Multiple States Challenging EPA on WOTUS Definition Rollback, Air Emission Standards

Maryland Independent article (2019-10-14) reported that multiple states, including Maryland, are challenging recent regulatory changes made by the U.S. Environmental Protection Agency (EPA) to the Clean Water Act, including repealing a change to the “Waters of the United States” (WOTUS) definition and proposed limits to Section 401 of the Act, which allows states to block construction of interstate projects like pipelines or dams if they would damage local water quality.

Waters falling under the WOTUS definition are subject to federal oversight and project permitting. The WOTUS definition was strengthened during the Administration of President Barack Obama to include waterways with an intermittent or ephemeral flow and some wetland areas. The definition was opposed by the agricultural community and many local governments over concerns the new definition could subject roadside drainage ditches, irrigation ditches, and stormwater drainage channels to the Act. The National Association of Counties opposed the change on these grounds. MACo submitted comments urging an amendment clarifying that these water channels be expressly excluded from the definition. Despite multiple public statements saying ditches and drainage channels would not be considered as part of the definition, EPA refused to consider any amendment language. The definition change was recently revoked by President Donald Trump and a new definition is being worked on.

From the article:

The Trump Administration’s “determination to weaken the Clean Water Act threatens to undo our hard-won progress cleaning up [waterways] in Maryland and across the nation,” Maryland Attorney General Brian Frosh (D) said in a statement. “We plan to vigorously challenge this latest unlawful rollback.”

For farming and ranching advocates, however, the rule was a burdensome overreach that significantly raised the legal risks of pollution. According to the American Farm Bureau, the 2015 definition of “waters of the United States” made it unclear whether extremely minor bodies of water like ditches or streams could be subject to federal enforcement.

“We’re all supportive of water quality,” said Don Parrish, AFB senior director of congressional relations. “But farmers deserve clarity.”

The article noted that Maryland has strong local water protections and environmental advocates do not believe the definition rollback will produce problems within the state but could increase the amount of out-of-state pollution flowing into Maryland’s waterways. The Maryland Department of the Environment indicated that the definition rollback could result in up to 2.3 million pounds of nitrogen and 57,000 pounds of phosphorus could enter the Chesapeake Bay.

The article also discussed the challenge being brought by some states against the EPA’s recent decision prohibit California from setting its own air emission standards.

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