Thursday, April 23, 2020

EPA finalizes rule officials fear will allow pollution of streams and wetlands

Posted By on Thu, Apr 23, 2020 at 1:49 PM

click to enlarge Though this man-made wetland along Fountain Creek likely has running water year-round and, as such, remains subject to federal protection, millions of acres of wetlands across the country no longer will be buffered from pollution under a new rule the Trump Administration's EPA has adopted. - PAM ZUBECK
  • Pam Zubeck
  • Though this man-made wetland along Fountain Creek likely has running water year-round and, as such, remains subject to federal protection, millions of acres of wetlands across the country no longer will be buffered from pollution under a new rule the Trump Administration's EPA has adopted.
Colorado Attorney General Phil Weiser say's he'll take legal action to protect Colorado waters against harmful aspects of an Environmental Protection Agency rule finalized April 21 that relaxes water quality compliance.

The new rule, advanced by President Donald Trump's administration, defines which governments have say over protecting waters from pollution, removing a good share of those waters in streams and watersheds that previously were covered by the EPA's Clean Water Rule imposed during the Barack Obama Administration.

The Clean Water Rule was finalized in 2015 and designed to protect ephemeral streams (those that don't run year-round) and wetlands that help store and filter water and provide fish and wildlife habitat.

But the Board of El Paso County Commissioners, comprised of Republicans, supports the rule, issuing a statement in response to the Indy's request for a comment:
The Board continues to support the idea that farmers, ranchers, and property owners should be given greater clarity and understanding of who has the regulatory authority over any bodies of water that may be on, or run through, their property.
(Commissioners have long opposed the Clean Water Rule, with former Commissioner Sallie Clark saying it could "impact our ability to handle stormwater," although federal and state officials said the rule actually would make things easier for agencies. After she left office in 2017, she took a post in the Trump Administration's Department of Agriculture.)

click to enlarge Colorado AG Weiser: vows to protect clean water. - ATTORNEY GENERAL'S OFFICE
  • Attorney General's Office
  • Colorado AG Weiser: vows to protect clean water.
Modifying the rule will remove Clean Water Act protections from millions of miles of small headwater streams and millions of acres of wetlands, and lift oversight of many currently regulated activities, such as oil and gas development and pipelines.

Weiser called the Waters of the United States rule "too limited," noting it excludes a "significant percentage" of Colorado’s waters from Clean Water Act protections.

"The final rule threatens to create unacceptable impacts to the state’s ability to protect our precious state water resources, and, in the absence of extraordinary state efforts to fill the gaps left by the federal government, will harm Colorado’s economy and water quality," Weiser said in a statement.

He conceded the final rule does protect important agriculture exemptions and provides continued assurance that states retain authority and primary responsibility over land and water resources important to Colorado. "However, the federal government’s decision to remove from federal oversight of ephemeral waters, certain intermittent streams, and many wetlands is based on flawed legal reasoning and lacks a scientific basis," he said.

Weiser didn't explain what legal action he plans.

“This rule will negatively impact Colorado’s economy and environment,” said John Putnam, the state's director of Environmental Programs. “Once again, Colorado and its sister states will need to step in to address EPA’s failure to comply with the Clean Water Act and other laws."

Last year, Gov. Jared Polis and Weiser warned against the EPA’s proposed rule change, citing the U.S. Geological Survey's National Hydrography Dataset, which estimated that 44 percent of Colorado’s streams are intermittent and 24 percent are ephemeral. That means at least 68 percent of Colorado's waters are temporary in nature, which will be removed from protection under the new rule.

Polis and Weiser, in public comments in response to the proposed rule change, noted Colorado is a headwaters state, containing the start of four multi-state river systems: the Platte,  Arkansas, Rio Grande and Colorado. They wrote:

Many of these headwaters comprise a web of wetlands, ephemeral streams, and intermittent streams, which are often connected to traditionally navigable waters. These waters have critical importance to the quality of water used by Colorado and nineteen downstream states for drinking, agriculture, recreation, and the health of both aquatic and terrestrial ecosystems.

This rule threatens huge swaths of Colorado’s waters; waters used by 19 states and Mexico that Colorado is obligated to protect. It’s estimated that almost 70% of Colorado Waters could be impacted by this rule.

With this action, the federal government has left us with an environmental protection and economic recovery gap. It is now up to the state to provide the necessary protection of both Colorado’s economy and the environment. We are going to do everything we can, while also addressing the impacts from COVID-19, to ensure Coloradans live in the healthy state they deserve,” said Patrick Pfaltzgraff, director, Water Quality Control Division.
Other environmental groups also opposed the rule change, including Trout Unlimited. “We cannot overstate how far this sets us back when it comes to protecting our water,” said the group's president and CEO Chris Wood. “No one wins when our water supplies are polluted. Allowing chemicals or waste to be dumped into headwaters during the dry part of the season harms the people who live downstream when the rainy season comes.

"You can bet on gravity every time," he added. "Whatever is in our headwaters will ultimately end up in our own backyards. Headwaters and wetlands are some of the most important components to our network of streams and rivers. They’re like the capillaries in our bodies. If they’re unhealthy, so is everything else. Americans should not, and will not, allow our water to be jeopardized in this way.”

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