Colorado urges updates to federal rule to protect its streams and wetlands

Sept. 3, 2021 (DENVER)—Attorney General Phil Weiser and Governor Jared Polis, on behalf of the State of Colorado, today recommended the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers update a federal rule that protects Colorado streams and wetlands from pollution under the Clean Water Act.

The definition of “waters of the United States” that are protected under the act was altered under the 2020 Navigable Waters Protection Rule, leaving many of Colorado’s streams vulnerable to pollution, undermining protections for Colorado’s headwaters, and placing new, extensive regulatory burdens on the State. The EPA and Army Corps of Engineers requested comments as part of a new rulemaking to update the Clean Water Act.

“This rulemaking process is a vital opportunity for us to protect the integrity of our state’s water by utilizing sound science and putting an end to ongoing uncertainty we witnessed over the past decade,” Weiser said. “Water quality is critical to our state’s infrastructure and way of life, and protecting our natural resources remains a top priority for my office.”

“It’s past time for a real solution to address pollution in our state’s vital waterways,” Polis said. “Regulatory uncertainty has harmed Colorado’s farmers and ranchers as well as local communities and businesses that rely on a sustainable and clean water source. Streams, rivers, wetlands, and larger waters are the foundation of all our ecosystems in the arid West, and we must ensure a system that is set up for long-term success.”

The Clean Water Act protects U.S. streams, wetlands, and rivers from pollution. However, under the new Navigable Waters Protection Rule, Trout Unlimited and The Nature Conservancy estimate that at least 25% of Colorado’s streams and 22% of Colorado’s wetlands lost protection.

In the comments submitted today, Colorado recommends developing a rule that is consistent with the 2008 guidance—which included ephemeral streams and wetlands that aren’t connected on the surface to larger bodies of water—with additional clarifications and adoption of sensible agricultural exemptions from the Navigable Water Protection Rule.

“Our goal is to protect the environment first and foremost, and to do so, we need to provide clear direction and standards for entities,” said Trisha Oeth, environmental health and protection policy director for the Colorado Department of Public Health and Environment. “The Navigable Waters Protection Rule ultimately led to confusion and uncertainty in Colorado, so a new rule that is consistent in scope with the 2008 guidance and that provides additional clarity will allow entities to move forward with environmental protections in place as they have done so for the past decade.”

Colorado recommends a revised definition of waters of the United States that:

  • Advances the objectives of the Clean Water Act: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters;”
  • Retains consistency and certainty with longstanding federal Clean Water Act practice, particularly the protection of water quality in Colorado;
  • Is based on science;
  • Is flexible enough to acknowledge the biological and hydrological conditions of western streams and wetlands;
  • Preserves the Navigable Waters Protection Rule’s agricultural exemptions; and
  • Recognizes states’ authority to manage water quantity.

Colorado previously filed a lawsuit against illegal alterations to the definition under the Navigable Waters Protection Rule.

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Lawrence Pacheco
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