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We bring to you another update in the decades-long saga of protecting “waters of the United States” (WOTUS) under the federal Clean Water Act, but this time it is a positive step toward renewing federal jurisdiction over some of our most critical streams and wetlands that were stripped of protection by the Trump Administration in 2020.
Since the United States Supreme Court’s 2006 split decision in Rapanos v. United States, there has been uncertainty and litigation over what waterbodies classify as WOTUS and therefore will fall within the Clean Water Act’s protections. PennFuture joined over 50,000 Pennsylvanians in supporting the 2015 Clean Water Rule that attempted to bring clarity to the definition of WOTUS. And we vigorously opposed the Trump Administration’s repeal and replacement of the Clean Water Rule with the 2020 Navigable Waters Protection Rule, more correctly known as the “Dirty Water Rule.” Despite numerous legal challenges across the nation which lead to a patchwork of rules, as of March 2021, the Dirty Water Rule is in effect in all 50 states.
On June 9, 2021, however, the Biden administration formally began the process to repeal and replace the Dirty Water Rule, which reduced the number of water bodies that would be protected by the Clean Water Act by twenty-five percent and was determined to have led to significant environmental degradation, with thousands of streams and hundreds of permits at jeopardy. Across the country, thousands of wetlands and waterways that maintain water quality and drinking water sources and protect nearby communities from flooding have already been destroyed as a result of the Dirty Water Rule.
The Dirty Water Rule excludes ephemeral waters (temporary water bodies that only occur after precipitation) and wetlands that are not physically connected to a navigable water body by a visible surface connection. The rule is not based on science and greatly benefited the oil and gas industry and developers by allowing them to fill in wetlands and streams without a permit. The reality is that wetlands are extremely important natural filters that protect waterbodies, whether they are visibly connected by a continuous surface connection or not. Ephemeral waters play crucial ecological and hydrological roles in maintaining water quality and watershed function and health, and are particularly important in the southwestern states. The EPA’s own data shows that ephemeral waters provide drinking water to 117 million Americans.
The new rule will aim to restore protections and establish a durable definition of protected waters. EPA’s news release explained that the new rule will be informed by Supreme Court precedent, lessons learned from current and previous regulations, and stakeholder engagement. Additionally, it will be guided by considerations to protect water resources and communities, science and the effects of climate change to national waters, and efforts for practical implementation in states and Tribal communities. The Dirty Water Rule, by contrast, was admonished by EPA’s own science advisors as being in conflict with established science and the objectives of the Clean Water Act.
And some of the impacts from the Dirty Water Rule are already being felt locally by threatening restoration efforts of the Chesapeake Bay Watershed because excluded waters feed into the Chesapeake Bay. The Choose Clean Water Coalition, a coalition of organizations that advocate for clean rivers and streams in the Chesapeake Bay region of which PennFuture is the PA State Lead, released a statement supporting the EPA’s decision to revise the current rule and also urge them to replace it with one that restores protections to waterways and wetlands.
Stakeholders are encouraged to share their input during the rulemaking process. Information on opportunities for public engagement are forthcoming and PennFuture intends to engage in this process to ensure full protections of our critical headwaters and wetlands. Become a PennFuture member today to stay informed and get engaged!
More information on the Dirty Water Rule: