NASHVILLE, Tenn. -- The U.S. Environmental Protection Agency has finalized a new rule, saying it clarifies which types of waterways are protected under the Clean Water Act and which are not.

The Navigable Waters Protection Rule, released last week, redefines the term "waters of the United States" to exclude wetlands, streams and other small water bodies from strict pollution controls. The change replaces a 2015 rule with a broader definition.

Kathy Hawes, executive director of the Tennessee Clean Water Network, said the rollback will make it harder for states to control water pollution.

"What this EPA has done is, without any scientific evidence, they've announced a rollback that says that pretty much all isolated wetlands and ephemeral streams are not going to be covered under the Clean Water Act," she said, "which means that the states have no power to enforce water-quality protections."

She said the new rule will make it easier for developers or construction companies to acquire permits for projects that destroy wetlands. The EPA has maintained that the change ends "decades of uncertainty" over which waterways fall under federal protection.

Hawes said most smaller water bodies are connected to larger ones, adding that if more pollution ends up in streams and tributaries, it's going to seep into communities' drinking-water sources.

"You can't ensure water quality in a major river if you can't enforce water-quality protections in those streams," she said. "It's just going to pour that pollution right into the major water body."

Hawes said the new rule would give property owners and developers the green light to use fertilizers, industrial chemicals and other pollutants in or near waters that no longer are protected under the Clean Water Act.

Hawes said she believes the public hasn't had enough time to digest the implications of a series of speedy EPA rollbacks to numerous environmental regulations.

"A lot of times, the response times that they give you - it's a 60-day comment period and then boom, it's done," she said, "and before you can read through all the changes and interpret them and put them into layman's language, it has happened and it is over."

The EPA is planning to hold a webcast to help explain the new rule on Feb. 13.

The rule change is online at epa.gov.


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Watchdog groups said the West Virginia Department of Environmental Protection seems poised to allow coal company Keystone West Virginia to walk away from its obligation to treat acid mine drainage at a 160-acre surface mine near Marmet, in Kanawha County.

When a company is done mining and is done doing required reclamation work, it will ask the state to return the bond money given when it received its permit to mine. But in this case, the company has not done the cleanup.

Chad Cordell, coordinator for the Kanawha Forest Coalition, said the company has been involved in numerous complaints related to water pollution in Lens Creek.

"This is really a push where we're telling the DEP, not only do you need to not grant this bond release, but you really need to start enforcing the water quality laws and get this company to deal with this water pollution," Cordell outlined.

Keystone West Virginia has been plagued with regulatory problems and lawsuits. The mine the company is seeking for bond release has received 36 notices of violations and 12 cessation orders since it was first permitted, according to the coalition.

Cordell added decades of research and lived experience from residents show the high levels of heavy metals from acid mine drainage, which color the water a coppery brown, can cause permanent damage to drinking water quality, local infrastructure including bridges, public water and power plant supplies, and public health.

"There's really no debate about that at this point," Cordell contended. "We know that there are all sorts of health impacts from these mines. A lot of that is connected to the water impacts of these mines."

There are roughly 400 miles of freshwater trout streams in West Virginia that are impaired because of increased acidity levels from acid mine drainage, according to the West Virginia Water Research Institute.


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Many residents of southern West Virginia say the water flowing out of their taps is a brown or orange color and most continue to rely heavily on bottled water as a result.

Advocates want lawmakers to funnel more federal funds toward water and wastewater infrastructure projects in the region.

Natalia Rudiak, director of special projects for the nonprofit ReImagine Appalachia, said many residents drive miles to collect spring water or spend up to $100 a month on bottled water. She asserted Mountain State lawmakers are spending money distributed from the American Rescue Plan Act on other projects, instead of addressing the issue.

"That funding, millions of dollars, has gone into upgrading a baseball field at a university; it has gone to an entertainment center; it has gone to an out-of-state university in Ohio," Rudiak contended.

According to recent investigative reporting by the Gazette-Mail, the state's Water Development Authority has allowed more than $80 million of funds to be used for projects unrelated to water or sewage infrastructure.

An online petition by the West Virginia Rivers Coalition, the West Virginia Faith Collective and the coalfield advocacy group From Below is asking lawmakers to declare a state of emergency in order to provide residents with clean drinking water until proper infrastructure is in place.

Rudiak pointed out those who depend on well water or springs are also at risk.

"One of the health issues that we are seeing is people are getting sick from spring water that they're using," Rudiak observed.

The southern coalfields' water crisis has been exacerbated by recent storms and severe flooding. Rudiak pointed to recent flooding in which least two people died and tens of thousands were left without power.

"Unfortunately, the folks of southern West Virginia can't catch a break," Rudiak emphasized. "They've been hit by catastrophic flooding that is damaging main streets, and businesses, and homes."

According to a report from the West Virginia Office of Environmental Health Services, 65 water systems across the state are operating in marginal condition and 15 are classified as failing.


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Some Kentucky lawmakers want to weaken protections for waterways many residents depend on for drinking water.

Senate Bill 89, that would narrow the definition of which waters in Commonwealth are protected, has passed the Senate and is now in the Kentucky House.

A few years ago, the U.S. Supreme Court issued a ruling that severely weakened the federal government's abilities to regulate water bodies and wetlands.

Supporters of the Kentucky bill say it falls in line with that decision and would eliminate mining industry permitting barriers.

But it could also pose public health risks for drinking water, said Kentucky Sierra Club Chapter Director Julia Finch.

"So that's really what we're concerned about," said Finch. "We don't want to see any kind of restriction of that definition that would end protections for other water systems, including our groundwater."

According to the Kentucky Geological Survey, more than 1.5 million residents are served by public water systems that rely on groundwater, and about 416,000 rely on wells or springs for water.

Lacking guardrails, water treatment costs could potentially increase.

Finch explained that local public water systems depend on the state to regulate and monitor pollution in streams and rivers that are used for drinking water.

"If we're talking about drinking water," said Finch, "there could be additional water treatment that has to occur, then that cost could then go directly to customers."

Finch pointed out that Kentucky is home to several Superfund and other industrial sites, and noted that some of those sites would no longer have to consider groundwater protections during the cleanup process.

"That's really scary," said Finch, "because Superfund sites are some of our most polluted and deadliest sites."

Under the bill, dumping pollution into headwaters or rain-dependent streams - also known as ephemeral streams - would no longer be prohibited, and the state would lose its ability to limit water pollution or require sampling for these types of waters.

Around 65% of Kentucky's more than 79,000 miles of streams and rivers are ephemeral, according to Environmental Protection Agency data.