The West Virginia Highlands Conservancy has joined with four other West Virginia Groups (including our member groups, the Shavers Fork Coalition and the West Virginia Rivers Coalition) in a letter urging the United States Environmental Protection Agency to leave in place the current rule defining the “waters of the United States.” This rule, which is often called the Clean Water Rule, determines what protections small and headwater streams would receive under the Clean Water Act.
The federal Clean Water Act prohibits the pollution of water or, more precisely, the “waters of the United States.” There has been an ongoing controversy over what that phrase means. Everybody agrees that big rivers (and even little rivers) are protected. The controversy is over small streams. For decades there was confusion, litigation, and debate over what waters were protected. Questions arise over whether the water in tiny headwater streams that are important to the whole water system is protected.
Finally, in 2015, the U.S. Environmental Protection Agency and the Army Corps of Engineers issued a rule which clarified that tens of millions of acres of smaller waterways across the United States were, in fact, “waters of the United States” and, thus, eligible for protection under the Clean Water Act.
The term has even acquired its own jargon. When the Environmental Protection Agency or the United States Army Corps of Engineers talks about “jurisdictional” waters, they are talking about waters which are “waters of the United States.” Being waters of the United States, they are within the jurisdiction of the agencies, making them legally bound to protect them.
In February, 2017, after several unsuccessful Congressional attempts to alter the rule, President Trump issued an Executive Order, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States’ Rule.”
The executive Order started the EPA and the Corps on a two step process. First, it will take us back to the definition of “waters of the United States” that was in effect before the 2015 rule. Next, it would make a new definition. If this happens, it will end protection for the tiny headwater streams that are so common (and so important) in West Virginia.
What the Groups Say
In their letter, the West Virginia groups made these points:
As West Virginia organizations who seek protection of our state’s water resources, we believe that clean local streams and rivers are the foundation for strong communities, a vibrant economy, and a healthy population. We write in strong opposition to the Environmental Protection Agency’s (EPA) and Army Corps of Engineers’ (Corps) proposal to repeal the 2015 Clean Water Rule – a popular, much-needed, and carefully-developed action taken to protect the nation’s waters from pollution and destruction. We also oppose your plan to weaken decades-old safeguards via a subsequent rulemaking action. These rollbacks, which President Trump initiated by signing Executive Order 13,778 on February 28, 2017, recklessly target waterways upon which we all rely.
We are particularly concerned with protections for headwater streams, including intermittent and rain dependent streams. West Virginia is the headwaters for two of America’s great rivers, the Ohio and the Potomac. Together these 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 a federal role to protecting these headwaters. We expect the federal government to faithfully abide by and enforce the Clean Water Act in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Repealing the Clean Water Rule could put many of these communities at further risk.
Over half of West Virginia’s 1.8 million residents rely on public water systems for their drinking water that originates in part in intermittent, ephemeral or headwater streams. These are the very types of streams which have been the subject of unnecessary litigation and uncertainty, arising from Supreme Court decisions and subsequent agency guidance that had previously caused confusion in implementing the Clean Water Act in West Virginia. The regulatory confusion hampered the ability of West Virginia to uphold Clean Water Act protections with regard to administering the disposition of mining waste into headwater streams, water withdrawals in the natural gas industry, and waste management in concentrated animal feeding operations. A lengthy, deliberate, and inclusive process led to the 2015 Clean Water Rule, a rule protective of vital waterways and based in sound law and sound science.
The letter ends with a request that the 2015 Rule be left in place.