Alongside Route 70 in Cherry Hill, 35 acres of wetland drains through pipes into a small tributary of the north branch of the Cooper River, which then empties into the Delaware River, the source of drinking water for millions of people in South Jersey and greater Philadelphia.
The wetland remains undeveloped thanks to a conservation easement that permanently prevents it being paved over or built on, due to a lawsuit settled in the mid-1990s by Robert Shinn and his wife, Roxane, two local conservationists.
Until now, the wetland has also enjoyed federal protection under the Waters of the U.S. (WOTUS) rule, which prevented development of such apparently obscure areas of a watershed on the grounds that they contribute to larger water sources, naturally filter out pollutants, and help to control flooding.
But federal protection no longer exists for the Cherry Hill wetland, as well as thousands of other minor water sources around the country, because the Trump administration is finalizing its rollback of the rule, which is based on the Clean Water Act of 1972, a landmark law widely credited for cleaning up important waterways such as the Delaware River.
The administration’s argument
The administration argues that the change removes regulatory uncertainty for landowners who no longer have to determine whether that part of their land is federally protected before they build houses or plant crops on it.
Replacing it is the Navigable Waters Protection Rule, which excludes from federal jurisdiction areas that only contain water in direct response to rainfall; groundwater; many ditches; prior converted cropland; and waste treatment systems.
“After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided,” said Andrew Wheeler, administrator of the U.S. Environmental Protection Agency, in a statement in January.
The rollback is now being challenged in court, most recently by the Natural Resources Defense Council (NRDC) and seven other environmental groups who sued the EPA and the U.S. Army Corps of Engineers in federal court in Massachusetts on Wednesday, urging the court to block the new rule.
What critics say
The suit argues that the new rule makes an “unreasonably narrow” interpretation of what constitutes the “waters of the U.S.,” excluding streams that are only fed by rain or snowfall, as well as wetlands, lakes and ponds that are not connected on the surface to other water bodies.
By excluding wetlands and minor or intermittent streams from its definition, the new rule has removed federal protection for almost one-fifth of the country’s streams and about half of its wetlands, and may have “devastating consequences” on water quality across the country, the suit says. “These excluded waters are critically important to downstream water quality,” it said, in a 49-page complaint.
It accused the two agencies of ignoring the advice of the EPA’s own Science Advisory Board, an independent panel that said the proposed rule departed from established science and endangered water quality. “These changes are proposed without a fully supportable scientific basis, while potentially introducing substantial new risks to human and environmental health,” the board wrote last year.
The latest suit also argued that the rule does not advance the aims of the Clean Water Act. Instead, the suit says, the rule “advances the Trump administration’s deregulatory agenda, protecting those who want to pollute the nation’s waters.”
The EPA said it does not comment on specific litigation but it defended the new rule as being grounded in the Clean Water Act.
“Congress, in the Clean Water Act, explicitly directed the Agencies to protect ‘navigable waters,’” the agency said in a statement. “The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them.”
Implications for New Jersey
In New Jersey, the new rule will mean more pollutants getting into water bodies like the Hackensack and Ramapo rivers, the Wanaque and Oradell reservoirs, and the water intakes in Pompton, said Jeff Tittel, director of the New Jersey Sierra Club, one of 22 environmental groups in two coalitions that have signed on to the suit.
“This will make it easier for developers, miners and big business to ruin our rivers and streams,” he said.
If the withdrawal of federal protection for small waterways leads to more areas being paved over, that will likely cause more flooding from stormwater runoff, predicted Fred Stine, citizen action coordinator for the environmental group Delaware Riverkeeper Network.
“We already are seeing significant flooding all over the place,” Stine said. “If you now take away a percentage of those areas that absorb water and pollutants, you are only going to exacerbate the problem downstream.”
Still, it’s not easy to predict local impacts of the rollback because the federal agencies have not adequately investigated how it will affect public health and safety, the environment, and the economy, said Jon Devine, an attorney for NRDC. The administration’s failure to do that work is one of the reasons for the suit, he said.
Opposition to the rule change has also come from the state Legislature, 43 members of which, including some Republicans, last year urged the agencies to withdraw the proposal, and from the New Jersey chapter of Trout Unlimited, an anglers’ group that said that New Jersey’s streams have a special need for protection because of farm runoff, urbanization and deforestation in America’s most densely populated state.
But critics were buoyed last week when the U.S. Supreme Court ruled that the Clean Water Act applies to some pollutants that enter protected waters like the ocean even if they enter it through ground water — a medium that would not be protected under the new rule.
In a 6-3 ruling, the court returned the case to an appeals court for reconsideration, leading critics of the rule rollback to hope that their case might succeed.
“We believe that we have a chance to overturn Trump’s rollback of WOTUS because earlier this month the Supreme Court ruled that groundwater is protected under the Clean Water Act because of its connection to surface water,” said Tittel of the New Jersey Sierra Club.