Maryland Pushes Back Against EPA’s Attempt to Take Away States’ Rights

By Aaron Zoellick, WKC Legal Intern

Long before President Trump was inaugurated, it was clear that unraveling environmental protections was going to be a key part of his agenda. With the initial appointment of Scott Pruitt, and now Andrew Wheeler, as the head of the Environmental Protection Agency (EPA), the administration set out to rollback or eliminate nearly 100 environmentally friendly rules and regulations in under four years. These rollbacks threaten the health and safety of people, wildlife, and the environments in which we live; from the air that we breath, the water that we drink, the food that we eat, and the myriad of ways in which commercial goods are manufactured, inspected, and transported across the country.

Many of the rollbacks will not only be detrimental to the work that has been done in revitalizing the Chesapeake Bay to make up for mistakes of the past, but also in combatting climate change as we prepare for the future. One rollback, for instance, was finalized this month and would remove many streams, wetlands, and groundwater from federal protection. The rollback, in particular, will undoubtedly undo much of the hard-fought work over the last 30 years and leave the Chesapeake Bay and its surrounding neighbors more vulnerable to the future impacts of climate change.

In August 2019, the EPA submitted a Proposed Rule that aims to silence any state that attempts to stop a major project from moving forward due to its associated harmful water quality impacts. Under Section 401 of the Clean Water Act (CWA) states are authorized to “certify” whether a major, federally-licensed project will have an impact on state water quality standards. A state has the choice to approve a project, approve with additional conditions, deny, or waive a “Water Quality Certification” for any project that may have an impact on state waters.

The Proposed Rule on Section 401 received nearly 125,000 comments from the public. A majority of states and their respective environmental agencies or Governors sent in comments opposing the rule, including the Maryland Department of the Environment (MDE). In MDE’s comment, Secretary Ben Grumbles stated that the Rule would “undermine state authority and jeopardize the ability of states to protect their water from pollution associated with federally permitted activities….” Secretary Grumbles even goes so far to say that the Proposed Rule “puts forth a series of constraints on state implementation of CWA 401 that are contrary to law….”

It would be easy in the face of this onslaught against the environment to give up hope and believe that all is lost. In such times though it is important to remember a quote from Fred Rogers, “[l]ook for the helpers. You will always find people who are helping.” In the weeks, months, and possibly years to come, many of the regulatory rollbacks initiated by the Trump administration are set to make their way through the courts. Indeed, the administration hastily forced almost every environmental rollback without firming up the necessary legal arguments to merit such a strong regulatory changes.

Here, in the Chesapeake Bay, local legislators are working to guarantee that states retain the authority they are entitled to under the Clean Water Act. At the beginning of the 2020 session of the Maryland General Assembly, Delegate Jim Gilchrist introduced the 401 Water Quality Certification Improvement Act that would ensure Maryland’s ability to thoroughly review and analyze all the proposed water pollution impacts from any given federally-licensed project that may affect Maryland waterways. Furthermore, the bill puts the burden to identify, quantify, and evaluate all associated pollution impacts where it belongs, on the project developer.

While the difficulties ahead are many, so too are the reasons to be optimistic. All across the country advocates for clean and vibrant waterways, forests, fields, and neighborhoods are pushing back against these unprecedented rollbacks. The Trump administration may be claiming that they are doing what is best for the environment but, in fact, it is they – those that choose to deny the overwhelming science behind climate change, and those that choose time-and-time again to neglect and ignore the nation’s waterways – that are living in the land of make believe.

Stay tuned on how you can help save Maryland’s authority to protect our local waterways from federally approved projects!