Wetlands, Headwater Streams Losing Protection?

By John McFerrin

The United States Environmental Protection Agency and the United State Army Corps of Engineers have unveiled a proposal to reduce the waterways and wetlands that are protected from pollution.  It proposes to do this by adopting a revised definition of “waters of the United States”, the term the Clean Water Act uses to describe what waters are protected.


Short version

We’ve been fighting for over forty years about how far the coverage of the Clean Water Act extends.  President Trump just fired another shot.

Long version

This all started in 1972 with the passage of the federal Clean Water Act. That Act prohibited discharging pollution into the “waters of the United States.”

It left undecided exactly which waters were covered.  Of course it covered big rivers, rivers like the Cuyahoga in Ohio.  Its catching on fire in 1969 was one of the things that embarrassed us into passing the Clean Water Act in the first place; it had to be covered.  Nobody disputes that rivers such as it and substantial rivers and streams are “waters of the United States.”

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”?

The Environmental Protection Agency and the Corps of Engineers did regulations that tried to describe what waters were covered by the Clean Water Act. Even with regulations and guidance, it still seemed as if determinations of what were “waters of the United States” were on a case by case basis.

Even the United States Supreme Court got into the act.  In 2001 and 2006 it considered the question of what the phrase “waters of the United States” meant and came away with two and a half answers. As with many Supreme Court cases, this one produced multiple opinions.  Some justices said the EPA could regulate any place where water flowed at any point in the year.  Others supported a more narrow definition.  On wetlands, some thought that there had to be a continuous surface flow to a substantial steam before EPA could regulate it.  In what was taken to be the deciding vote in one of the cases, Justice Kennedycalled for the rules to cover any wetlands with a “significant nexus” to those navigable waters—in other words, any wetlands that genuinely affect the waters of the United States the EPA has jurisdiction to protect.

Since the Supreme Court had not really clarified anything, the Obama administration undertook to clarify the rule.  It assumed that “significant nexus” was the standard and that the term was susceptible to a scientific definition.  It reviewed some 1200 scientific papers, received thousands of comments, and produced a 400 page document justifying a clarified definition of “waters of the United States.”

The final Waters of the US rule, published in June 2015, outlined which bodies of water were automatically covered by the Clean Water Act — requiring permits for discharges or dredging or dirt fill — and which ones still needed to be dealt with on a case-by-case basis. For instance:

  • In the past, tributaries of navigable rivers were evaluated on a case-by-case basis. But under the new rule, they’re automatically protected if they have a bed, a bank, and a high-water mark. This includes many streams that are dry for part of the year. Waterways without these features are still dealt with case by case.
  • Wetlands and ponds are now automatically covered if they’re within 100 feet or within the 100-year floodplain of a protected waterway. Otherwise, it’s case by case.
  • Certain “isolated” waters that are not connected to navigable waters now get automatic protection if they have a “significant nexus” to protected waters…

The rule also explicitly exempted a number of bodies of water often found on farms, such as puddles, ditches, artificial ponds for livestock watering, and irrigation systems that would revert to dry land if irrigation were to stop.

One man’s “clarification” is another man’s (or oil company, or real estate developer, or agribusiness) “federal overreach.”  Litigation ensued.  As a result, the 2015 rule never went into effect.

Candidate Trump jumped into the fray, calling the WOTUS (by then it had its own acronym, just like the big boys—FBI, IRS, FEMA) rule economy strangling, jobs killing, etc.  Barely a month after he became President Trump he issued an executive order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule”.  In it he directed the Environmental Protection Agency and the Corps of Engineers to review the 2015 rule and consider adopting the most restrictive of the options considered by the Supreme Court.

The EPA and the Corps have since suspending the 2015 rule until 2020.  By then they expect to have in place a rule that is more acceptable to President Trump’s constituencies.

Why this is important

            Nationally, the proposed rule removes protections for millions of acres of wetlands and small streams.  In West Virginia, weareparticularlyconcernedwithprotectionsforheadwaterstreams,includingintermittentandraindependentstreams. 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.

WestVirginiaistheheadwatersfortwoofAmerica’sgreatrivers,theOhioandthePotomac.Togethertheseriversprovidedrinkingwater,aswellaswaterforbusinessandrecreation,tomillionsofAmericans.Becausetheseheadwaters aretheoriginatingsourcewater forsomanystates andtheirpeople,thereisafederalroletoprotectingtheseheadwaters. The proposed changes could put many of these waters at further risk.

OverhalfofWestVirginia’s1.8millionresidentsrelyonpublicwatersystemsfortheirdrinkingwaterthatoriginatesinpartinintermittent,ephemeralorheadwaterstreams.Thesearetheverytypesofstreamswhichwould not be protected under the proposed rule.

The EPA website provides a Geographic Information Systems Analysis of the Surface Drinking Water Provided by Intermittent, Ephemeral, and Headwater Streams in the U.S. The national map is interesting and informative, as are the individual state maps and narratives. (http://water.epa.gov/lawsregs/guidance/wetlands/surface_drinking_water_index.cfm)

The narrative for West Virginia describes our dependence on these small streams for drinking water: “In West Virginia, 14,825 total miles of streams provide water for surface water intakes supplying public drinking water systems; of this, 8,387 miles, or 57%, are intermittent, ephemeral, or headwater streams. Over 1 million people in West Virginia receive drinking water from public drinking water systems that rely at least in part on intermittent, ephemeral, or headwater streams.”

Add to those numbers the many individuals who depend on surface water for their own private springs and cistern systems and the numbers are greatly increased.  These are the waters that would no longer be protected if the definition of waters of the United States is revised as proposed.

Where we are in the process

            Candidate, and now President, Trump has been talking about this for so long that it feels as if it should have already been done.  But it hasn’t.  Executive Orders are not rulemaking and rulemaking takes time.

The proposed rule was published in the Federal Register on December 28, 2018.  This starts a sixty day comment period.  There is a public hearing scheduled for January 23, 2019, in Kansas City, Kansas.

Anyone who can’t attend the public hearing can still submit comments.  The EPA’s preferred method for receiving comments is through the Federal eRulemaking Portal: http://www.regulations.gov.  To use that system you have to know the docket number:  Docket ID No. EPA-HQ-OW-2018-0149, to the.Follow the online instructions for submitting comments. All submissions received must include the Docket ID No. for this rulemaking.

To see all the documents related to this rulemaking, go to the Federal eRulemaking Portal: http://www.regulations.gov,Docket ID No. EPA-HQ-OW-2018-0149.

Once the EPA and Corps of Engineers have the public hearing and receive public comments the agencies will respond to the comments and publish a final rule.

Once the final rule is published there is always the possibility of litigation. Given the interests at stake and the number of people affected, it is doubtless more accurate to say the probability of litigation.