Looking to oversee hundreds of streams and wetlands left unprotected by a recent U.S. Supreme Court ruling, Colorado water quality officials have taken emergency action to provide at least temporary protections while a more permanent program can be set up.
The move comes just weeks after a U.S. Supreme Court decision sharply reduced the number of wetlands and streams protected under the Clean Water Act.
“We will rely on this temporary policy while we work out something longer term,” said Nicole Rowan, director of the Colorado Department of Public Health and Environment’s (CDPHE) Water Quality Control Division.
Under the new policy, the CDPHE is requiring notice of discharge into state waters and it will use its new authority to guide its enforcement actions when unpermitted dredge and fill materials are discharged into state waters, according to Kaitlyn Beekman, a CDPHE spokesperson.
Members of a working group, which includes environmental and agricultural interests, as well as water utilities and mining companies, have been working with the state to explore how to create a permanent mechanism to protect Colorado’s streams and wetlands in the future.
At issue is how the U.S. Environmental Protection Agency (EPA) defines so-called Waters of the United States (WOTUS), which determines which waterways and wetlands are protected under the federal Clean Water Act. The definition has been heavily litigated in the nation’s lower courts since the 1980s and has changed dramatically under different presidential administrations.
But on May 25 in Sackett v. EPA, the U.S. Supreme Court decided, among other things, that the WOTUS definition that included wetlands adjacent to streams, was too broad.
In its ruling, the court said only those wetlands with a direct surface connection to a stream or permanent body of water, for instance, should be protected.
The court decision has far-ranging implications for the environment, as well as agriculture, construction and mining, all major parts of Colorado’s economy, officials said.
The decision may also have more impact in semi-arid Western states, where streams don’t run year round and wetlands often don’t have a direct surface connection to a stream.
“Although the court’s decision directly addresses only the scope of ‘adjacent wetlands,’ its description of ‘waters of the United States’ as including only relatively permanent bodies of water connected to traditional interstate navigable waters will likely result in ephemeral and intermittent waters, which constitute the majority of Colorado’s stream miles, being outside the scope of federal Clean Water Act jurisdiction,” the CDPHE said in a statement on its website.
Under the Clean Water Act, the EPA and the U.S. Army Corps of Engineers are responsible for issuing permits and enforcing violations when dredge and fill activities associated with construction and road projects, among others, harm wetlands and waters considered to be Waters of the United States.
Right now, though, as a result of the new Supreme Court decision, no agency has the authority to issue a permit or take enforcement action on these newly unprotected wetlands, according to Trisha Oeth, CDPHE’s director of environmental health and protection programs.
“There are waters that used to be protected under federal law and you used to be able to get a permit [for dredge and fill work]. Now there is no protection and no way to get a permit,” Oeth said.
Alex Funk, director of water resources and senior counsel at the Theodore Roosevelt Conservation Partnership, said he was pleased the state was moving quickly to fill in the regulatory gap.
“We were not excited about Sackett,” Funk said. “But we’re glad Colorado is doing something about it.”
Funk is hopeful that the CDPHE and lawmakers will move to introduce legislation next year that will create a wetlands law specific to Colorado that will offer broad, lasting protections. Funk said a handful of states, including Ohio and New York, have taken similar action to address the changes to the Waters of the U.S. rule.
Agricultural interests have long been worried about the WOTUS rule, because irrigators routinely work with streams and irrigation systems on their lands, where wetlands also exist.
Austin Vincent, general counsel and policy director for the Colorado Farm Bureau, said his members are comfortable with the approach the CDPHE is taking in part because there are critical exemptions for on-farm work, such as irrigating, plowing and irrigation system maintenance.
Part of the problem in the past is that the law changed so frequently, that it was difficult to know with certainty where and when permits were needed, Vincent said.
“It’s a big, big issue,” he said. “We want to make sure that the definition the state comes up with doesn’t encompass an overly broad number of waterways … Certainty is difficult in water. But we want as much certainty as we can get from the regulatory community.”
Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org.