New rule aims to clear up regulatory limbo for seasonal streams and isolated wetlands
By Bob Berwyn
FRISCO — A proposed federal rule would restore protection to hundreds of Colorado streams and big swaths of wetlands, including beloved alpine creeks and the sandy washes of the Front Range that only hold water seasonally.
The seasonal streams and disconnected wetlands long were covered under the Clean Water Act, but a pair of complex U.S. Supreme Court rulings in 2001 and 2006 opened some loopholes the regulations. At the least, the legal limbo caused headaches for scientists and regulators trying to assess impacts of housing developments and new roads. In some cases, they weren’t sure if they even had authority to regulate filling or draining of some wetlands.
At worst, the Supreme Court ruling formed the basis for some highly questionable lower court rulings, according to Mark Squillace, a natural resources scholar with the University of Colorado. An Alabama court overturned the conviction of an admitted polluter. His attorneys used the Supreme Court ruling to defend him, saying he didn’t think he was discharging into regulated waters.
The new regulation, produced jointly by the EPA and the U.S. Army Corps of Engineers designates six types of streams and wetlands that are specifically protected, plus another category requiring case by case evaluation. Several exemptions are also listed, including agricultural irrigation ditches.
Despite some early inaccurate accounts in the media, the proposed rule would not add more protected waters — it’s merely restoring protection that existed before 2006, according to the EPA.
“Let’s say you’re hiking up near the Flatirons and you walk across a stream that’s dry at the moment,” said EPA’s Karen Hamilton, chief of the aquatic resource protection and accountability unit at the agency’s Denver regional headquarters. “It’s a tributary that flows down into North Boulder Creek. Even though it might be dry in the fall, that will be protected by the Clean Water Act.
There’s been this allegation that we’re going to look at puddles in peoples driveways,” Hamilton said, explaining that the agency isn’t looking to regulating backyard birdbaths. The new rule will also give developers and land managers more certainty for the long-term — a key ingredient for sustainable natural resources management.
“The proposed regulation makes it clear that the tributary is connected to a larger stream system, even if it doesn’t flow all year,” said Jim Luey, a senior EPA environmental scientists. “Any impacts to that stream will have a physical and biological effect downstream,” Luey explained, adding that wetlands adjacent to the stream would also be covered under one of the six categories.
“There’s a strong scientific basis for the categories,” Hamilton said, explaining that the EPA thoroughly analyzed the best available wetlands science as a basis for the rule, compiled in a detailed connectivity study.
The proposed rule will be posted in the federal register soon, triggering a 90-day comment period, and the EPA and Corps of Engineers are looking for specific feedback on the categories, as as the exemptions, Hamilton added. Information on commenting is atthe EPA U.S. Waters website.
Wrangling over wetlands in Colorado is nothing new, but the proposed rule is critical for the state, which has 215,060 miles of intermittent and ephemeral streams, representing 80 percent of the total stream miles in Colorado. About 98 pecent of Colorado’s population is dependent on public drinking water systems that rely on high quality headwater streams and streams that do not flow year round.
Even though most people agree that filling wetlands and dumping pollution into streams are bad ideas, conflicts over exact interpretations of the Clean Water Act remain, said CU’s Squillace.
It left a gaping hole in the regulations,” Squillace said. “In the West, many of our waters are not navigable. “I think one of the biggest problems was, it forced the government into making ad hoc determinations … it’s a cumbersome process, with costs and uncertainties,” Squillace said, referring to the Supreme Court rulings.
The legal battle started when a lawless developer filled more than 20 acres of wetlands without a permit —and after he was warned by state officials. John Rapanos was eventually convicted of environmental crimes, but he took the civil case for damages all the way to the U.S. Supreme Court, where the justices grappled with the technical definitions of the Clean Water Act.
But those isolated wetlands, as they came to be called, are connected to the rest of the world’s watery network in ways scientists only partially understand. What we do know is the health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin.
Streams and wetlands trap floodwaters, recharge groundwater supplies, remove pollution, and provide habitat for fish and wildlife. They are also economic drivers because of their role in fishing, hunting, agriculture, recreation, energy, and manufacturing.
Colorado has been able to protect some important wetlands, especially through partnerships with property owners and in collaboration with local and federal agencies. Nationally, there is still concern of the rate of wetlands losses. A recent report suggests that U.S. wetlands are at a tipping point.