When national environmental protections get weaker, Illinois' must get tougher.
Missouri Department of Transportation
Proposed revisions to the Clean Water Act may reduce regulatory oversight of development on Illinois wetlands and streams.
On Feb 14, the US EPA under President Trump proposed a new rule revising Clean Water Act protections. The most meaningful change? Rolling back federal protections on two types of hydrologic features: “ephemeral” streams (which only exist during storms) and isolated wetlands (which may drain into larger bodies of water during storms).
These rollbacks have largely been derided by conservationists as bad news for the nation’s lakes, wetlands and streams. Much of this public debate has focused on the Western and Southeastern United States, where the revisions are supposed to tip regulations in favor of ranchers and real estate developers.
Much less attention has been paid to the effect of these revisions on the State of Illinois. What do these revisions likely mean for the State and the Chicago region? Do they make our waters more vulnerable to pollution? Would they result in loss of wetlands or small streams with significant ecological value? If so, what can we do to make sure that our waters remain clean in light of the new federal regulations?
At MPC, we think that this likely revision highlights the need to strengthen water regulations at the State and enhance stormwater management in counties and municipalities. Below, we give some background on the proposed revisions, discuss its potential impact on Illinois, and highlight some legislative opportunities to protect Illinois’ water.
Background
The Clean Water Act is designed to protect the integrity of our national waters. For the roughly 40 years following the passage of the Clean Water Act, there has been a dispute about what bodies of water are covered under the rule. The law was exceptionally vague, in that it subjected “navigable waters” to federal oversight. There was particular confusion about whether two kinds of hydrologic features were regulated under the rule: ephemeral streams and isolated wetlands.
Isolated wetlands and ephemeral streams are critical components of our watersheds, and thus our clean water. When properly managed, these features enhance water quality: isolated wetlands retain water, sediment and carbon and help transform nutrient mixes, thereby keeping pollutants from entering our water supply. If mismanaged, they can also degrade water quality: ephemeral streams move water, sediment, nutrients, and debris through a stream network and make connections to larger sources within a watershed, which means that polluted ephemeral streams can lead to polluted water downstream. Ensuring clean water requires protecting both.
Obama EPA: Waters of the United States Rule (WOTUS). Recognizing the ambiguity in CWA and the importance of these hydrologic features, Obama’s EPA released the Waters of the US rule (WOTUS) in 2015 in consultation with the broader scientific community. The rule explicitly extended CWA regulations to ephemeral streams and isolated wetlands.
Trump’s EPA Part I: Unsuccessful Repeal. President Trump (who campaigned on a promise to kill WOTUS) and his EPA have tried to both suspend and repeal the rule. Trump wants WOTUS dead, but he hasn’t been successful so far.
Trump’s EPA Part II: Replace WOTUS. Which brings us to now. February’s proposed rulemaking process – which will almost certainly be officially adopted – creates a new rule for WOTUS, thereby replacing (rather than simply trying to repeal) the WOTUS definition. This new rule explicitly excludes ephemeral streams and isolated wetlands from CWA protections. The rule is up for public comment until April 15, 2019.
Effect on Illinois
So what would this revised definition of the WOTUS rule mean for Illinois at large, and the Chicago region in particular?
First, let’s get a handle on one important function of the Clean Water Act: the Clean Water Act regulates development activities that affect streams and wetlands in rural and pristine areas. Specifically, the Clean Water Act requires that a permit be issued for activities involving “dredging” or “filling in” a water of the US. The definitions of dredging and filling are pretty broad. If a developer levels out land that had a small stream in it, that is dredging or filling. And of course filling a wetland requires a permit.
Existing County regulations may protect Chicago area waters. In the Chicago region, 5 counties - Cook, Lake, DuPage, McHenry and Kane – have stormwater or watershed management ordinances in effect that, to varying degrees, regulate isolated wetlands and streams. These ordinances can pick up the slack if the WOTUS definition is revised. For instance, Lake County’s Stormwater Management Commission estimates that although roughly half of the wetlands in Lake County currently regulated by the Army Corps of Engineers under the federal Clean Water Act would be covered under the revised WOTUS definition, the county would regulate most of the non-federal wetlands as Isolated Waters of Lake County under the county’s Watershed Development Ordinance. In examples like this of strong county-level regulations, there may be little change in quantity of regulatory oversight if the proposed WOTUS definition is enacted.
Chicago area counties may see an increase in permit applications, which may strain regulatory capacity. While there may be similar regulatory authority at the county level, what would change under the new rule is the regulating body: responsibility to permit developments would devolve to the county. Under present law, to meet CWA regulations, developers must submit permitting applications to the Army Corps of Engineers. If WOTUS is repealed, these same permits, even if covered by county regulations, would be the responsibility of county regulators. Some affluent counties will likely have little problem absorbing that extra administrative burden; however, this same increased burden may create a significant regulatory obstacle in over-stretched counties.
Statewide, our waters are significantly more vulnerable. Until last year, there were only a small handful of counties in the state that had even the legal authority to create stormwater management commissions like those in the Chicago region. HB4748, signed into law in August 2018, changed all that, granting every county in Illinois the power to create stormwater management ordinances and planning committees like those in Chicagoland.
These committees and ordinances are, of course, no guarantees that counties throughout the state would protect wetlands and streams currently covered under WOTUS: their ordinances and commissions do not even exist yet. Moreover, these counties face the same potential obstacle to regulatory capacity: even if they had in place county level protections for ephemeral streams in wetlands, they may lack the capacity to enforce a potential onslaught of development applications.
We at MPC don’t know precisely what kind of effect it would have on Illinois’ water to de-regulate isolated wetlands and ephemeral streams. Answering that question would require extensive modeling that we haven’t done. But the potential impact may be vast. For that reason, we think there are some actions that the State should take to strengthen Illinois’ water regulations.
Ensuring Clean Water for Illinois’ Future
We recommend that the State take the following actions to protect Illinois’ water. Although the likely revision of WOTUS provides an especially strong impetus to take these actions, these are all important steps that the State should adopt anyway.
Protect ephemeral streams and isolated wetlands through state policy.
The IL EPA should adopt its own rules to regulate these features at the State level. Doing so would ensure uniform development standards across the state and centralize the administration of permitting, thereby alleviating burdens on county stormwater commissions.
Recognizing this need, state Senator Laura Fine introduced SB1352, which creates the Wetlands Protection Act. This act creates a uniform wetlands classification system and permitting process for wetland modification. Action like this can both protect our waterways and create clarity for developers. Understanding the benefits of a statewide wetland protection policy, neighboring states like Wisconsin have already passed similar measures.
Enhance local capacity to effectively regulate stormwater.
Managing stormwater and protecting water quality are inextricably linked. Pollutants carried in stormwater runoff from city streets and farm fields degrade drinking water quality and aquatic habitats. All of the 102 counties across the State have experienced flooding sufficiently severe to warrant a Presidential Disaster Declaration. Flooding in urban areas across Illinois resulted in more than $2 billion in damages between 2007 and 2014.
One mechanism to support communities in better managing their stormwater is to establish stormwater management planning committees (SMPCs). These committees oversee the distribution of grant funds to implement and maintain grey and green stormwater infrastructure solutions. Additionally, they address the growing number of overbank and severe weather flooding events caused by climate change, prevent insurance claims and public and private property damage, and improve economic opportunity related to surface water use.
Despite all Illinois counties having legislative authority to create SMPCs, currently less than a handful are utilizing this ability and have established SMPCs. The State should direct support to all counties to bolster local capacity of governments to use SMPCs as a mechanism to fund stormwater management and the growing need to address flooding in the face of climate change. The future health of our water resources depends on it.
Sustainable revenue for stormwater management
Managing flooding and building and maintaining stormwater infrastructure are not new components of most cities’ public works programs. However there is a growing need to ensure adequate and reliable funding streams are available at the municipal scale to reduce increasing street flooding, basement back-ups, as well as erosion, contamination and degradation of rivers and lakes, which arise from inadequately managed stormwater.
MPC compiled a guide to help municipalities identify what avenues are available to reliably and consistently generate adequate funds to manage stormwater. Some approaches include a dedicated tax, a stormwater fee or a special assessment, each with its own benefits and trade-offs.
Another mechanism for communities to access funding for managing stormwater is a grant program run by IEPA that assists in funding stormwater projects that help control waterway pollution. Called the 319 Grant Program, it provides financial support for non-pipe stormwater and water quality projects. MPC recently partnered with Christopher B. Burke Engineering, Ltd. to help more communities in the Northeastern Illinois region be eligible to apply for a 319 grant. The State should continue this grant program and others like the Green Infrastructure Grants program to avail resources to communities.
The bottom line: enhance local regulatory power
The loosening of Clean Water Act protections – to say nothing of the continued federal inaction on climate change – is a clear call to action: state, regional and local agencies and stakeholders must strengthen water regulations and enhance stormwater management regardless of who occupies the Oval Office.