Here’s a report from Adam McCoy writing for The Colorado Statesman. Click through and read the whole article. Here’s an excerpt:
The U.S. Environmental Protection Agency under Scott Pruitt and the Army Corps of Engineers wrote a letter earlier this month to Colorado asking for written feedback on the state’s “experiences and expertise” as the agencies work to redefine the Waters of the U.S. Rule (WOTUS).
WOTUS, also known as the Clean Water Rule, defines the jurisdiction of the EPA over waterways and wetlands “to restore and maintain the chemical, physical, and biological integrity of waters of the United States.”
A Feb. 28 executive order signed by President Donald Trump directed the EPA and Army Corps to review the rule and ensure it prioritizes that the “nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and States under the Constitution.”
State preparing comment
The governor’s office said in a statement to The Colorado Statesman, it is in the process of developing comments in reply to the EPA.
“It is important to Colorado that a revised rule provide clarity so that projects are able to proceed efficiently, and that the rule be legally defensible,” spokesperson Jacque Montgomery said. “It is also important that the rule protect the headwaters of Colorado and retain the agricultural exemptions.”
U.S. Rep. Scott Tipton, R-CO3, has voiced support for the WOTUS redefining effort, urging Hickenlooper and Colorado Attorney General Cynthia Coffman to weigh in with feedback.
“We all want access to clean and reliable water supplies. This is why the Clean Water Act was signed into law in 1948 and expanded in 1972,” Tipton said in a statement. “What we don’t want is for unelected bureaucrats to legislate through rulemaking. This is what the EPA did with WOTUS, and Colorado responded by joining several other Western States in a lawsuit against the rule.”
Coffman’s office said it has not received any correspondence from the EPA or the Army Corps of Engineers.
The Scalia opinion
The letter to state officials across the country said the order will be enacted in two steps including re-codifying the Clean Water Act before WOTUS, and writing a replacement act that aligns with an opinion written by Justice Scalia in a legal challenge.
That refers to an opinion coming out of a dispute between a Michigan farmer and the EPA over development on a wetland. It was heard by the U.S. Supreme Court in 2006 and the case questioned whether the EPA has jurisdiction over bodies “that do not even have a navigable water,” according to the Congressional Research Service.
In a plurality opinion written by Scalia, the justice argued the word “waters” in “waters of the United States” refers to “relatively permanent, standing or continuously flowing bodies of water.” Scalia was pointing to streams, rivers and lakes and wetlands that have a “continuous surface connection,” the research service wrote.
The nation’s highest court was expected to provide clarity on the EPA’s jurisdiction, but instead couldn’t come to a consensus on a standard.
Impact in Colorado
The Army Corps of Engineers and EPA face the challenge of how to combine the best watershed science into an effort to define federal jurisdiction that provides clarity to regulators and those facing regulations, said Reagan Waskom, director of the Colorado Water Institute.
“As scientists, we see that everything in the watershed is connected at some level, so the challenge is defining what is ‘significant’ in the significant nexus,” he said, referring to a different Supreme Court opinion from Justice Anthony Kennedy that argued the Army Corps should judge on a case-by-case basis whether a body of water has “significant nexus,” or significant impact, on a navigable water.
“We also view the landscape as highly heterogeneous and see case-by-case evaluation as the most likely approach to get it right (from a scientific point of view),” Waskom said.
He said the Scalia approach overlooks the science and “may have trouble withstanding court challenges from citizen-initiated lawsuits.”
Waskom said farmers and developers deserve regulatory certainty, and know the rules when it comes to managing their land and development projects, but there won’t be much impact on Colorado agriculture.
“Here in Colorado, I think agriculture would generally have been in the same position as before with the Clean Water Rule as promulgated as we do not have any of the five categories of ‘isolated waters’ called out for expanded jurisdiction,” he said.