Saturday 20 April 2019

Waterkeepers Chesapeake Joins Over 115 Waterkeeper Organizations and Other Groups In Opposition to Repeal of the Clean Water Rule

In 2015, the U.S. Environmental Protection Agency (EPA) and the Army Corps (Corps) of Engineers passed the Clean Water Rule, resulting in a victory for a variety of streams, ponds, and wetlands that were vulnerable to pollution. Waterkeepers Chesapeake submitted comments that were supportive of the rule’s passage. The Rule was based on sound science and received broad public support.

The Clean Water Rule was part of a larger effort to clarify the definition of “waters of the United States” (WOTUS) under the Clean Water Act. How WOTUS is defined is important because any waterway that meets the WOTUS definition receives Clean Water Act (CWA) protections. Under the Rule’s updated definition of WOTUS, CWA protections would extend to the drinking water sources of 117 million people across the United States – every one in three Americans.  

Despite this – earlier this year, President Trump urged the EPA to repeal the 2015 Clean Water Rule. This rule would rollback the new definition adopted in 2015, reverting us back to the less protective definitions of WOTUS that have been in place since the 1970s.

Waterkeepers Chesapeake joined over one hundred other Waterkeeper organizations across the United States in signing onto Waterkeeper Alliance’s comments on these detrimental rollbacks. Waterkeeper Alliance took a comprehensive look at the EPA’s proposed rescinding of the rule and found that it violates requirements under the Clean Water Act, the Endangered Species Act, the National Environmental Policy Act, and Executive Order 13778. Further, Waterkeeper Alliance noted that neither EPA nor the Corps provided meaningful public participation required under federal law for these types of actions. The comments went on to state:

These failures are not mere technicalities and, if unaddressed, will severely undermine or eliminate fundamental CWA protections across the country – endangering our nation’s water resources…It would be difficult to overstate the critical importance of the CWA regulatory definition of “waters of the United States,” and thus this Proposed Rule, to the protection of human health, the wellbeing of communities, the success of local, state and national economies, and the functioning of our nation’s vast, interconnected aquatic ecosystems, as well as the many threatened and endangered species that depend upon those resources. If a stream, river, lake, or wetland is not included in the definition of “waters of the United States,” untreated toxic, biological, chemical, and radiological pollution can be discharged directly into those waters without meeting any of the CWA’s permitting and treatment requirements. Excluded waterways could be dredged, filled and polluted with impunity because the CWA’s most fundamental human health and environmental safeguard – the prohibition on unauthorized discharges in 33 U.S.C. § 1311(a) – would no longer apply. Because “isolated” waterways do not exist in reality but are merely a legal fiction of recent vintage, unregulated pollution discharged into waterways that fall outside the Agencies’ definition will not only harm those receiving waters, but will often travel through well-known hydrologic processes before harming other water resources, drinking water supplies, recreational waters, fisheries, industries, agriculture, and, ultimately, human beings.

In the Chesapeake region, streams and tributaries in the upper reaches of the Susquehanna, Potomac, Shenandoah, James and many other rivers would not receive protections under the Clean Water Act if the repeal of the Clean Water Rule is upheld. The repeal will mean more pollution to the lakes and streams we rely on for drinking water supply or for fishing and swimming, and a green light for the rampant destruction of wetlands that prevent dangerous flooding.

Clean water is essential for the health and sustainability of our families, communities and environment. Lest we forget -- we all live downstream. We have a responsibility, as a nation, to control pollution at its source and protect the drinking water sources of all residents – regardless of where they live. 

Waterkeepers Chesapeake will keep you informed with any updates on this rollback as we continue to fight its implementation.

To read the full comments, click here. 

Waterkeepers Chesapeake’s comments on Virginia’s Draft 2016 Integrated Report of Surface Water Quality (IR) highlight the many ways that this report on water quality does not protect local waterways and fails to make plans to improve impaired waterways.

Even after several years, impaired segments of waterways listed as Category 5 have not yet received required Total Maximum Daily Loads (TMDLs).  By comparing the 2016 IR and the 2014 IR, it becomes clear that many waterways listed as “Category 5” in 2014 have not yet received a TMDL. According to the Clean Water Act §303 (d)(1), every state must identify impaired waters, rank those waters in terms of severity of pollution, and assign TMDLs to those waters in accordance with the priority ranking. As Virginia’s Department of Environmental Quality (DEQ) is well aware, when a waterway is listed as a Category 5 it means that the body of water is impaired, or does not attain water quality standards and needs a TMDL; this is the classic list of Section 303 (d) waters. It’s unclear why these waterways have not received a TMDL over the years. A long list of waterways in Virginia’s Potomac and Shenandoah River basins have not received a TMDL for over nine years now, despite being listed as a Category 5.

There is little to no justification for why these impaired waterways have not yet received a TMDL over the years, some of which have been listed for over a decade. Further, some of the justifications in the notes section of the 2016 IR are exactly the same as the 2014 IR. Solely by looking at parts of the James River and Potomac Rivers, which have not received a TMDL, it becomes clear that there were absolutely no changes from the 2014 IR to the 2016 IR in terms of associated notes for PCBs in fish and public water supplies, E. Coli in recreational waters, pH issues impairing aquatic life, among other issues that cause environmental harm and public health concerns. This is the same for many other waterways. It is important that DEQ assign TMDLs to these waterways to ensure that water quality standards are being attained and that Virginia’s anti-degradation policy is being followed. 

Impaired segments covered by the Chesapeake Bay TMDL still require local TMDLs. DEQ should reverse its decision to remove hundreds of impaired segments of waterways from Virginia’s Category 5 list of impaired waters due to the Chesapeake Bay TMDL in the 2012 IR, 2014 IR, and 2016 draft IR. Many of the water segments removed from the Category 5 list of impaired waters needing a TMDL and placed on the Category 4a list only had conclusive statements about their reasons for removal. For instance, in the 2016 IR, for a segment of the James River that was partially delisted, there is a lack of clear explanation for why the segment was delisted along with, “The Chesapeake Bay TMDL was approved by the EPA on 12/29/2010; therefore, it will be considered Category 2C.” Under the Chesapeake Bay TMDL, the EPA stated that “in some cases, the reductions required to meet local conditions shown in existing TMDLs may be more stringent than those needed to meet Bay Requirements.” A local TMDL is needed for many of the water segments listed in Category 4a because the Chesapeake Bay TMDL is not localized to address specific needs of certain waterways and, in many cases, is less stringent than those DEQ previously determined.

DEQ has failed to gain any new information on many waterways listed as Category 3 over the years. Many waterways listed as Category 3 have been listed as such for many years now, with no progress made on obtaining any new information to decide whether water quality standards are being met. Even Category 3b waterways have not been reassessed. According to the 2016 IR, Category 3b listings mean that “some data exists but it is insufficient to determine support of any designated uses. Such waters will be prioritized for follow up monitoring.” It is important that DEQ gather more information on these waterways and work with local water quality organizations to ensure that water quality standards are being attained and that Virginia’s anti-degradation policy is being followed.

DEQ should make clearer any designation changes from previous IRs for increased public participation and awareness. In order to assess any changes to designations from previous reports, DEQ should simply add a column to the Appendix 1 Integrated List of All Waters in Virginia that includes the waterway’s designation from the prior report. This would make it easier for the public to see whether there have been any changes, improvements, degradations, or assigned TMDLs over the prior two years. This information is essential not only for transparency, but will allow citizens and water quality organizations to more easily assess whether water quality standards are being attained in their watersheds.


In late August, the United States Court of Appeals for the D.C. Circuit rejected the Federal Energy Regulatory Commission’s (FERC) approval of a Southeastern natural gas pipeline under the National Environmental Policy Act (NEPA). The Court found that FERC failed to quantify the climate impacts that would result from burning the natural gas that the Sabal Trail pipeline would deliver to power plants in Alabama, Georgia, and Florida.

According to the Court, FERC’s environmental impact statement (required under NEPA) for the project “should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so… As we have noted, greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate.”

The Court reasoned that quantifying greenhouse gas pollution from pipeline projects would enable FERC to compare potential emissions to other projects and to the total emissions from the state, region, and nation for emissions-control goals. This information is essential for ‘informed decision making’ and ‘informed public comment,’ according to the Court.

“The D.C. Circuit’s decision is long overdue – for too long FERC has rubberstamped project after project from the natural gas industry without fully considering the significant climate change impacts that these projects will cause. This is the first case in a line of cases to successfully challenge FERC’s lack of consideration for increased greenhouse gas emissions that result from major projects like this pipeline,” said Waterkeepers Chesapeake’s Executive Director, Betsy Nicholas.

For years, environmental organizations have argued that FERC must consider climate change impacts and greenhouse gas emissions when reviewing major projects, like the Sabal Trail pipeline.

Waterkeepers Chesapeake, Earthjustice, and other environmental groups led one of the more recent challenges against FERC for failing to consider potential climate change impacts that would result from increased fracking due to the construction and operation of a fracked gas export facility in southern Maryland. Dominion Energy’s Cove Point facility is poised to cause more greenhouse gas pollution than all of Maryland’s coal-fired power plants combined. While, the Court ultimately found that FERC was not required to consider ‘indirect effects’ like increased fracking and associated climate impacts in its approval of the facility – this case was important in that it introduced the Court to the potential impacts that arise from fossil fuels infrastructure.

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