By Dale Bryson,
Former Senior Manager, U.S. Environmental Protection Agency
The U.S. Environmental Protection Agency (EPA) recently came out with a new rule called the “Waters of the U.S. Rule,” which, naturally is designed to do away with another very important thing former President Barack Obama did. To appreciate what has happened, let me give you a bit of background.
When I was head of the entire water program in EPA Region 5, I denied a permit to the Solid Waste Agency of Northern Cook County where they wanted to fill in a 500+ acre wetland up by Barrington by creating a new garbage landfill there. I denied the permit for three main reasons. First, the large wetland fed water into the Fox River through the groundwater, which we had verified by tracer studies. To fill it in with garbage would add pollution to the headwaters of the Fox River. Second, there was a major black heron rookery in the wetland that would be destroyed. There are only three or four such rookeries left in Illinois. Third, this wetland was a major stop for migrating birds as they headed south for the winter.
That Solid Waste Agency sued the EPA over the permit denial. We won in the Federal District Court. The Solid Waste Agency appealed to the Federal District Court of Appeals where we won again. The Solid Waste Agency then appealed to the Supreme Court. At the same time, another wetlands case, this one from Michigan, went to the Supreme Court as well. Unfortunately, the Supreme Court agreed with the Solid Waste Agency and the Michigan firm. The majority opinion was written by Justice Antonin Scalia, the most conservative judge, who wrote a quite harsh opinion that included a couple of lines that basically would, if left standing, allow the destruction of most wetlands and would remove Federal protection of millions of miles of rivers in the U.S.
Under the Bush administration and then the Obama administration, the EPA and the Corps of Engineers spent 10 years developing a new definition of what rivers and wetlands would have Federal protection from pollution and filling in. They held over 200 public meetings, reviewed over a million comments, and then came out with the new rule in 2015. It was approved by the Federal Courts.
That brings me to the Trump administration and their new rule, which basically destroys all of the Obama rule. For example, 51% of the wetlands in the U.S. will now be fully open for filling in for development. Over 18% of the U.S. rivers will no longer be protected, which affects 30% of the population who get their drinking water in part from those rivers.
One of largest development companies on the East Coast was quoted yesterday saying, ‘We love it. Now we can build anywhere!’
To give you a specific example, near the Potbelly restaurant on Diehl Road is a huge wetland. Diehl Road makes a curve around that lake/wetland. Again, on my watch at the EPA, Cantera Development wanted Diehl Road to go straight through the wetland and maybe fill in part of it for development. I denied their permit application because that is the largest wetland left in DuPage County and for other reasons. I insisted they go around the wetland. We won. They built a curved road, and the wetland was protected. That could all change now. Under this proposed rule by the Trump administration, they would allow the wetland to be filled in and apartments or a strip mall to be built there.
Why is that wetland on Diehl so important? It has a berm that separates it from the river. When the river floods, the water flows into the wetland thereby becoming a huge reservoir for water, thereby protecting from flooding downstream. Under the Trump rule, for a wetland to be protected, it must have a direct connection to a river and that connection must have water flowing into the river 100% of the time. This wetland has flows to the river, but they are through the groundwater. Under the Trump rule, that does not count as a wetland that needs protection.
Think of all the small wetlands you pass as you drive to, say, Whitewater, Wisconsin. Those are called “isolated wetlands.” Even though they are crucial to replenishing the groundwater, under the new rule they can be drained and/or filled in because they have no direct connection to a river. All of the “prairie potholes” in eastern South Dakota and North Dakota (where 50% of the migratory wildfowl reproduce) would also lose their protection.
One of the national farm organizations came out with a statement saying this new rule is just what they want so that they can “drain all these small swamps!” One of largest development companies on the East Coast was quoted yesterday saying, “We love it. Now we can build anywhere!”
The National Resource Defense Council, Earth Justice, the Sierra Club, and many others will contest this new outrageous rule. Let us hope they prevail, and that the wetlands and rivers of this country will be protected!
Though retired now, Dale Bryson was a senior manager of the U.S. Environmental Protection Agency. He was in charge of all water programs, including water pollution control, water protection, safe drinking water, and wetland protection.