A large portion of wetlands in the Mountain West could lose federal protections under a new proposal from the Environmental Protection Agency (EPA). But a couple of states in the region are working to build their own safeguards.
On Nov. 17, EPA Administrator Lee Zeldin and the Army Corps of Engineers announced a proposal for a narrowed definition of “Waters of the United States” (WOTUS), the designation that determines which rivers, streams and wetlands qualify for protection under the Clean Water Act.
Under the proposal, wetlands would be excluded unless they are connected to other protected waters and hold surface water for part of the year. The definition also removes protections for interstate waters “to make clear that such waters no longer gain jurisdiction by simply crossing state lines.”
Industry groups praised the proposal for cutting red tape.
“Today's WOTUS announcement finally acknowledges that the federal government should work to protect lakes, rivers and oceans, rather than regulating ditches and ponds on family farms and ranches,” said Mary-Thomas Hart, chief counsel for the National Cattlemen’s Beef Association, in a statement.
The EPA said the changes align with a 2023 U.S. Supreme Court decision. In Sackett v. EPA, an Idaho couple who built a house near a lake prevailed when the Court ruled that the agency had improperly labeled their property a protected wetland.
But Stu Gillespie, a staff attorney for Earthjustice in Denver, said the current proposal would go beyond what the Sackett ruling required.
“It would essentially limit jurisdiction to just the main navigable rivers, their tributaries and a couple wetlands, if that,” he said. “It would be a massive rollback of Clean Water Act protections that no one has even contemplated until now.”
Gillespie said the impacts would be severe for critical wetlands and streams in the arid West, many of which are seasonal or fed by groundwater.
“A lot of our water bodies are intermittent, or even ephemeral, and you don't always have that continuous [surface] connection,” he said.
According to an EPA analysis, only an estimated 3% of wetlands in Colorado have surface water part of the year. The agency has not responded to clarify the impacts of the proposal.
States create their own backstops
Two Mountain West states—New Mexico and Colorado—are developing their own systems to protect waters that have lost federal oversight.
Colorado Gov. Jared Polis signed the “first-in-the-nation” bipartisan law last year to protect the state’s surface waters, saying it would fill the regulatory gap left by the Sackett decision. New Mexico passed a similar bill this year.
Colorado’s law established a new permitting program within the Colorado Department of Public Health and Environment. It will regulate the removal of sediment from, or filling in, streams, rivers and wetlands, including waters no longer protected under the Clean Water Act.
A state commission is now hammering out the details through rulemaking. A hearing is scheduled for Dec. 8-10, and a committee has until the end of the year to finalize the rules.
Gillespie, who is representing environmental and community groups in the rulemaking process, said the Water Quality Control Commission’s current proposal is promising but leaves some areas vulnerable.
“There are a lot of interests out there, particularly industry groups, that are trying to weaken the regulation,” he said. “Some of them are trying to take a sledgehammer to it to really undermine the program.”
Environmental groups are particularly concerned that wetlands near ditches or canals won’t be covered. That exclusion, they estimate in prehearing documents, would leave roughly 500,000 acres of the state’s wetlands unprotected.
On the other hand, some industry groups worry the commission may expand the program beyond what they believe the legislature intended.
“We want to see a program that adheres as closely as possible to the statutory framework agreed upon, which really represents the compromise of the vast range of water users,” said Adam Eckman, the President and CEO of the Colorado Mining Association.
He disagrees with environmental groups who want projects to undergo a “public interest” review, weighing the benefits and harms of a project, before receiving permits. Such reviews would be nebulous and beyond the scope of the program, he said.which he said would be nebulous and open-ended.
Colorado’s Water Quality Control Commission is accepting public comments emailed to cdphe.wqcc@state.co.us by Nov. 26. The public is also encouraged to share comments in person or via Zoom during the hearing on Dec. 8. The EPA is accepting public comments on its more limited federal water protections through Jan. 5th.
This story was produced by the Mountain West News Bureau, a collaboration between Boise State Public Radio, Wyoming Public Media, Nevada Public Radio, KUNR in Nevada, KUNC in Northern Colorado, KANW in New Mexico, Colorado Public Radio and KJZZ in Arizona as well as NPR, with support from affiliate newsrooms across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting and Eric and Wendy Schmidt.
