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US agency proposes expanding waters open to impacts without permits

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U.S. President Donald Trump speaks April 20 as Lt. Gen. Todd Semonite, then the commanding general of the U.S. Army Corps of Engineers, looks on during a daily coronavirus briefing at the White House in Washington, D.C.
Source: Alex Wong/Getty Images News via Getty Images

The Trump administration has proposed further rolling back protections for federal wetlands and waterways impacted by coal mining, renewable energy construction, farming and other kinds of commercial activities. The move could leave drier sections of the U.S. with scant restrictions on damaging rivers and streams, according to environmentalists.

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers issued a regulation in January, which was finalized in April, redefining what the U.S. government classifies as waters regulated under the Clean Water Act, shrinking the number of protected wetlands, seasonal streams and creeks under the statute. In a move that could further pare back federal water use barriers, the Corps published a proposed rule in the Federal Register on Sept. 15 that environmentalists say would dramatically increase how much of a river or stream could be filled and dredged.

The proposal seeks to reissue and modify existing nationwide permits, which are updated every five years. The current nationwide permits were issued in 2017 and will expire in 2022 unless they are modified or reissued, according to the proposed rule. The permit changes follow President Donald Trump's executive order instructing federal agencies to find ways to alleviate regulatory burdens hindering domestic energy production.

Specifically, the Corps proposed removing a requirement that unpermitted impacts to streams by coal mining, farming and other activities must be limited to 300 feet of stream bed. Instead, the agency would like to allow these actions over a half-acre of stream, a measurement that "most accurately represents the amount of stream bed lost as a result of filling or excavation, and the subsequent functions that are expected to be lost," the proposed rule said.

Tenfold expansion

This change would effectively expand by tenfold how much of a waterway companies can dump into without a permit, former U.S. Environmental Protection Agency water official Betsy Southerland said in an interview with S&P Global Market Intelligence. Under current regulations, companies can make an impact greater than 300 feet but must receive prior approval from the Corps. By changing the protective criteria from the length of a stream to its surface area, the agency has proposed allowing more than 3,000 feet of stream to be subject to unpermitted dredging and filling, Southerland said.

When paired with the Trump administration's recent revisions to federal water definitions, the proposed rulemaking could have serious implications for drought-stricken areas of the western U.S., Southerland said. Noting that the recent regulatory change removed protections for seasonal streams, Southerland believes that the few waterways and wetlands still covered under current regulations could be even less protected as that region grows more arid.

"This would allow the few small streams and wetlands still covered by the Clean Water Act to be dredged or filled with very few requirements," Southerland said.

Frank Macchiarola, senior vice president of policy, economics and regulatory affairs with the American Petroleum Institute, said nationwide permits are "integral to America's infrastructure and to a broad spectrum of our nation's industries" and the trade group plans to work with the Corps on the rule to ensure the program will continue to "safely and responsibly permit infrastructure projects around the country."

Expected impacts

The Corps estimates that the proposal will allow 255 more activities to occur annually without requiring individual permits as those activities could instead be covered by a nationwide permit, according to the proposed rule. In doing so, the proposal reduces compliance costs, saving regulated entities about $8 million per year compared with the 2017 nationwide permits. The nationwide permits entice project developers to minimize their environmental impacts to waters and wetlands to receive faster Corps authorization, the rule said.

The proposed rulemaking offers a number of separate changes to the nationwide permits, including the removal of prior notice requirements for activities covered under the modification to stream bed impact allowances and the establishment of a separate permit for telecommunications utility line construction. The latter move would limit other activities covered under the Corps' nationwide permit for oil and gas activities.

The public has 60 days to comment on the proposed rule. Julia Anastasio, executive director of the Association of Clean Water Administrators, said in a Sept. 16 email that it will be a challenge for the Trump administration to finalize the changes before a potential transfer of presidential power in January 2021 because the comment review process "usually takes some time."

"As to whether these can be finalized before the end of the first term, I think that will be quite difficult," Anastasio said.