Colorado executes about-face on Clean Water Act, but not everyone agrees

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 jerd@wateredco.org 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.