By John McFerrin
The West Virginia Highlands Conservancy, along with the West Virginia Rivers Coalition and several other groups, has commented on the latest proposal to restrict the coverage of the federal Clean Water Act. If the proposed restrictions become final, it will result in a loss of protection for most headwater streams and many wetlands in West Virginia, as well as in the rest of the country.
The controversy is about a definition in the Clean Water Act. The Act prohibits discharges (including filling) to the “waters of the United States.” Everybody agrees that this includes major rivers and streams. The controversy is over how far beyond those rivers and streams protection extends. Most at risk are ephemeral streams (those that do not run year round); in West Virginia that means headwater streams, including those affected by mountaintop removal. Also at risk are wetlands that are not directly adjacent to a substantial stream.
This fight has been going on with greater or lesser intensity since the Act was passed in 1972. It has included various versions of a definition as well as at least two reviews by the United States Supreme Court.
Many thought it was settled in 2015 when the Obama administration looked at the Supreme Court decisions, reviewedsome 1200 scientific papers, received thousands of comments, and produced a 400 page document justifying a clarified definition of “waters of the United States.”
While many might have thought it was settled, we had an election and the new administration had a different idea. It proposed a new definition that narrows the protections of the Clean Water Act. Most notably, it would eliminate protection for most headwater streams and for wetlands that are not adjacent to or directly connected to a navigable stream.
For a longer version of the history, see the January, 2019, issue of The Highlands Voice.
What the comments say
Much of the comments focus on the extent of the problem in West Virginia that would be caused by the proposal. They refer to Environmental Protection Agency data that 60 per cent of streams in West Virginia have no streams that flow into them and 37 per cent of streams do not flow year round. It is likely that these estimates understate the number of such streams in West Virginia that would lose protection under the proposed changes. The estimates only include streams which have been mapped and do not include multiple smaller drainages which would also be left unprotected under the proposed rule.
Wetlands would also be left unprotected. Under the most recent rule (the 2015 version), a wetland only had to have a “nexus” to a perennial or intermittent stream. The “nexus” language comes from a United States Supreme Court case in which the opinion uses that term. (Note: You know it had to be from the Supreme Court. An ordinary person would say “connection” while the Supreme Court thinks “nexus” sounds more judgely.) That “nexus” requirement was widely assumed both in previous versions of the regulations and in the scientific literature to include a groundwater or other connection, not just surface flow.
The proposed regulations would not protect wetlands unless they are adjacent to a stream or connected by a direct surface flow to a perennial or intermittent stream. Even if the wetlands are part of the same surface and groundwater system as a perennial or intermittent stream, they would not be protected. The scientific data which the EPA had assembled and reviewed before enacting the 2015 version of the waters of the United States definition (the one that would be replaced) recognizes that waters can be connected in five different ways: hydrologic, chemical, physical, biological, ecological. The proposed definition does not recognize this science, limiting connectivity to direct, physical water flow.
The result of the definition change would be dramatic. The comments estimate that anywhere from 30 to 60 per cent of the wetlands in West Virginia would lose protection.
The comments also make the connection between the proposed changes and human health. When headwater streams and wetlands lose protections, access to clean drinking water is threatened. The comments cite Environmental Protection Agency estimates that over 1 million West Virginians depend on drinking water that comes from areas containing streams that could lose Clean Water Act protection if the proposed amendment becomes final. In addition, wetlands provide a critical ecosystem function of retaining and filtering water. Removing protections for approximately half of the state’s wetlands leaves areas vulnerable to increased flooding and reduces the environment’s natural ability to improve water quality.
EPA has received thousands of comments on the proposed changes. It will now respond to those comments; responses are usually made by categories of comments, not individually. Once EPA responds to comments, it will publish a final rule. With as many people as there are who are interested in this rule, litigation will almost certainly follow.