Changes to the Clean Water Rule Have Big Impacts on the Ground

By Kurt Fesenmyer

High in the headwaters of Back Creek in the Blue Ridge Mountains of Virginia are several small streams that only run after it rains. 

Those “ephemeral” tributaries to Back Creek, a wild brook trout stream that also holds browns and rainbows, intersect with the proposed 600-mile route of the Atlantic Coast Pipeline, a project that would transport natural gas from central West Virginia up and across the Appalachians to the East Coast in Virginia and North Carolina. 

This is an ephemeral tributary to Snakeden Branch of Difficult Run, an important Potomac River tributary in Fairfax County, Va.

Last week, the Environmental Protection Agency announced a new rule that will remove Clean Water Act protections for as much as six million miles of “ephemeral” streams, along with millions of acres of wetlands—a rollback to levels not seen in generations. 

The little Back Creek headwater tributaries provide perfect examples for understanding what is at stake with this decision. 

Permitting under the Clean Water Act is designed to help avoid, minimize, and mitigate the risks of pollution from development projects, such as those documented by Trout Unlimited volunteers for a recently released report.

Pipeline construction involves clearing land, moving earth and trenching through or drilling under streams and wetlands—all of which can have lasting impacts to downstream water quality and fisheries.

Take, for example, the 2 million gallons of drilling mud contaminated with diesel fuel spilled into an Ohio wetland in 2017. Or the widespread sedimentation events that smothered streams following rains on recent pipeline construction sites across central Appalachia.  

The proposed Atlantic Coast Pipeline crosses 23 tributaries above Back Creek. Eighteen of the crossings are on “perennial” or “intermittent” streams, streams that flow year-round or seasonally due to springs, elevated groundwater levels, or snow melt. These streams will remain protected under the EPA policy. 

But five adjacent ephemeral streams will lose protection—despite the fact that they still deliver water and nutrients—and potential pollution—downstream into Back Creek after rains.  

A report commissioned by Trout Unlimited documents a number of pollution events related to pipeline construction in the East. The elimination of Clean Water Act protections for ephemeral streams will impact permitting requirements for such projects and could further increase risks of such massive infrastructure projects. 

That water then flows into the South, South Fork Shenandoah, Shenandoah and Potomac rivers, crossing three states and the District of Columbia on its way to the Chesapeake. Along the way, those waters pass by some two million people in 30 towns and cities, provide habitat for trout, smallmouth bass, striped bass, and oysters, and support outdoor recreation, from angling to boating to swimming. 

Trout Unlimited and our partners have invested millions to improve the water quality in the watershed. 

“A Nation’s River,” a Trout Unlimited film, highlights work TU and partners are doing in the Potomac River watershed. 

We know that those five streams—along with 77 other stream crossings in the path of construction—are ephemeral waters that will lose protection, because a survey crew for the pipeline company walked the route and classified the streams. They found no flowing water, but evidence of clearly defined beds, banks, and high water marks. For issuing permits and determining Clean Water Act jurisdiction, ground surveys like these are the only way to identify the individual streams subject to the rule. 

But national maps are available for evaluating the landscape-scale scope and potential impacts of the new rule across the country.  EPA chose not to use these maps, effectively declaring a new rule with no consideration of the scope or potential impacts of the change. 

Last year, Trout Unlimited analyzed the U.S. Geological Survey’s National Hydrography Dataset and topographic maps to try to understand what would happen under the new policy. These are the best available maps for identifying streams, and while they cannot be used to say whether a particular water will be protected or not by the Clean Water Act, they can help us reach broad conclusions about national coverage of federal regulations. 

Crews in Ohio work to address the aftermath of a pipeline spill. Pipeline paths cross many ephemeral streams, and removing Clean Water Act protections to such streams will exacerbate risks to larger streams. 

Our research suggested that more than six million miles of streams—half of the U.S. total—will lose Clean Water Act protections, since they only run after rain or snow events.   

In arid Southwestern states like Arizona, the proportion of streams losing protections likely exceeds 80 percent. 

Ephemeral streams like the tributaries to Back Creek flow into every watershed. To explore the pattern of ephemeral streams in your local watershed, and learn more about what you can do to protect clean water, visit TU’s Standup website. TU is continuing the fight against this move by the EPA to weaken the Clean Water Act. 

As Chris Wood, TU’s president and CEO, put it last week, “Headwaters and wetlands are some of the most important components to our network of streams and rivers. They’re like the capillaries in our bodies. If they’re unhealthy so is everything else. Americans should not, and will not, allow our water to be jeopardized in this way.” 

Note:  The Highlands Voice has had several stories on the narrowing of the Clean Water Act, including the February, 2020 issue.  This focuses on how it affect fish.  It first appeared in Trout, the publication of Trout Unlimited.  To see the story, go to  The original story has links to several sources of additional information.  It also has pictures; two of the pictues are related to pipeline construction.  Instructive but not much fun to look at.