EPA, Corps propose new rule to protect water quality

The Environmental Protection Agency and US Army Corps of Engineers today announced a new proposed rule that would help ensure protection for many Colorado streams whose status - as protected or not protected under the Clean Water Act - has been in doubt since two troubling Supreme Court decisions upset long-standing definitions for what constituted "Waters of the United States".  As many as 76,000 miles of stream in Colorado - 75% of our total, including most headwater areas - were facing an uncertain future. We are in the process of reviewing the guidance, but it appears that most of these will be protected under the proposed rule.  Below is the notice we received from EPA's regional office describing the proposal:

Dear Region 8 Clean Water Stakeholder:

I am sending this message on behalf of Regional Administrator Shaun McGrath.  The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) today jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation’s water resources. The Clean Water Act is the nation’s foremost water quality and wetland protection law.  The clarifications in the proposed rule will benefit industry, business, and government by increasing clarity and efficiency in determining coverage of the Clean Water Act.

Determining Clean Water Act jurisdiction over streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rulemaking to provide clarity.  

The proposed rule does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture. Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 53 specific agricultural conservation practices that protect or improve water quality will not be subject to Clean Water Act Section 404 permitting requirements. The agencies will work together to implement these new exemptions and periodically review and update USDA’s Natural Resources Conservation Service (NRCS) conservation practice standards and activities that would qualify under the exemption.

The health of rivers, lakes, bays, and coastal waters depends on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities – they 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.

About 60 percent of stream miles in the U.S (significantly higher in some Region 8 states) flow only seasonally or after rain, but have a major impact on the downstream waters. Approximately 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams. These are important waterways for which EPA and the Army Corps are clarifying protection.

The agencies are launching a robust outreach effort, holding discussions around the country and gathering input needed to shape a final rule. The proposed rule will be open for public comment for 90 days from the date of publication in the Federal Register.  We look forward hearing your views on this proposal.  Please find information about providing comment at: www.epa.gov/uswaters.

With respect to Region 8, the clarifications provided by this rule will lead to better protection of waters that are critical to the welfare of the people in our states of Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming.

• The proposed rule will provide direction on the application of the definition of “waters of the U.S.” to streams and adjacent wetlands in the upper reaches of watersheds where small tributaries may have only seasonal flow. When wetlands and headwater streams are filled or damaged, the risk of flooding increases, and drinking water supplies, wildlife habitat and recreation opportunities can be significantly impacted.
• The vast majority of the population in Region 8 is dependent on public drinking water systems that rely on high quality streams that do not flow year round. (Montana 67% of the population; 96% in Utah; 98% in Colorado and Wyoming; 100% in North and South Dakota).
• In Region 8, 77% of streams do not flow year round and wetlands make up only 2-3% of the land area, yet these streams and wetlands provide important habitat for wildlife and waterfowl, and harbor many plant species that could not survive in the surrounding terrestrial landscapes. For example, Colorado streams and wetlands provide habitat and benefits to an estimated 75% of the state’s wildlife and waterfowl.
• Flood events have recently led to significant economic losses, especially in Colorado and parts of the Northern Great Plains states. Wetlands act as sponges that filter and store water, alleviating the frequency and intensity of floods.

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

CTU Thanks Rep Polis for Standing with Rivers

Today - March 13 - the US House of Representatives will be voting on HR 3189, the Water Rights Protection Act.  The bill originated as a response to Forest Service policy that required ski areas to transfer their snowmaking water rights to the US as a condition of their ski area permits.  Unfortunately, the actual legislation as passed by House Committee goes far beyond addressing that narrow issue - and would jeopardize important authorities for federal land managers to protect streamflows on National Forests and other public lands.  These "bypass flow" authorities ensure that minimum stream flows can be maintained below dams and diversions on pubilc lands. Colorado Congressman Jared Polis (2nd CD), whose district includes some of Colorado's most popular ski areas, was a cosponsor of HR3189, but in light of the threat the bill now poses to healthy rivers has withdrawn his support and plans to offer an amendment to narrow the bill to its original purpose - requiring the Forest Service to adopt a new policy for ski area water rights which does not require their ownership to be transferred to the US Government.

Colorado TU thanks Congressman Polis for standing with Colorado's rivers, and supporting common-sense, balanced solutions that help protect healthy waterways while meeting the needs of Colorado's ski industry.  Click here to see Colorado TU's letter to the Congressman.  If you live in the 2nd Congressional District, please take a moment to thank the Congressman for his leadership - you can email him by clicking here.

Sportsmen Pleased with Decision to put Clean Water Act into Action in Bristol Bay

Provisions within the Act Could Halt Pebble Mine in the Heart of Wild Alaska Trout Unlimited today congratulated the Environmental Protection Agency for putting the Clean Water Act into action and potentially halting the infamous Pebble Mine in the headwaters of Alaska’s storied Bristol Bay watershed.

“It is difficult to overstate the significance of this announcement. If the EPA follows the science and follows through on this, it will rank as one of the most significant conservation achievements of the past 50 years,” said Trout Unlimited president and CEO, Chris Wood. “This is one of the few places left on earth where nature works as it should, and it’s a breadbasket for the world, supplying literally hundreds of thousands of people with wild salmon.”

By putting into action Section 404 (c) of the Clean Water Act, the EPA is starting a process that will determine if large-scale mining in the Bristol Bay watershed of southwest Alaska, specifically the Pebble deposit, can co-exist with the area’s renewable natural resources, most importantly the waters that provide the spawning and rearing habitat for the world’s largest sockeye salmon, as well as trophy rainbow trout, Dolly Varden, Arctic grayling and four other Pacific salmon species.

An EPA watershed report produced last year makes it clear that mining in this area would damage vital salmon habitat and, in the event of spills or accidents, put that habitat in imminent danger in perpetuity. By putting the process outlined in the Clean Water Act into play, the EPA is setting a very high—but reasonable and appropriate—bar for Pebble Mine to get over and prove there won’t be impacts to water quality and the region’s irreplaceable fishery.

“This is a very proactive and thoughtful decision on the part of the EPA, and we at Trout Unlimited join with the millions of sportsmen and women across America in congratulating Administrator McCarthy for taking this important step,” said Steve Moyer, vice president for government affairs. “This issue has been our top conservation issue for nearly a decade, and our volunteers from all over the country have worked very hard to get to this point. We’re very pleased that the EPA has heard our voices, and we are grateful that it is translating the desires of millions of anglers into action.”

Bristol Bay’s salmon provide upwards of 14,000 jobs in Alaska and the Northwest every single year, and about half of the world’s annual sockeye salmon harvest comes from this region. Additionally, this area of Alaska is known for its unparalleled sportfishing—it’s probably the best place in North America to catch rainbow trout that will stretch a tape to 30 inches or more.

“This is the best place in the world to fish for salmon and trout, period,” said Tim Bristol, director of TU’s Alaska Program. “Sportsmen and women from Alaska and all over the United States have led the charge against Pebble Mine and for the protection of Bristol Bay’s salmon and trout for a long time. To see the process put in place that could protect thousands of long-term jobs in the commercial fishing industry and the opportunity for coming generations to fish for salmon and trout in Alaska is very gratifying. While we won’t know the outcome of this process for some time, it’s clear the EPA is listening to anglers, hunters and the people of Bristol Bay. I hope sportsmen and women all over America will join me in applauding the EPA for taking this bold step.”

---Chris Hunt, National Director of Communications, chunt@tu.org

A Big Win for Fraser River

Sometimes, you get a win that brings home what it is we’re doing at TU, and that broadens your sense of what’s possible. The Fraser River in Colorado just got a new lease on life—and all of you that are part of Team TU made it happen.

This is one to celebrate.

It took a decade of hard work, persistence, and tough, complicated negotiations, but Trout Unlimited staff dug in for the long haul and—this week—announced a major deal with Denver Water and Grand County to secure a package of protections for the Fraser, a beautiful river beloved by generations of fly-fishermen and Coloradans.

This is a big, big win for Trout Unlimited and for river conservation in the West.  The Fraser is an outstanding wild trout river that has been hammered by years of diversions. Currently, Denver Water is taking about 60 percent of the natural flows of the Fraser, a key tributary of the Upper Colorado. They’ve proposed to take another 15 percent of the river through an expansion of their Moffat Tunnel diversion.

That would put the Fraser and its trout fishery on life support, unless the river received additional protections and mitigation to offset the potential impacts.

At times, the situation looked bleak. Denver Water and TU seemed far apart. But we stayed the course. Our members and supporters turned out for regulatory hearings and for public rallies in Denver. We laid the groundwork with science-based reports that proved the fishery needed more flows and restored habitat. We kept at the table with Denver Water, talking.

This victory is a great example of “One TU” teamwork—national staff, state council and grassroots working together. Mely Whiting of TU’s Colorado Water Project dogged this project for years, attending countless meetings, crunching mind-numbing technical data, and negotiating the shoals of the federal permitting process. Colorado Trout Unlimited council and staff, led by executive director David Nickum, helped at every step with negotiations and public education. Another TU strength—its local members—came through big time. Kirk Klancke, president of TU’s Colorado River Headwaters Chapter, spoke eloquently about the Fraser at every opportunity and spearheaded chapter-led restoration projects. (His passionate advocacy was the subject of a recent National Geographic profile online.) Other members showed up at key public meetings, at rallies to support the river, and submitted literally thousands of public comment letters to the federal agencies responsible for permitting the Moffat project.

Through these efforts, TU has secured a long-term agreement that, if adopted into the federal permit, holds the promise of a healthy Fraser River far into the future. Read the release for more details.

Of course, we didn’t do it alone.  Other conservation allies, local businesses and landowners including Devils Thumb Ranch, and the staff and elected officials of Grand County were incredible partners in achieving this victory – and will continue to be trusted partners as we tackle the long-term collaborative effort of protecting and restoring the Fraser basin. .

This is how TU gets things done--bringing a powerful grassroots voice to the cause, and working collaboratively to find pragmatic solutions.  And those efforts let us achieve our ultimate goal—saving our home waters and best places,.

Read the Mitigation and Enhancement Coordination Plan here:

Mitigation and Enhancement Coordination Plan.

Read Bob Berwyn's article on this landmark agreement in The Colorado Independent.