New EPA rule raises water quality red flag

The EPA estimates that about 18% of streams nationwide and about 51% of the country’s wetlands will no longer be subject to the Clean Water Act once the President’s Navigable Waters Protection Rule goes into place.

WASHINGTON, D.C. — A new federal rule signed by President Donald Trump on Jan. 23 has the potential to strip away longstanding environmental protections for streams and wetlands nationwide. Barring a legal challenge, the new rule will go into effect March 24.
In the interim, local regulators and environmental advocates are determining what the effect of the new rule, called the Navigable Waters Protection Rule, will be on the ground in Vermont.
Some officials say Vermont’s strict water quality standards, many of which go above and beyond the protections required by the federal Clean Water Act, will keep the vast majority of the state’s streams and rivers protected from most of the changes brought by the new rule.
“We have very broad and comprehensive state jurisdiction in Vermont over water quality as a state. I think a very small subset of waters here in Vermont will be affected,” said Pete LaFlamme, director of the Department of Environmental Conservation’s Watershed Management Division.
However, some advocates say the change eliminates the federal backstop that protects many of our waterways, making it easier for local water quality regulations to be rolled back to levels not seen since the 1980s.
“What this rule does is potentially — and I say potentially because it will be challenged in court — changes the federal floor against which our own state rules to protect water quality are measured,” says Elena Mihaly, senior attorney for the Conservation Law Foundation in Vermont. 
In April 2019, Vermont Attorney General T.J. Donovan joined 13 other states’ attorneys general in submitting a letter to the U.S. Environmental Protection Agency outlining their concerns about the new rule (then a proposal), citing questions about whether the change was grounded in scientific reasoning.
The new Navigable Waters Protection Rule, or NWPR, shrinks the definition of the “Waters of the United States” — lakes, rivers and streams governed by the federal Clean Water Act of 1972 — excluding 12 categories of water bodies that were previously protected. When the new rule goes into effect, the Clean Water Act will apply only to navigable waterways and the “core tributary systems that provide perennial or intermittent flow into them.”
The NWPR replaces an Obama-era executive order called the Waters of the United States Rule, which generally expanded the Clean Water Act’s reach by making smaller tributaries and streams that feed into larger bodies of water like the Chesapeake Bay or Colorado River. Put forth by the EPA and Army Corps of Engineers in 2015, the Waters of the United States Rule broadened the Clean Water Act to include nearly 60% of waterways in the United States and drew criticism from farmers, real estate developers and extractive industries.
The new NWPR rolls back those Obama-era protections, particularly for certain types of wetlands, small waterways, ephemeral streams and, notably, groundwater, bringing the scope of the WOTUS back to 1986 standards, when wetlands were first protected under the Clean Water Act.
Proponents of the NWPR say it will offer greater clarity around which waterways are subject to the Clean Water Act and which waters are subject to state jurisdiction alone. The new rule establishes four categories of waterways that are federally regulated under the Clean Water Act: navigable waters, their tributaries, lakes and ponds and major wetlands. Other bodies of water will no longer be covered by the Clean Water Act.
Experts at the state level say the change is unlikely to affect funding for water conservation and regulation in Vermont. However, it could weaken the state’s obligation to regulate water quality and pollution in certain bodies of water previously protected under the federal Clean Water Act — among them small streams and ephemeral wetlands near the top of our water system.
“I think this new rule speaks to the importance of having robust state regulatory programs,” said Julie Moore, secretary of the Vermont Agency of Natural Resources (ANR).

Vermont, like its New England neighbors, has, in addition to Waters of the United States, what are called officially designated “Waters of the State” — waters that are subject to Vermont’s own water quality regulations in addition to those set forth under the Clean Water Act.
One of the primary ways that the Clean Water Act regulates pollution and development near sensitive water resources is through permitting. Vermont, like many New England States, has what is known as “delegation authority” under the Clean Water Act. This means that the Vermont ANR issues permits required by state law and signs off on the corresponding federal permits required under federal law for potentially polluting activities affecting WOTUS within Vermont.
For example, in Vermont, federal stormwater discharge permits are issued by the state on a case-by-case basis as prescribed by the Clean Water Act, alongside a suite of closely related state permits.
According to the DEC’s LaFlamme, this means Vermont’s regulators get to opine on each federal permit they issue — keeping them aware of any building development or agricultural project that triggers a permit review process under either set of regulations.
However, “there are a small set of cases where federal jurisdiction exists and state jurisdiction does not,” said LaFlamme. “Those are cases where if the federal jurisdiction shrinks, we will potentially have wetlands and streams that don’t have protection. However, I don’t think that is a large subset (of water bodies) in Vermont.”

According to LaFlamme, one of the places where there could be a jurisdictional gap is in the regulation of Class III wetlands, where the state does not require a permit for development under state law.
In contrast with state-regulated Class I and Class II wetlands, these unmapped bodies of water are not granted special protection under the Vermont Wetlands Rules and are under the sole jurisdiction of the Army Corps of Engineers. Class III wetlands are not mapped in Vermont, so it is difficult to say what proportion of Vermont’s wetland ecosystems fall under this category. Generally, Class III wetlands are small, isolated wetlands that are not vernal pools, bogs or fens and are less than a half-acre in size.
The Vermont office of the Army Corps of Engineers referred inquiries about how this rule change will impact their local jurisdiction to the EPA.
According to a 2019 report by the DEC’s Vermont Wetlands Program, studies have shown that up to 39% of Vermont wetlands may not be mapped as part of the Vermont Significant Wetlands Inventory, the state’s database of existing wetlands. Though that doesn’t necessarily mean those wetlands are exempt from state regulation or that they are Class III wetlands — it could just mean they have yet to be catalogued.
Vermont has seen substantial loss of its wetlands in recent years due to residential, commercial and industrial development. The DEC reports that more than 35% of the original wetlands of Vermont no longer exist.
“Wetlands in particular … are very important in maintaining a healthy annual hydrologic regime. Discontinuities in flow and interruptions at the headwaters tend to magnify as you head downstream,” said LaFlamme. Essentially, small wetlands upstream help to improve water quality downstream when left pristine.
“Currently, we have nearly 100% overlap in jurisdiction (with the federal Clean Water Act) in most cases,” said LaFlamme. “I don’t think we will lose protection in those areas due to our state regulations; however, we may be losing overlapping jurisdiction.”
However, the EPA estimates that about 18% of streams nationwide and about 51% of the country’s wetlands will no longer be subject to the Clean Water Act once the President’s rule goes into place.
“I think this new rule speaks to the importance of having robust state regulatory programs,” said ANR Secretary Moore. “There have historically been conversations about whether it makes sense to return our delegatory authorities to the EPA… These rulings show the importance of being able to take into account state-specific landscapes and the need to establish appropriate frameworks that protect the state’s goals.”

Each year, Vermont receives millions of dollars in funding from the EPA to implement the Vermont Water Quality standards and enforce the federal Clean Water Act. This funding has a direct impact on Addison County.
To meet its 2016 Phosphorous TMDL for Lake Champlain, Vermont must reduce the more than 631 metric tons of phosphorous it contributes annually to Lake Champlain to 417 metric tons per year. That is a 34% reduction that will be implemented by ANR with regular progress reports filed with the EPA.
State and federal officials say the new NWPR will not affect that project or other water quality projects like it around the state.
“Under this rule, Lake Champlain will continue to meet the definition of a ‘Water of the United States’ such that the lake and its perennial and intermittent tributaries will be covered under federal jurisdiction,” said a spokesperson for the EPA this week. “Additionally, wetlands meeting the conditions of the ‘adjacent wetlands’ category (those that physically touch a jurisdictional waterway) will also be jurisdictional.”
According to a legislative report from August 2019, the Vermont Department of Environmental Conservation will receive 40.6% of its funding from the EPA for the current fiscal year — about $42.4 million out of the department’s $104.4 million budget. That $42.4 million in federal funds includes $6.25 million towards implementing Lake Champlain’s Phosphorous TMDL through stormwater management, agricultural projects and restoration.
“I have no reason to believe that this piece of rulemaking should have any implications on the federal funding we receive for our (state water quality) programs,” Moore said of the rule change. The EPA spokesperson confirmed this on Feb. 10.
Though the NWPR was hailed as a victory by the National Farm Bureau and other agricultural organizations, Champlain Valley Farmers Coalition President Brian Kemp believes it will have little bearing on agriculture in Addison County.
“Our work has been and will continue to be proactive and Vermont’s required agricultural practices are stronger than the federal rules were even before these changes,” Kemp said. “I don’t feel that these new rule changes will have Vermont farmers reverting backwards and jeopardizing the climate, air or water quality.
“We’ve been leaders in change and … I don’t see any way in which these new rule changes will affect future progress or the practices we already implement.”
Click here to read a related story by Giles on whether the new law will hold up in court.

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