EPA Change Limiting Scope of Wetland Protections Won’t Affect R.I.’s Watersheds
September 11, 2023
PROVIDENCE — Watershed watchers across the state can breathe easy this autumn, the rollback of federal protections for wetlands that went into effect last month won’t impact the Ocean State.
On Aug. 29, the Environmental Protection Agency announced it was limiting the scope of what specific wetland areas fell under the federal jurisdiction of the Clean Water Act. The change, effective that same day, removed federal protections for wetlands if those waterbodies don’t connect to a large body of water, an analysis often referred to as the “significant nexus test” by the EPA and Army Corps of Engineers.
The rule changes at the agency come three months after the Supreme Court ruled in Sackett v. EPA that the federal government could no longer use the significant nexus standard to determine the jurisdiction of the Clean Water Act. While the law, originally passed in 1970, prohibits discharging pollutants into what it refers to as “navigable waters,” a term that includes “waters of the United States and territorial seas,” the exact jurisdiction of that term remains undefined except in agency-set regulations.
Debates over what should be considered waters of the United States have gone back and forth since the late 1980s. The power and authority of clean water protections varies depending which political party occupies the White House. In 2015, then-President Obama attempted to enlarge federal power to protect waterways, announcing a total revamping of the definition of waters of the United States. The Trump administration later rolled back the rule and numerous other environmental regulations just a few years later. President Biden attempted to revive the 2015 rule last December.
But despite the dramatic seesawing at the federal level, Rhode Island’s wetlands aren’t going to notice the lack of federal protections. The state has had wetland protections on the books for more than 50 years; it was the second state in the country, after Massachusetts, to pass them. They are enforced by the Department of Environmental Management and the Coastal Resources Management Council.
“It’s a big chance at the national level,” said Chuck Horbert, deputy administrator for DEM’s Groundwater and Freshwater Wetlands Protection program and a 30-year veteran of the department. “But at the moment, it’s not going to result in any changes to the regulation of wetlands or the levels of protection of our water quality here in the state.”
There’s only one small change that will impact permitting in Rhode Island, according to Horbert. Developers and applicants will no longer be required to receive a federal water quality certification as part of their permit, a change that will only impact projects involving the disposal of dredge or fill material — a type of project that is rarely seen in the state.
The Legislature passed its first wetland protection laws back in the early 1970s, not long after the passage of the federal Clean Water Act. In 1974, local lawmakers expanded the protections to include upland buffer areas — strips of land immediately adjacent to wetlands that are to remain undisturbed to protect nearby wetlands — something the federal protections never covered. Those regulations have been periodically updated over the years by state environmental officials.
Last year DEM and CRMC concluded a multiyear process to revise the buffer zones to apply universally across the state. The changes did away with local zoning regulations and divided the state into three jurisdictional areas: one urban area and two separate river protection regions. Critics of the final changes argued that the new regulations increased buffers in rural areas at the expense of urban rivers and wetlands.
Wetlands make up a significant portion of the state. They include rivers and streams, marshes, swamps, bogs, and wet meadows. They are traditionally characterized by three things: a steady water source; water-loving plants; and the presence of wet or hydric soils, which are soils that are waterlogged for long periods of time and are often used to determine the limits of a wetland. Those soils, which come in gray or mottled green colors, are organically rich; because of the long-term wetness of wetlands environments, they cannot fully break down plant materials.
It’s estimated Rhode Island has 112,000 acres of wetlands, about 16% of the state’s total surface area. Despite their constantly soggy nature, wetlands are key for attracting a large range of wildlife species, recharging groundwater and aquifers, and soaking up rainwater that might otherwise cause flooding.
They also remove pollutants and excess nutrients from groundwater at an astonishing rate with a very precise cost. It’s estimated it would take a $5 million water treatment plant to remove the same amount of pollutants as the Congaree Bottomland Hardwood Swamp in South Carolina.
Nationwide, over a third of all threatened or endangered species live only in wetlands, with almost half of them using wetlands at some point in their lifespan.
“Everybody in the state understands how important clean water is. We’ve got so many people swimming in our lakes. We have a robust seafood industry that is dependent on clean water,” Horbert said. “So much of our economy is aimed at tourism; you don’t get tourists if you’ve got dirty water. We want people coming to our beaches, we want people coming into our seafood restaurants. Our economy is pretty heavily dependent on it.”