New regulation may strip pollution protections from popular lakes
WILMINGTON, N.C. — Nearly 50 years ago, a power company received permission from North Carolina to build a reservoir by damming a creek near the coastal city of Wilmington. It would provide a source of steam to generate electricity and a place to cool hot water from an adjacent coal-fired plant.
Sutton Lake became popular with boaters and anglers, yielding bass, crappie, bluegill and other panfish. But coal ash from the plant fouled the public reservoir with selenium, arsenic and other toxic substances, endangering the fish and people who ate them.
Environmentalists sued Duke Energy, which settled the case by spending $1.25 million protecting nearby wetlands. But now the company — and other U.S. power producers — may have gotten the last laugh.
The Trump administration this year completed a long-debated rewrite of the Clean Water Act that drastically reduces the number of waterways regulated by the federal government. A little-noticed provision for the first time classifies “cooling ponds” as parts of “waste treatment systems” — which are not covered under the law.
The U.S. Environmental Protection Agency and the power industry describe it as a clarification with little realworld effect. But environmental groups challenging the Trump rule in court say it opens up reservoirs like Sutton Lake to similar abuse.
“These lakes are sources of food, drinking water, recreation and property values for surrounding communities,” said Frank Holleman, an attorney with the Southern Environmental Law Center. “They’ve been protected under the Clean Water Act ever since it’s been adopted, all the way back to Nixon. No responsible adult would have stripped away these protections.”
The provision on reservoirs is an example of “hidden bombs” that could lurk in the new regulation’s fine print, said Mark Ryan, a former EPA attorney who helped craft the Obama administration’s clean-water rule that was replaced by the substantially weaker Trump version.
“Congress needs to fix this, or it will be tied up in litigation forever,” Ryan said.
The 1972 law requires developers, factories and others who use navigable waters to get permits specifying how much pollution can be discharged or wetland acreage filled. State regulators and the EPA monitor compliance and punish violators.
Disagreement over which waters are under federal jurisdiction has produced Supreme Court rulings and regulatory tinkering. But cooling reservoirs for power plants were covered until the Trump rewrite, Holleman said.
No complete list of such reservoirs is available, but at least a dozen manmade lakes appear to be vulnerable now, said Blan Holman, also an attorney with the Southern Environmental Law Center. Some cover thousands of acres, are prized boating and fishing spots, and have shorelines dotted with houses.