The Ohio river running between Ohio and West Virginia
Credit: Stihler Craig / U.S. Fish and Wildlife Service / Wikimedia Commons

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Ohio coal interests welcome the Trump administration proposal to narrow the definition of federal waters.

Proposed changes to rules under the Clean Water Act would expose Ohio waters to greater risk from coal mining, according to environmental advocates.

The Dec. 11 proposal would limit federal protection by changing the definition of “waters of the United States,” or WOTUS, to exclude many wetlands and streams whose flow depends on rainfall.

Ohio’s coal industry welcomes the new rule, which “reopens the door” to argue that a given small stream doesn’t fall under the law, said attorney Trent Dougherty of the Ohio Environmental Council.

What would the proposed rule do?

The Environmental Protection Agency and Army’s proposed rule would limit protections to six categories of waters, including traditional navigable waters, their tributaries, certain ditches, some lakes and ponds, some impoundments of covered waters, and wetlands next to covered waters. The proposal would exclude so-called ephemeral streams that flow mainly after heavy rains or snowmelt, as well as some other water bodies.

A map displays the pattern of different surface water feature types across the state of Ohio, including perennial, intermittent and ephemeral streams. (click to enlarge)

Language in the proposal also invites comment on whether to exclude intermittent streams that don’t flow steadily year round. “Many Ohio communities get their drinking water from intermittent streams to fill their reservoirs,” especially in Southeast Ohio’s coal country, said natural resources policy advocate Kristy Meyer, also at the Ohio Environmental Council.

How can coal mining affect streams and wetlands?

“Surface mining is a bigger problem than underground mining as it relates to this rule rollback because of the numbers of acres impacted and the number of stream miles that surface mining fills and degrades,” Dougherty said.

Surface mining can cut into stream and wetland areas. It can fill those areas with material dug up from other areas. And it can degrade streams and wetlands by subjecting them to pollution through runoff.

“The issue with underground mining deals more with dewatering a stream or wetland than outright pollution,” Dougherty added. For example, activity underground can cause the water table to drop so that the stream no longer flows on the surface. “While the impact is different, it should be treated in the same manner since the resource is destroyed either way,” he said.

What’s the status of the current WOTUS rule?

Under the 2015 rule, waters of the United States include any waters with a significant nexus to traditional navigable waters, interstate waters or territorial seas.

However, that rule’s implementation was delayed while the Supreme Court decided which courts should hear challenges from coal interests, farm groups and others. Meanwhile, after a February 2017 executive order from the Trump administration, the Environmental Protection Agency and Army proposed rescinding the 2015 rule. They announced the proposed replacement on Dec. 11.

For now, an August 2018 court decision lets the broader 2015 rule apply in 26 states, including Ohio, Michigan, Iowa and Illinois. Implementation is still stayed for the remaining 24 states.

Longwall underground mining.

How would the proposed rule help the coal industry?

Acting EPA administrator Andrew Wheeler has said the proposal’s “simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

The 2015 rule had caused uproar from the coal industry, farmers and some other groups.

“Certain naturally-occurring water features are ubiquitous in the Appalachian coalfields,” and mining activities frequently involve those areas, according to comments from Murray Energy Corporation on the rule’s proposed rescission last year.

The Trump administration’s new proposal “addresses all the major legal and technical flaws that we previously identified” with the 2015 rule, said Jason Witt, assistant general counsel at Murray Energy. The exclusion of ephemeral streams is especially significant for the company’s longwall underground mining, he added, noting that Pennsylvania’s interpretation of prior law had led to the closing of its subsidiary’s High Quality Mine in southwestern Pennsylvania in 2004.

Ohio’s coal industry currently mines roughly equal tonnage from surface and underground mines, said Ohio Coal Association President Mike Cope. In his view, the 2015 rule “was just another way to make coal less competitive. The new definition will bring costs down.”

What are the risks from the new rule?

“In general, reducing federal protections for the waterways that provide safe, clean drinking water will put a greater burden on already stressed community water systems and state environmental resources that may not be able to fill in the gap,” said attorney Madeline Fleisher at the Environmental Law & Policy Center.

Wetlands filter runoff from farms after big rainstorms, which is a main cause of harmful algal blooms, Fleisher noted. “Those big rainstorms are only becoming more common due to climate change, making these wetlands more important than ever.”

Loss of wetlands will also lead to more extensive flood damage, and nutrient pollution also hurts American fisheries, said Todd Gartner, director for natural infrastructure at the World Resources Institute.

The new proposal would also end protection for various streams that don’t flow year round. Before the 2015 rule, up to 70 percent of Ohio’s stream miles and wetlands could have been at risk, according to Meyer. As she sees it, the new rule would revive that risk, especially in Ohio’s coal-producing areas.  

What’s next?

Members of the public will have 60 days after publication in the Federal Register to submit comments on the proposed rule. EPA and the Army will also hold a listening session on the proposal in Kansas City on Jan. 23.

If finalized, the rule would be yet another step in the Trump administration’s program of rolling back environmental regulations adopted by the Obama administration.

“The Midwest’s freshwater resources are one of our greatest assets, especially as climate change drives drought and water scarcity in other regions,” Fleisher said, “and we should maintain the clean water protections that got us here.”

Kathiann M. Kowalski

Kathi is the author of 25 books and more than 600 articles, and writes often on science and policy issues. In addition to her journalism career, Kathi is an alumna of Harvard Law School and has spent 15 years practicing law. She is a member of the Society of Environmental Journalists and the National Association of Science Writers. Kathi covers the state of Ohio.