“We all want to protect Colorado’s iconic mountain streams” — Karn Stiegelmeier

Tabeguache Creek via the USFS
Tabeguache Creek via the USFS

Here’s a guest column in favor of the EPA’s proposed rule clarifying the “waters of the US” under the Clean Water Act, from Karn Stiegelmeier writing in The Denver Post:

We all want to protect Colorado’s iconic mountain streams that provide clean water to drink and clean water to fish, without unnecessary overregulation. A recent proposal from the Environmental Protection Agency and Army Corps strikes that balance. The new rule would restore important protections for waterways and reduce administrative burdens in permitting processes. While admittedly technical, this is an important step forward.

The Clean Water Act is all about restoring and maintaining healthy waterways throughout the United States. But it protects only those waters that meet the definition of “waters of the United States.” Two Supreme Court rulings over the last 15 years muddled the distinction between waters that were covered under the Clean Water Act and those that weren’t. Those rulings resulted in significant additional red tape, time and expense to the permitting processes.

Specifically, in 2009, Denver-based officials with the EPA reported that it takes their office three times as long to process a permit request after the Supreme Court decisions.

Many in Colorado and around the nation clamored for a remedy for the confusion and delays. The federal agencies issuing the proposed rule are currently accepting comments on how this first draft might be improved. The proposed rule, while not perfect, seeks to bring some clarity back to the process. Local governments and individuals around the state should submit comments on how the rule could be made better.

Many government and agricultural leaders have already opposed the rule-making in its entirety, providing little or no feedback on how the rule might be improved. There has been broad misinterpretation of this rule clarification as burdensome “over-regulation.” In fact, the proposal is precisely the opposite.

The proposed rule does not expand federal jurisdiction beyond its historic limits, but instead restores protections for some waters brought into question after the Supreme Court rulings. For example, in 2009 the Corps determined a 12-acre high altitude wetland in Park County was outside of federal jurisdiction because a manmade ditch interrupted the historic connection with the nearby stream. This wetland certainly would have received protection from water pollution before the Supreme Court decisions, and rightfully should under the proposed rule. Without protection under the Act, pristine sites like this wetland may be dredged, filled, and developed without any federal agency oversight, to the detriment not only of the wetland but also the neighboring stream, communities, and economies.

Second, many ditches have been under Clean Water Act jurisdiction since the 1970’s. The Act requires permits for some activities occurring on some ditches because they drain into natural waterways and affect the health of those waters. These ditches should be regulated under the Act, as they have historically, to protect the rivers into which they drain.

In fact, for the first time, the proposed rule would clearly exempt ditches which had been a concern. The rule actually explicitly restricts applicability of the Act to only those ditches that flow into another waterway, exempting ditches that do not flow annually or irrigate only dry lands without returning flows to another waterway.

Finally, the federal agencies also maintain a long list of activities that can receive expedited permits because those activities do not pose a significant threat of water pollution, such as small-scale road maintenance. The proposed rule will not change which activities receive expedited permits.

Healthy waterways benefit the whole state by protecting and enhancing recreational opportunities. For those of us living and working in Summit County, protecting our waters means protecting our clean water and our tourism economy. The proposed rule is a thoughtfully crafted, urgently needed clarification to protect Colorado’s waterways.

Karn Stiegelmeier is a Summit County commissioner.

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