Waters of the US revision cheered by ag, booed by environmentalists

Middle Dutch Creek near the Grand River Ditch.

The Trump administration this week began the process of rescinding the controversial Waters of the USA (WOTUS) rule, part of the federal Clean Water Act, to the delight of the agricultural community — and to the dismay of environmentalists and other clear water advocates.

The 1972 Clean Water Act set up a structure regulating pollution discharge into water and authority to the Environmental Protection Agency to "implement pollution control programs such as setting wastewater standards for industry."

But it's how WOTUS defined water that had agriculture and other industries up in arms since the rule change was first announced by the Obama administration in 2015.

Trump made rescinding WOTUS a pledge to farmers during the 2016 presidential campaign.

According to the EPA, waterways that qualify for federal protection include "small streams that feed into larger streams, rivers, bays and coastal waters, and wetlands that filter pollution and help protect communities from flooding."  

What rankled industry is the inclusion of creeks and streams that are only wet after it rains. According to the EPA, that depends on a "physical, chemical or biological connection to larger bodies of water downstream and could affect the integrity of those downstream waters."

Colorado is among 25 states the sued the federal government in 2015 to prevent implementation of WOTUS, claiming it interfered with state sovereignty. A North Dakota judge slapped the rule with an injunction that year that protects Colorado and at least 13 other states, mostly in the West. Another 11 states, primarily in the Eastern United States, are covered by a South Carolina judge's injunction against the rule.

Tuesday's revision, which will come under a 60-day comment period once the rule is formally published, states that protected waters are those that are "relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrologic surface connection to those waters." That eliminates creeks and streams in Colorado that dry up, an important distinction given drought conditions over the past decade.

American Farm Bureau has been among the major critics of WOTUS. Taylor Szilgayi of Colorado Farm Bureau told Colorado Politics the proposed changes "will be huge for Colorado land owners. Under the 2015 rule, there was really no clarity about what waterways could have qualified under federal jurisdiction, and the cost of obtaining a permit would have been enormous. The previous WOTUS rule was particularly troublesome here in Colorado because it included definitions like ephemeral and dry features. Those include things like gullies and washes, which are numerous in the state and temporary water features that run wet in the spring during runoff and run dry the rest of the year."

The EPA is unable to say how many waterways would be impacted.

The Natural Resources Defense Council issued a statement Tuesday blasting the administration's revision. Jon Devine, director for the Federal Water Program at NRDC, said the "administration will stop at nothing to reward polluting industries and endanger our most treasured resources. Given the problems facing our lakes, streams and wetlands from the beaches of Florida to the drinking water of Toledo, now is the time to strengthen protections for our waterways, not weaken them.

“This proposal is reckless, and we will fight to ensure it never goes into effect.”

The National Wildlife Federation also weighed in against the changes on Monday. NWF President Collin O'Mara said "healthy streams and wetlands are essential for people and wildlife. This action will significantly roll back Clean Water Act protections — allowing a few to cut corners while increasing the risks to wildlife and to the drinking water for millions of Americans.

“At a time when communities from the Great Lakes to the Gulf are facing water crises, we call upon the administration to listen to the millions of Americans who are demanding stronger, clean water protections and rescind this misguided proposal which ignores basic science and makes it easier to damage our streams and wetlands and pollute our drinking water.”

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