PennFuture Blog

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PennFuture Opposes Any Repeal of the Clean Water Rule

by Abigail M. Jones, Staff Attorney

Today, PennFuture submitted public comments urging the Trump Administration not to repeal the federal Clean Water Rule. Repealing the Clean Water Rule would threaten Pennsylvania’s clean water, outdoor economy, and safe drinking water for millions of citizens. 

One of the most important aspects of the Clean Water Rule is its protection of the sensitive, smaller waters critical to safeguarding water quality and wildlife throughout Pennsylvania. Small headwater streams and wetlands provide the greatest connections between land and water, trapping and storing nutrients, providing critical habitat, storing floodwaters, contributing to drinking water supplies, and filtering out pollutants. These streams are essential to protect drinking water; in Pennsylvania 58% of the streams that provide water for surface water intakes that supply public drinking water are intermittent, ephemeral, or headwater streams. But just as importantly, headwater streams have biological, chemical, and hydrologic connections to downstream waters. Scientific studies repeatedly demonstrate that the health of downstream lakes, rivers, and estuaries are directly tied to the health of their smaller headwater streams and wetlands.  Leaving these critical headwaters vulnerable to pollution puts the health of all of our rivers and the communities that depend upon them at risk.

Case in point: according to a recent analysis, repealing the Clean Water Rule would result in a loss of Clean Water Act protections to 55% of all stream miles in the Delaware River Watershed. These intermittent, ephemeral, and headwater streams in the Delaware River Watershed provide not only clean drinking water but are also spots for outdoor recreation and esthetic enjoyment of the natural environment. A repeal of the Clean Water Rule would put all of this at risk.

And although Pennsylvania has the Clean Streams Law, which protects the “waters of the Commonwealth,” this federal Clean Water Act jurisdictional issue can directly impact water quality protections in Pennsylvania.

For example, Section 401 of the Clean Water Act requires that any federally-permitted project that may discharge into a “navigable waterway” (the definition of which includes “waters of the United States”) cannot proceed unless the state certifies that the discharge will not violate state water quality standards.  Quite simply, should the federal government narrow the definition of “waters of the United States,” smaller but ecologically important streams and wetlands, which likely suffer greater impacts from these projects than larger waters, will lose this protection under the Clean Water Act.  An important aspect of the 401 Water Quality Certification process is that states may deny a certification or impose conditions as part of its certification to ensure that the applicant complies with any applicable state law. These conditions then become a part of the federal permit.  If a project avoids the need for state certification because the federal government narrows the definition of “waters of the United States,” the states lose this ability to protect their waters by either denying the certification and halting the project or imposing federally-enforceable conditions to ensure that the project will not harm state water resources.

Additionally, and as a very practical matter, this loss of clear protection at the federal level for these critical headwaters and wetlands could result in the future weakening of protections in Pennsylvania as well, especially where the state environmental regulatory agency is so underfunded and under-staffed.   
PennFuture’s comments made clear that we will not accept any repeal of the Clean Water Act protections that keep our waters, our economy, and our communities healthy. 
Background

Promulgated in 2015, the Clean Water Rule clarified the definition of “waters of the United States” under the federal Clean Water Act, and notably extended clean water protections for small, intermittent and ephemeral streams and wetlands that had a “significant nexus” to traditionally navigable waters.  

The 2009 United States Supreme Court split decision in Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”) left regulators and the regulated community confused about which waters fell under the Clean Water Act’s jurisdiction because a majority of the Supreme Court did not agree on a definition of “waters of the United States.”  The Clean Water Rule sought to clarify this confusion by adopting a definition of “waters of the United States” that was consistent with Supreme Court Justice Anthony Kennedy’s opinion in Rapanos, which protected any waters that had a “significant nexus” to navigable streams.  

In adopting the Clean Water Rule, EPA engaged in an almost 7-month public comment period, met with over 400 stakeholders, and received over one million comments on the proposed rule, with over 87% of them in favor of the agencies’ proposal.  More than 50,000 Pennsylvanians supported the Clean Water Rule, including business owners, local officials, farmers, and health professionals.  

PennFuture strongly supported the Clean Water Rule because it not only protected the larger streams used directly for drinking water by millions of Pennsylvanians -- it also protected sensitive headwater streams and wetlands that makeup thousands of miles of streams in the Commonwealth.

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