland said in an interview.
State environmental regulators like the Arkansas Division of Environmental Quality, which issues permits governing pollutant discharges to water in lieu of the EPA enforcing the regulations directly, will have to decide if they will require a permit for discharges to smaller wetlands as a way to fill the gap created by the federal rollback, Noland said.
Gordon Watkins, the president of the Buffalo River Watershed Alliance, said the organization is less involved with advocacy regarding the federal rule change than with protecting the Buffalo National River locally.
But like the Illinois River Watershed Partnership, Watkins said Buffalo River advocates are concerned about potential pollution to groundwater and about contaminants moving through groundwater to emerge in springs. The issue came up during his organization's lengthy battle against the operators of a hog farm located near the Buffalo River.
Watkins described a sense of unease over the weakening of the Clean Water Act regulations, calling it "a bad omen for other water-related issues that might come up in the future."
"Just in general terms, it's a negative move that could come back to have impact on the Buffalo River," Watkins said.
Metro on 05/11/2020