From Water Education Colorado (Jerd Smith):
Colorado state health officials said they’re hopeful a recent federal court ruling that effectively overturned Trump-era rules reducing oversight of Western rivers and streams will allow states to revert back to a more protective standard.
“We are aware of Arizona’s court decision and are following what it means for other states, especially arid states such as Colorado. We are hopeful the Arizona ruling will apply nationwide because it has the potential to allow states to revert back to standards that protected our state waters more,” said Trisha Oeth via email.
Oeth, who is the environmental health and protection policy director at the Colorado Department of Public Health and Environment (CDPHE), also said the state understood the need to ensure that more certainty regarding the regulations was critical to protect all the interest groups affected by them.
The Trump rule sought to overturn Obama Administration rules that expanded the scope of the Clean Water Act. But Aug. 30, the Arizona court rejected it, saying it harmed streams in Western states and ignored important science. It has directed regulators across the country to use a set of rules developed prior to the Obama Administration’s actions until the Biden Administration can develop new regulations.
Since 2019, when the Trump-era rule was finalized, the CDPHE has been working, without success, on a proposed permitting program that lawmakers would have to approve. The permitting program would have covered streams and rivers left unprotected by the Trump rule. The so-called dredge-and-fill permits proposed by the state would be required when activities such as road and home building affect streams no longer covered by the Trump rule.
But farm interests, developers and contractors remain concerned that the Clean Water Act (CWA) rule, known as the Waters of the U.S. (WOTUS) rule, will remain mired in legal battles and regulatory uncertainty, delaying projects and raising their costs.
“It’s a big fear of ours,” said Zach Riley, the Colorado Farm Bureau’s director of public policy. The organization, which has 23,000 members, had supported the narrower WOTUS rule.
The political seesaw has been going on for decades with the CWA legally hamstrung 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.
Administered by the U.S. Army Corps of Engineers and the Environmental Protection Agency, the CWA is credited with making U.S. waters some of the cleanest in the world. But it has also been difficult to administer, in part because the country is home to widely different geographies and because of numerous court cases that have altered how it is interpreted by different presidential administrations.
Western states have been particularly concerned because in the Midwest and East, for instance, major rivers that carry barge and shipping traffic are clearly “navigable,” 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 often don’t flow year round and don’t carry traditional commercial traffic. Over the years many of those streams too became protected by the Clean Water Act.
The Trump administration’s WOTUS rule, however, excluded them, saying that only navigable streams would be regulated, meaning that thousands of miles of streams in Colorado and other Western states that don’t flow year round or carry commercial shipping traffic would no longer have been protected.
Whether Colorado can or should craft a new permitting regulation that will remove it from the political back-and-forth that has dogged WOTUS and provide industry and environmental groups with more certainty isn’t clear yet.
The CDPHE has not yet said what it plans to do, saying it is still analyzing the Arizona decision.
“At the state level, it will be interesting,” said Alex Funk, senior counsel and director of water with the Theodore Roosevelt Conservation Partnership, which has advocated for a new state permitting program. “We’re still supportive of a state program to get out of this habit of having new WOTUS rules every four years…we need something that will survive at the federal level.”
Still others want the CDPHE to take a breather, to wait and see how the EPA and other agencies interpret this latest ruling before trying to create a new state regulation.
“Given the pace of change and the multiple rounds of litigation, the state could take more time to discuss what’s needed,” said Gabe Racz, an attorney who represents water utilities and industry at the Colorado Water Congress.
And Racz said he believes there is a chance that the Biden Administration will be able to craft new rules that can endure at the federal level, regardless of who is in the White House.
“The Biden Administration announced they planned to develop a durable rule. I’m hopeful. That’s a step in the right direction,” Racz said.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.