Colorado is asking the U.S. Environmental Protection Agency to significantly alter new Clean Water Act rules proposed by the Trump Administration, saying the new rules will leave thousands of miles of streams with fewer protections than they have had in nearly 50 years.
In comments submitted to the EPA last week, Colorado Attorney General Phil Weiser called for a halt to any rollback of protections for streams and wetlands, and said the new rules threaten Colorado’s ability to manage safely the waters that originate here in mountain headwaters and which eventually flow to 19 other U.S. states and Mexico.
“We don’t hate everything that is in the new rule,” Weiser said, such as the affirmation that states need to control their own waters and ongoing protection for farmers. “But these comments reflect critical concerns that need to be addressed.”
Weiser’s actions represent another major shift in Colorado’s relationship with the 1972 Clean Water Act (CWA).
In 2015, shortly after the Obama Administration approved a controversial expansion of the CWA, Colorado’s then-Attorney General Cynthia Coffman, a Republican, sued to stop the rules, along with 11 other states, winning an injunction that remains in place.
Now, under Democrat Weiser, the state has reversed course, pulling out of that 2015 lawsuit and seeking to stop the Trump Administration from dismantling key parts of the CWA and removing what they believe are important protections.
Dozens of environmental and policy groups in Colorado, fearful that the new rules will wipe out more wetlands and negatively impact thousands of small streams and aquatic areas which are crucial to the state’s watersheds, support Weiser’s actions. Among them are Trout Unlimited, Conservation Colorado, the Northwest Colorado Council of Governments, and the Theodore Roosevelt Conservation Partnership (TRCP).
Melinda Kassen is a longtime Colorado water attorney who now serves as general counsel to the TRCP. “Our constituents, hunters and anglers specifically, are about the most pro clean water of any constituency you could have. They want those habitats to be protected and clean and still there,” Kassen said.
Some water utilities and agriculture groups, however, are backing the 2019 proposed rules, though they believe more clarity will help make the act easier to administer.
“It’s huge for us,” said Taylor Szilagyi, spokeswoman for the Colorado Farm Bureau. “It’s not perfect, but generally we’re very supportive of it.” Szilagyi said the newly proposed rules remove much of the uncertainty that farmers have been forced to deal with over the years, including whether their irrigation ditches and canals are subject to the act.
The Colorado Water Congress, which represents some 400 water utilities and farmers and ranchers, also backs the proposed rules, anticipating they will make the water project permitting process faster, more predictable and less costly for members.
“The CWC is concerned with the predictability and certainty of whether a water body is subject to the Clean Water Act and in reducing costs and delays in obtaining CWA permits. The changes reflected in the proposed rules are generally welcome, but additional clarification is required…to achieve fully the predictability and certainty our members seek,” the Colorado Water Congress wrote in a letter submitted to the EPA on April 15.
The CWA has been legally hamstrung for years over murky definitions about which waterways fall under its jurisdiction, which wetlands must be regulated, what kinds of dredge and fill work in waterways should be permitted, what authority the CWA has over activities on farms and western irrigation ditches, and what industries and wastewater treatment plants can discharge to streams.
Administered by the U.S. Army Corps of Engineers and the EPA, the CWA is credited with making U.S. waters some of the cleanest in the world. But it has also been, at times, fiendishly difficult to administer, in part because the U.S. is home to widely different geographies.
Go to the East or Midwest, and massive rivers, such as the Ohio and Missouri, are filled with barge and shipping traffic and are clearly “navigable.” That was the term early courts used to determine how water would be regulated. If a stream was navigable, it was subject to federal law.
But Colorado and other Western states rely on shallow streams that don’t carry traditional commercial traffic. The United States Geological Survey estimates that 44 percent of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24 percent are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32 percent of Colorado streams are classified as being perennial, meaning they flow year round.
Under the new rules, only perennial and intermittent streams, or those deemed navigable, would be regulated, meaning that thousands of miles of streams in Colorado and other Western states would no longer be protected under the law.
Arriving at definitions that apply consistently across the country has been a tortured, and some believe, unsuccessful process. Still, by 2008 the EPA had arrived at a set of policy definitions, known as the 2008 guidance, that established better standards for defining when a stream was perennial, when it was intermittent, and when it was ephemeral. The same was true for better guidelines for wetlands. But significant inconsistencies within that guidance, due to conflicting legal opinions, remained, opening the door for the Obama Administration to simplify the act, and in doing so, include more waters and wetlands under the act’s protection.
Within months, industry groups successfully sued to stop the 2015 rules from being implemented.
The big question now is where to go from here. The Colorado Water Congress would like to see the newly proposed 2019 rules remain in place, with additional work done to clarify key aspects and obtain more consensus among the competing interests, according to Executive Director Doug Kemper.
Colorado is hopeful the EPA and Corps will, at the urging of many states, go back to using the 2008 guidance, rather than adopting the much looser guidance now being proposed. But few believe that will happen under the Trump Administration.
As a result, environmental groups expect they will be forced to sue to stop the new rules from taking effect, just as industry groups sued to stop the 2015 Obama Administration rules from being implemented.
“We will be part of the fight to try to stop any rules that leaves the duck factory and the prairie potholes of the central Midwest and headwater streams across the West and elsewhere unprotected,” Kassen said.
“But what we really need is change that can withstand political swings. The 2015 rules did not assuage critics, and it did not build lasting change,” she said.
Weiser isn’t ready to say whether Colorado would join a new lawsuit challenging the 2019 proposed rules.
“This regulatory system requires a difficult balancing act that addresses a range of interests and is mindful of the role of federal and state authorities,” he said. “It is really important that the Corps of Engineers and EPA take their time and think about the relevant issues and develop an approach that can last.
“If we end up moving back to the 2008 rules, which we would urge, I would hope it would be lasting because the extent of litigation and uncertainty around these rules isn’t healthy for anybody,” he said.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at email@example.com or @jerd_smith.
Fresh Water News is an independent, non-partisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org.
Clean Water Act Timeline
1948: Federal Water Pollution Control Act of 1948: Began using “interstate” rather than simply “navigable” waters to regulate pollution. Defines them as all rivers, lakes, and other waters that flow across, or form a part of, a state’s boundaries.
1972: 1948 act amended, becomes known as the Clean Water Act (CWA), expands jurisdiction over navigable waters, classifies them broadly as Waters of the United States (WOTUS). Congress says it intends that “navigable waters be given the broadest possible constitutional interpretation unencumbered by agency determinations.”
1985: Riverside Bayview Homes v. United States: U.S. Supreme Court rules Army Corps of Engineers and EPA may use Migratory Bird Rule, where birds use wetlands and therefore make them subject to jurisdiction over the act, because “water moves in hydrological cycles” rather than along “artificial lines,” concluding it is reasonable that “adjacent wetlands are inseparably bound up with the ‘waters’ of the United States.”
2001: Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers: U.S. Supreme Court rejects Migratory Bird Rule, says CWA had traditional jurisdiction over navigable waters. The ponds which formed in the abandoned gravel pits in SWANCC were “not adjacent to open water,” and therefore lacked the “significant nexus” to traditionally navigable waters necessary for jurisdiction under the CWA. But Corps and EPA, after SWANCC, say they can continue to exercise jurisdiction over isolated waters so long as the use, degradation, or destruction of those waters could affect other “waters of the United States.”
2006: Rapanos v. United States: Rapanos concerned the breadth of the CWA’s jurisdiction over “adjacent” wetlands. U.S. Supreme Court could not agree on one standard and established two tests for determining whether wetlands were subject to the CWA, in effect adding complexity to administration of the act.
2008: Joint Guidance from the Corps and EPA: Defines three types of waters: (1) Waters that are categorically “waters of the United States,” including navigable-in-fact waters, “relatively permanent” tributaries, and wetlands that have a continuous surface connection or unbroken hydrological connection to jurisdictional waters; (2) Waters that may be deemed “waters of the United States” on a case-by-case basis and (3) Water bodies that are excluded from CWA, ”including swales or gullies and ditches wholly in and draining only upland that do not carry a relatively permanent flow of water.”
June 2015: Obama Administration enacts the 2015 Clean Water Rules expanding definitions of intermittent and ephemeral streams. Included traditional, navigable waters, interstate, also wetlands, lakes, ponds, and “similar waters,” that are “adjacent” to traditional navigable waters. Some waters would remain subject to a case-specific evaluation. Some waters are excluded from CWA, including prior converted cropland, groundwater and certain ditches, and stormwater management systems.
October 2015: U.S. Court of Appeals for the Sixth Circuit issued an injunction, preventing the 2015 rules from taking effect.
February 2017: President Trump signs Executive Order 13778, instructs agencies to review the 2015 rules and rescind or replace them.
December 2018: EPA issues draft 2019 rules, which largely eliminate ephemeral streams and many wetlands from CWA’s jurisdiction, add more protection for farm operations.
April 15, 2019: Public comment period closes on draft 2019 rules. EPA begins review of thousands of public comments. No date set yet for further action.
Sources: EPA, Congressional Research Service