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EPA Wants Western Input On Changes To 'Waters of the U.S.' Rule

North Fork of the Gunnison
Laura Palmisano.

The North Fork of the Gunnison River flows through southwestern Colorado. It’s a waterway the feeds into the Gunnison River, a tributary of the Colorado River, which supplies drinking water to millions of people in the West.

The North Fork is protected by the Clean Water Act under the definition of “Waters of the U.S.”

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have created a proposal that changes this definition. 

Under the current language, navigable waters like the Gunnison River, territorial seas, interstate waters, impoundments of water like reservoirs, interstate waters that affect commerce, tributaries, and wetlands adjacent to waters of the U.S. are protected under the Clean Water Act.

More than 100 organizations and the Supreme Court have asked the EPA and Army Corps to revise the definition because it’s confusing.

Two EPA officials from Denver recently visited the Western Slope to talk about the proposed changes.

Nearly 30 people attended the meeting hosted by the Western Slope Conservation Center, a water advocacy group.

Julia McCarthy, an EPA stream biologist, gave a presentation in Hotchkiss, Colo. on the revisions.

McCarthy said the changes will modify three parts of the “Waters of the U.S.” section of the act.  

“Right now there is no existing definition of tributary in the regulation," she said. "The proposed rule adds a definition of tributary, which defines [it] as a water that has a bed, a bank, and an ordinary high water mark that contributes flow to traditionally navigable, downstream waters, interstate waters, or territorial seas."

The revisions also propose that adjacent or neighboring waters would be subject to regulation. And adjacent waters would include all waters, not just wetlands.

The wording about interstate waters that affect commerce will also be removed. And a new term will be added—other waters—defined as waters that are isolated from other bodies of water like prairie potholes that occur on the Great Plains. These "other waters" would be regulated if they affect another protected water source.

"And also what is changing is this piece where we’ve added certain water features and these two types of ditches as explicitly exempt from the definition of 'Waters of the U.S.'", McCarthy said. 

She said under the revisions, it’s also made clear that groundwater, gullies and artificial ponds created on dry land would not be regulated by the Clean Water Act.

Paul Kehmeier, a Colorado alfalfa farmer, said he attended the meeting to learn how the changes could affect his livelihood.

“I think that it was good to hear clarifications and my impression is that the EPA is trying to help define things more clearly so that both the farmers and Army Corps can function more efficiently in the permitting in our various farming activities,” Kehmeier said. 

Ranchers, conservationists, water managers and property owners were also at the presentation.

Cary Denision, who works for Trout Unlimited, a conservation group, said he’s for the changes.

“I think that it’s going to provide guidance for the regulatory bodies including the Army Corps on how they handle case by case situations in how they designate waters of the United States so that it removes some confusion between the Army Corps and water users,” Denision said. 

At the session EPA, officials stressed that the "Clean Water Act is about quality and not quantity." They said the act and the proposed changes don’t affect how states allocate water.

McCarthy said the agency wants to hear what people think about the proposal and that’s why they are putting on informational meetings.  

“A riparian area out here in the Grand Mesa area is going to be very different from a flood plain on the lower Mississippi River," she said. "We want to make sure that the definitions that are being provided in this rule are applicable and make sense for the types of resources we have here in the West.”

People have until Oct. 20 to comment on the proposal.

For more information visit: www.epa.gov/uswaters

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