The Chesapeake Bay Foundation filed a legal challenge Monday to a Trump administration decision that narrowed the definition of wetlands and streams that are protected under federal law.
“It’s unfortunate we have to take this step,” said Jon Mueller, the nonprofit advocacy group’s vice president of litigation. “The Chesapeake Bay Foundation doesn’t litigate unless it’s more or less a last resort. Here, we don’t really have a choice.”
Under President Donald Trump, the U.S. Environmental Protection Agency threw out an Obama-era rule that updated the definition of the “waters of the United States” that are covered by the Clean Water Act. Anyone seeking to affect those waters, such as by discharging pollution, dredging or filling with material, would need permits.
The Obama rule, issued in 2015, included pockets of water that aren’t directly connected to big rivers and bays, such as streams that run intermittently and nearby wetlands.
After the Trump administration tossed the Obama rule, it instituted its own, more narrow definition this year that leaves out scores of streams and wetlands, according to the bay foundation.
In a lawsuit filed Monday in U.S. District Court in Baltimore, the bay foundation asked the court to invalidate both the new Trump definition and the overturning of the Obama rule.
Brittany Wright, the bay foundation’s lead attorney on the case, said she expects many other environmental watchdog groups to file lawsuits as well.
“This is such a big rule that affects the entire country in different ways, due to differences in geography and water connectivity,” she said. “You’re going to see lawsuits everywhere.”EPA officials declined to comment on the lawsuit, citing a policy of not discussing pending litigation.
But agency spokeswoman Corry Schiermeyer said in a statement that the federal government is confident the new rule “will stand the test of time as it is securely grounded in the text of the Clean Water Act and is supported by legislative history and Supreme Court case law.”
The agency has touted the new definition as one that provides better clarity for those affected by the Clean Water Act.
The Trump administration announced in September that it would revoke the old rule and then put the new rule forward in January.
EPA Administrator Andrew Wheeler said in a statement in January that the federal government was “providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects.”
The new rule was announced at a trade show for homebuilders in Las Vegas.
The bay foundation contends that the intermittent streams and nearby wetlands play an important ecological role, even if they don’t have a permanent surface water connection to larger waterways.
The new rule would particularly affect unique features of the Chesapeake Bay’s watershed known as Delmarva bays and pocosins, which are a mix between a wetland and a sandy swamp.
“There are thousands of these, so the fear is now people could decide: ‘I don’t need a point source permit or a dredge-and-fill permit. I can fill in a wetland and I don’t need to tell anyone I’m doing it,’” Mueller said.
Without permits, it’s harder to track how much pollution is flowing through these waters into the Chesapeake Bay, complicating efforts to reduce pollution and improve the health of the bay and its rivers.
The lawsuit says the decision to abandon the old rule and institute the new rule — known as the Navigable Waters Protection Rule — wasn’t based on solid science and is “in direct contradiction” with the purpose of the Clean Water Act.
Repealing the rule “ignores the biological and chemical connections that create healthy waters, as expressly recognized in the purpose of the Act,” the lawsuit states.
“This nearsighted approach to water protection removes significant numbers of waters from the Clean Water Act — including waters and wetlands that have a significant nexus to downstream navigable waters — which fundamentally hampers the objective to restore and maintain our Nation’s waters," the lawsuit states.
The federal government went into the rule-making process with a predetermined outcome and ignored a deluge of public comments supportive of strong protections for streams and wetlands, the bay foundation argues in the lawsuit.