WOTUS rewrite to align with Scalia opinion, seek feedback from Colorado

Author: Adam McCoy - May 31, 2017 - Updated: May 31, 2017

President Donald Trump signs an executive order withdrawing the WOTUS Rule at a news conference Feb. 28, 2017, in the Roosevelt Room at the White House. (Associated Press Photo)
President Donald Trump signs an executive order withdrawing the WOTUS Rule at a news conference Feb. 28, 2017, in the Roosevelt Room at the White House. (Associated Press Photo)

Federal environmental regulators are seeking “input and wisdom” from Colorado as they begin the process of rewriting a Barack Obama-era water protection rule known as WOTUS, which the White House says it now wants aligned with a Supreme Court opinion on water rights from the late Justice Antonin Scalia.

The U.S. Environmental Protection Agency under Scott Pruitt and the Army Corps of Engineers wrote a letter earlier this month to Colorado asking for written feedback on the state’s “experiences and expertise” as the agencies work to redefine the Waters of the U.S. Rule (WOTUS).

WOTUS, also known as the Clean Water Rule, defines the jurisdiction of the EPA over waterways and wetlands “to restore and maintain the chemical, physical, and biological integrity of waters of the United States.”

The rule is the EPA’s interpretation, under the Obama administration, of the the Clean Water Act of 1972, which aimed to curtail pollutants in water. Under WOTUS, the EPA expanded what falls into the category of a federally regulated body of water. The rule previously stated only waterways that could be navigable by ships for interstate commerce were to be federally regulated, according to a Congressional Research Service analysis.

Environmentalists have praised the rule, but it has also come under fire by farmers and ranchers who label the rule federal overreach. Colorado joined a lawsuit in 2015 that called WOTUS “unreasonable federal overreach.” A total of 16 states sought legal action against the rule.

A Feb. 28 executive order signed by President Donald Trump directed the EPA and Army Corps to review the rule and ensure it prioritizes that the “nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and States under the Constitution.”

Now, after years of remaining in judicial limbo with court-ordered delays, the Trump administration looks to revise WOTUS.

State preparing comment

The governor’s office said in a statement to The Colorado Statesman, it is in the process of developing comments in reply to the EPA.

“It is important to Colorado that a revised rule provide clarity so that projects are able to proceed efficiently, and that the rule be legally defensible,” spokesperson Jacque Montgomery said. “It is also important that the rule protect the headwaters of Colorado and retain the agricultural exemptions.”

U.S. Rep. Scott Tipton, R-CO3, has voiced support for the WOTUS redefining effort, urging Hickenlooper and Colorado Attorney General Cynthia Coffman to weigh in with feedback.

“We all want access to clean and reliable water supplies. This is why the Clean Water Act was signed into law in 1948 and expanded in 1972,” Tipton said in a statement. “What we don’t want is for unelected bureaucrats to legislate through rulemaking. This is what the EPA did with WOTUS, and Colorado responded by joining several other Western States in a lawsuit against the rule.”

Coffman’s office said it has not received any correspondence from the EPA or the Army Corps of Engineers.

The Scalia opinion

The letter to state officials across the country said the order will be enacted in two steps including re-codifying the Clean Water Act before WOTUS, and writing a replacement act that aligns with an opinion written by Justice Scalia in a legal challenge.

That refers to an opinion coming out of a dispute between a Michigan farmer and the EPA over development on a wetland. It was heard by the U.S. Supreme Court in 2006 and the case questioned whether the EPA has jurisdiction over bodies “that do not even have a navigable water,” according to the Congressional Research Service.

In a plurality opinion written by Scalia, the justice argued the word “waters” in “waters of the United States” refers to “relatively permanent, standing or continuously flowing bodies of water.” Scalia was pointing to streams, rivers and lakes and wetlands that have a “continuous surface connection,” the research service wrote.

The nation’s highest court was expected to provide clarity on the EPA’s jurisdiction, but instead couldn’t come to a consensus on a standard.

Impact in Colorado

The Army Corps of Engineers and EPA face the challenge of how to combine the best watershed science into an effort to define federal jurisdiction that provides clarity to regulators and those facing regulations, said Reagan Waskom, director of the Colorado Water Institute.

“As scientists, we see that everything in the watershed is connected at some level, so the challenge is defining what is ‘significant’ in the significant nexus,” he said, referring to a different Supreme Court opinion from Justice Anthony Kennedy that argued the Army Corps should judge on a case-by-case basis whether a body of water has “significant nexus,” or significant impact, on a navigable water.

“We also view the landscape as highly heterogeneous and see case-by-case evaluation as the most likely approach to get it right (from a scientific point of view),” Waskom said.

He said the Scalia approach overlooks the science and “may have trouble withstanding court challenges from citizen-initiated lawsuits.”

Waskom said farmers and developers deserve regulatory certainty, and know the rules when it comes to managing their land and development projects, but there won’t be much impact on Colorado agriculture.

“Here in Colorado, I think agriculture would generally have been in the same position as before with the Clean Water Rule as promulgated as we do not have any of the five categories of ‘isolated waters’ called out for expanded jurisdiction,” he said.

Government overreach versus water conservation

Farmers and ranchers have been vocal opponents of WOTUS, arguing the rule is ambiguous and its broad reach is unlawful.

Colorado Farm Bureau Executive Vice President Chad Vorthmann said his organization’s members will again ask the EPA to “ditch the rule” in favor of clear, objective rule defining where the federal authority begins and ends for bodies of water.

“We hope a new rule will provide specific limits on federal jurisdiction, especially to features that are ordinarily dry like many in Colorado now regulated by EPA,” Vorthmann said. “By working more cooperatively with state authorities, EPA can provide regulatory certainty to farmers and other stakeholders while allowing the flexibility necessary to achieve the goals of the Clean Water Act.”

But Garrett Garner-Wells, director of state conservationist group Environment Colorado, has little faith in the EPA and Trump administration in rewriting the rule. He said to see water protections undone would be devastating.

“For more than two-thirds of Coloradans, the Clean Water Rule is a vital drinking water protection and a bulwark against pollution,” Garner-Wells said. “The Clean Water rule protects more than 73,000 miles of our rivers and streams, and repealing the rule is an assault on Colorado’s residents, environment, and commonsense values.”

Adam McCoy

Adam McCoy

Adam McCoy covers Denver-area politics for Colorado Politics.