Repeal of wetland legislation could affect Lake Erie

Farmers cheer move by Trump administration, while activists fear for water quality

The Trump Administration has moved to repeal a federal regulation designed to protect wetlands and small bodies of water, alarming Ohio environmentalists who say the rollback would leave Lake Erie vulnerable to contamination.

Malcolm Shore, of Temperance, walks along the pier lookig at the ice formations on Lake Erie in Luna Pier in February. Farmers are cheering and environmentalists are concerned with a recent move by the Trump administration to rollback a regulation designed to benefit water quality in Lake Erie.

The 2015 regulation — known as Waters of the United States, or WOTUS — extends longstanding federal protections for large bodies of water to surrounding wetlands and streams. In northwest Ohio, environmental experts say, the rule prevents abuse of the many small bodies of water that flow into Lake Erie, a major source of drinking water for Toledo.

“You can’t control the water quality in Lake Erie just by working in Lake Erie,” said Jeff Reutter, the former director of a Great Lakes research institute at Ohio State University. “If you want to really protect it, you have to take action throughout the watershed. And eliminating that rule makes it much harder to do that.”

Last week, the administrator of the Environmental Protection Agency, Scott Pruitt, released a detailed proposal for repealing the clean-water rule, which critics say interferes with farming and real-estate development. 

As he signed an executive order calling for its repeal earlier this year, President Trump described the rule as “one of the worst examples of federal regulation.”

The repeal proposal was cheered by local agricultural groups, including the Ohio Farm Bureau. In a statement, Jack Irvin, a senior director at the bureau, said the potential rollback of the rule is “testament to our farmers who spoke up and shared their stories about how this rule would have negatively impacted their farms.”

The rule was designed to clarify the 1972 Clean Water Act, which was passed partly in response to the burning of the Cuyahoga River three years earlier. The act allows the federal government to regulate major bodies of water, such as Lake Erie, but does not make clear whether the same regulations can apply to smaller streams and wetlands.

“Some streams are within the definition, some wetlands are within the definition, but the line is pretty blurry,” said Kenneth Kilbert, a University of Toledo professor who specializes in water law. “The goal of the WOTUS rule was trying to provide more certainty regarding where that line was.”

In the Toledo area, the regulatory status of streams and wetlands matters greatly: Together those small bodies of water form a winding path that ultimately leads to Lake Erie, a source of drinking water for 11 million people.

Even a seemingly innocuous action more than a hundred miles from Lake Erie — like a farmer draining wetland to plant corn — could ultimately endanger the water, Mr. Reutter said.

Sam Gerard, who works for the advocacy group Environment Ohio, said the prospect that those bodies of water will go unregulated should set off alarm bells in Toledo. In August, 2014, an algal toxin contaminated the city’s water supply, prompting authorities to tell nearly 500,000 residents not to drink tap water.

“Having WOTUS rolled back will open up more public health hazards in Toledo,” Mr. Gerard said.

Despite the algae crisis, the water rule has proved controversial in Ohio over the last two years, pitting local environmentalists against the state’s attorney general, who joined a group of nearly two dozen states that challenged the regulation in court in 2015.

As a result of that lawsuit, a federal court suspended implementation of the rule in October, 2015, just months after it was established. Last week, Ohio Attorney General Mike DeWine, a Republican who is running for governor, joined other states involved in the suit in applauding the Trump Administration’s efforts to rescind the rule.

“The rule’s broad assertion of authority unlawfully impinges on the states’ traditional role as the primary regulators of land and water resources,” he said in a statement.

Mr. Kilbert said the courts will likely pause the states’ case pending the result of the repeal process, which could take years to complete and may generate further litigation.

Contact David Yaffe-Bellany at: dbellany@theblade.com, or 419-724-6050.