EPA and Corps of Engineers Leave Waters Unprotected

By John McFerrin

            The United States Environmental Protection Agency and the United States Army Corps of Engineers have narrowed the definition of the “waters of the United States” (WOTUS) under the Clean Water Act.  In doing so, they eliminated protection for hundreds of miles of United States waterways and wetlands that had been protected.

            This is the latest development in an ongoing controversy that has been going on since the federal Clean Water Act passed in 1972.  That Act prohibited discharge of pollution into the “waters of the United States.”  The Act left unsaid what exactly that phrase covered.

There was no doubt that rivers and major streams were covered.  The trickier part comes in figuring out how far beyond major rivers and streams the jurisdiction of the Clean Water Act extended.  Big rivers are just the sum of smaller tributaries and the discharge of groundwater.  The smaller tributaries are just the sum of even smaller waterways, including some that don’t run all the time (called ephemeral streams). Sixty percent of streams are dry for part of the year but then connect when it rains. Any pollution dumped into those waters could affect key ecosystems. Should they be protected?

Then there were wetlands.  Some are adjacent to major rivers; some drain to larger rivers, or even not so large streams and rivers.  Most are hydrologically connected to larger bodies of water.  What about them?  Are they “waters of the United States”?

There have been various attempts to clarify the term, including some by the United States Supreme Court.  The most recent (before now) was in 2015. For a more detailed discussion of the rule and its history, see the January, 2019, issue of The Highlands Voice.

Now the Environmental Protection Agency and the Corps of Engineers have issued a new rule narrowing the definition of “waters of the United States.”  Nationally, the proposed rule removes protections for millions of acres of wetlands and small streams.  In West Virginia, we are particularly concerned withprotections for headwater streams, including intermittent and rain dependent streams.  It makes a difference in the regulation of mountaintop removal mining.  Some of the streams that are being filled are headwater streams that would no longer be protected under the proposed rule.

West Virginia is the headwaters for two of America’s great rivers, the Ohio and the Potomac. Togetherthese rivers provide drinking water, as well as water for business and recreation, to millions of Americans.Because these headwaters are the originating source water for so many states and their people, there is afederal role to protecting these headwaters.  The proposed changes could put many of these waters at further risk.

Over half of West Virginia’s 1.8 million residents rely on public water systems for their drinking waterthat originates in part in intermittent, ephemeral or headwater streams. These are the very types of streamswhich would not be protected under the proposed rule.  

            The new rule is the final step in a long rulemaking process.  Like all major rules, this one had to be made available for public comment.  Many, many people (including the West Virginia Highlands Conservancy) opposed the new rule.

            In spite of all of the opposition, this outcome was as predictable as the ending of a Hallmark movie special.  President Trump campaigned on narrowing the protections of the Clean Water Act.  He had been in office for a month when he made an Executive Order directing this change.   The EPA and the Corps went through the motions but the ending was pre-ordained.

            Another predictable result: there will be litigation.  Stay tuned.