Local and State Springs, Tributaries, Wetlands May Suffer From Pollution if Proposed Rule Is Finalized

Avondale Creek could be among the local streams removed from federal regulation. (Source: Nelson Brooke), Black Warrior Riverkeeper)

Environmentalists are warning that more than 80 percent of Alabamians receive their drinking water from sources that may lose critical protections under a proposed federal rule. The Waters of the U.S. rule was published Thursday in the Federal Register.

The Business Council of Alabama and the Alabama Farmers Federation are among those hailing the proposal, which would greatly reduce the environmental permits required of landowners and developers for discharges of wastewater and runoff of stormwater.

The rule will become final following a 60-day public comment period. Submit comments via the federal rulemaking portal.

Less Water Under Federal Regulation

The new definition of WOTUS from the Environmental Protection Agency and the Army Corps of Engineers would eliminate federal jurisdiction over headwaters, ephemeral and some intermittently flowing streams, and wetlands not abutting surface water.

Also not under federal oversight would be wetlands that do not have a surface water connection to a water that is under federal jurisdiction and some interstate waters that had been under federal jurisdiction. Under the new rule, bodies of water that have a “significant nexus” or link to waters under federal jurisdiction could not be considered for federal regulation on a case-by-case basis, as they have been.

Alabama has 132,000 miles of rivers and streams, of which 69,000 miles would be at risk of unregulated pollution under the proposed rule, according to the Southern Environmental Law Center.

Local streams such as Avondale Creek might also be removed from regulation, the Black Warrior Riverkeeper said.  “Avondale Creek begins as King’s Spring in Avondale Park,” Nelson Brooke said. He said the new rule might also affect Wilson and Roebuck springs, which are headwater tributaries to Village Creek.

In addition, Valley, Village, Five Mile and Turkey creeks “are all spring-fed tributaries to either the Locust Fork or directly to the Black Warrior River, and their small headwater springs, tributaries, and wetlands may be negatively affected” by the proposal, he said.

“This change would be a significant restriction of protected waters and a rollback of critical safeguards for water,” Keith Johnston, managing attorney of the law center in Birmingham, said.

“The health of downstream water is only as good as what goes into its headwaters, upstream tributaries, and wetlands,” he said. “Under this proposal, intake sources of drinking water would put 84 percent of the state’s residents at risk for unregulated pollution.”

The proposal especially targets small creeks and streams but would also remove most of Alabama’s wetlands from protection. Johnston said an acre of wetlands can hold one million gallons of water. “They are a natural sponge for flooding rainfall, filter pollution, reduce sedimentation and stormwater, and provide habitat for wildlife and aquatic life,” he said.

Water tupelo swamp in Hale County. (Source: Nelson Brooke)

Business, agricultural, and development interests have repeatedly faced off with environmentalists in court over the issue since 2015, when the Obama Administration proposed a rule to expand the scope of required permits. Some states, including Alabama, filed suit to stop its implementation and are not currently under the 2015 rule. The state’s then-attorney general, Luther Strange, said that rule “would subject farmers and business owners to citizen enforcement suits potentially carrying heavy civil and criminal penalties.

The farmers federation and the business council complained that the 2015 rule unduly restricted what could be done on a landowner’s property. In a statement, Farmers Federation President Jimmy Parnell applauded the new proposal, which he said would exclude ditches from regulation unless they contributed flow to a perennial or some intermittent streams.

Stormwater runoff from small and large developments is a major factor in sedimentation of waterways, such as the Cahaba River, which is why permits were required for work being done by some developers and landowners. But under the new rule, runoff into smaller streams that eventually flow into the Cahaba or other waters may not require environmental permits.

If the rule becomes final, Johnston said, those waters not under federal oversight could be regulated by the state. However, he said, “The Alabama Department of Environmental Management is the least-funded such environmental regulatory agency in the nation and is not likely to protect more than what is in the federal rule.”

He added, “This new rule will hurt everybody, including businesses such as the brewery and seafood and fishing industries that rely on clean water.”