Trump order calls for review of water rule

The way Kitty Holtz sees it, the federal Environmental Protection Agency was overstepping its authority with the Waters of the U.S. Rule.

"Ditches and puddles should never be subject to permits," said Holtz, president of the Delaware State Farm Bureau.

Holtz said she was pleased Tuesday when President Donald Trump signed an order mandating a review of the rule aimed at protecting small streams and wetlands from pollution. Trump called the rule "destructive and horrible."

Now, she said, she hopes it will open a path to rebuild trust between the states and the federal government.

Others on the Delmarva Peninsula worry a regulatory rollback would lessen protection for rare and vulnerable wetlands and headwaters that provide critical habitats for frogs and salamanders, rare plants and sedges and that help filter water before it reaches the tap or open navigable waters downstream.

Gov. John Carney made clean water a priority when he started his administration.

“I'm disappointed that President Trump is acting to walk back important environmental protections intended to clean up our waterways and protect sources of drinking water," Carney said in an email. "As a member of Congress, I worked to ensure these clean water rules were formulated with engagement from Delaware farmers, which is critical. We should continue to act sensibly to protect our important natural resources and keep our water sources clean."

The rule, rolled out in May 2015, defined what was and wasn't regulated. For instance, tax ditches, which are used extensively in Delaware to drain seasonally wet farm fields, aren't regulated unless they were carved from a natural stream or branch. But the issue gets a little complicated because there are streams in Delaware that are called ditches, such as the Sockorockets Ditch near Georgetown.

It didn't create new permits for agriculture, and it maintained the exemptions and exclusions in place at the time.

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The rule had its roots in earlier court actions. Following Supreme Court decisions in 2001 and 2006, the rules governing streams and wetlands became complicated and permitting was time-consuming. The Clean Water Act, passed in 1972, covers only navigable waterways, but federal regulators began extending the reach of the act because of downstream consequences from upstream areas and adjacent wetlands. The rules were designed to clarify what federal officials saw as the most critical areas in protecting water.

In Delaware, it added an extra level of protection for a rare, freshwater wetland habitat called Delmarva bays. Once, there were nearly 17,000 of these low spots from Delaware south through the Maryland and Virginia Eastern Shore. These bays are sometimes called whale wallows because they looked like a giant sea creature moved the earth to form a depression with a sand wedge on one side.

They are wet in the winter and spring and dry in the summer and fall. They host dozens of amphibians and make the Delmarva Peninsula a breeding area for 14 frog and one toad species.

Delaware doesn't regulate freshwater wetlands; it relies on the Army Corps of Engineers.

In the Wicomico County, Maryland, community of Bivalve, water pools into puddles here and there in a landscape covered with decaying leaves and peppered with bare trees. The earth sinks with each step in this seldom-trod swamp.

Although this mucky spot lies just a few dozen yards from the Nanticoke River and is undeniably damp, it lays outside the jurisdiction of America's 45-year-old clean water rule. That's because the area remains unconnected to the river and brims with standing water only at certain times of the year.

Delmarva bays are mysterious depressions in the earth measuring anywhere from an acre to several acres. While their origins are debated, their environmental benefits are not, researchers say.

One of the largest in the region is near Prime Hook National Wildlife Refuge. An assessment of Delaware's "exemplary habitats" described the Huckleberry Pond and Swamp as two large, coastal Delmarva bays that have sand rims on the southeast ends and are seasonally flooded. There are more than 15 state and globally rare plants there.

Places like this didn't meet the EPA's definition of "waters of the United States," meaning "they could be tilled and developed with little or no regulatory oversight," said Judith Stribling, a Salisbury University ecology professor.

“Delmarva bays are one of the ones that have just been run roughshod over," she said.

About 40 percent of the once-17,000 Delmarva bays have been converted to agriculture use, another 29 percent are partially converted and 29 percent remain natural, according to researchers at the University of Maryland.

Some of her concern, Stribling said, is offset by the fact that Maryland has had a so-called "nontidal wetland" protection law on the books since 1990. But it wasn't always strenuously enforced, particularly when the sprawling Ocean Pines development began booming in the 1990s.

The head of the agency that oversees the state's wetlands vowed to ensure that Trump's actions don't scale back protections for such areas.

"We are ready, willing and able to do more if necessary," Maryland Department of the Environment Secretary Ben Grumbles said in a statement. "Continued federal support under the Clean Water Act and other conservation laws will be important, even as states consider assuming more regulatory responsibility."

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Some environmental advocates fear that rolling back the rule could weaken efforts to restore the Chesapeake Bay. If the federal government can't protect headwaters from harm, then waters farther downstream, including the bay itself, will suffer, said Jay Ford, executive director of Virginia's Eastern Shorekeeper.

"Protecting our Chesapeake Bay means protecting the waters that feed into it, period," he said. "Any effort to prevent Clean Water Act protections throughout the entire watershed is an attack on clean water."

Farmers have long criticized the water rule as governmental overreach. The definition's expansion under Obama seems to extend federal oversight to their ditches, they say —  a claim officials dispute.

Mark Biddle, an environmental scientist with the state's Watershed Assessment Division, said the rule gave landowners in Delaware more predictability as far as what they could and couldn't do with their property.

Without it, Biddle said, he expects the state will try to work with landowners to make sure they understand the value of critical wetland and stream habitats on their properties.

Biddle said there are some incentives available.

But Brenna Goggin, director of advocacy for the Delaware Nature Society, said she worries whether incentives will still be available given the estimated $350 million budget shortfall the state is facing.

The executive order "put us in a more difficult situation," she said. "We're already facing a significant water pollution problem" with over 90 percent of waters in the state out of compliance with the federal Clean Water Act goal of fishable and swimmable.

While much of lower Delaware gets drinking water from underground aquifers, in northern Delaware, drinking water comes from creeks and streams making headwater protection important for water quality.

Chris Bason, executive director of the Center for the Inland Bays, an organization that has done small restoration and monitoring projects at headwater streams, said these areas, at least in Delaware, can have high levels of nutrients like nitrogen and phosphorous because it is where the water comes closest to the land.

Once these small branches are tainted, "it doesn't make it any easier," he said. "Restoration is expensive and extensive" so it makes more sense to protect these areas "instead of having to go back and restore them."

Contact Molly Murray at (302) 463-3334 or mmurray@delawareonline.com. Follow her on Twitter @MollyMurraytnj.

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THE WATERS OF THE U.S. RULE 

• Defined and protected tributaries of navigable waters such as headwaters that have a connection to downstream waters.
• Protected waters next to rivers, lakes and tributaries. These adjacent boundaries were based on physical and measurable standards.
• Protected rare wetlands like Delmarva and Carolina bays, prairie potholes, pocosins, western vernal pools in California and Texas coastal prairie wetlands that impact downstream waters.
• Focused on streams. Ditches regulated only when they were dug from stream channels or functioned like a stream.
• Maintained the status of waters within Municipal Separate Storm Sewer Systems. 
• Reduced case-by-case analysis that resulted after court cases in 2001 and 2006.