Proposed rules could place “basically every drop of Colorado water” under the federal government’s jurisdiction, increasing permitting requirements, mitigation and costs for projects needed to ensure future water supplies in a state that’s expecting big shortages.
That was the general consensus among the several water officials, representatives of the agriculture industry and others who traveled from across the state to voice their concerns to Rep. Cory Gardner, R-Colo., at his Greeley office on Thursday.
Gardner encouraged those at the table and others who are concerned to continue raising their voices to the Environmental Protection Agency, which will take comments on its proposed rule through Oct. 20.
The EPA has long stressed that its proposed “Waters of the U.S.” rule is simply an effort to clarify protection under the Clean Water Act for streams and wetlands, since determining Clean Water Act protection became confusing and complex following Supreme Court decisions in 2001 and 2006.
But many are stressing now that the EPA’s attempted clarification would instead expand the federal government’s reach, with much more water and area falling under the EPA’s “Waters of the U.S.” rules, according to their interpretations of the proposed rules.
New projects and certain maintenance on “Waters of the U.S.” requires federal permitting and, depending on the circumstances, possibly environmental mitigation efforts, which can mean a lot of time and money for the municipality, ditch company or whoever is overseeing the effort.
As an example, Mark Pifher with Colorado Springs Utilities compared the permitting and mitigation costs of Aurora’s Prairie Water Project — which was only $1.5 million, because it didn’t fall under “Waters of the U.S.” rules — to the $150 million in permitting and mitigation it took for the Colorado Springs Southern Delivery System, which did fall under “Waters of the U.S.” rules.
Along with more projects and maintenance facing increased permitting and costs, some on Thursday even expressed concerns of the EPA eventually taking control of water in Colorado, because the state’s individual water-rights holders wouldn’t be able to put them to use.
Water officials from across Colorado stressed that the EPA’s rules are a one-size-fits-all-approach, and don’t take into account how differently water works in the semi-arid or arid West — where water storage, reuse, groundwater recharge and other efforts are needed to get by — compared to the much wetter eastern U.S.
The “connectivity” language in the proposed rules — which places areas and waters that are merely “connected” to “Waters of the U.S.” under the federal government’s jurisdiction — is particularly concerning to those who were at Gardner’s table Thursday.
The group said the fact that the EPA still believes it’s only clarifying its rules and not expanding its reach only reveals a big misunderstanding of how water works in the West and in Colorado.
Some at the table Thursday said that perhaps Congress — with representation of all states — is better equipped than the EPA to take charge of the rule-making.
Ag groups — like the Colorado Farm Bureau, which was represented at the table by Don Shawcroft, the organization’s president — are pushing their “Ditch the Rule” campaign.
Among other points, Shawcroft noted that the EPA’s existing “agriculture exemptions,” which would still apply under the new rules, wouldn’t do much good for farmers and ranchers, since those exemptions only apply to operations that are still under the same ownership and under the exact same practices as they were in 1977.
“Agriculture has changed a lot since then,” he added.
Impacts on NISP?
Eric Wilkinson — general manager of the Northern Colorado Water Conservancy District in Berthoud, which oversees the largest water-supply project in the region, the Colorado-Big Thompson Project — said “basically every ditch” and “every drop of Colorado water” could fall under the EPA’s jurisdiction under the new rules.
Because of that, he and everyone else at the table stressed, that the future costs and time to permit water projects or maintenance might detour officials, water providers or others from pursuing certain needed actions.
And in a state that, according to the 2010 Statewide Water Supply Initiative study, is expected to see a municipal and industrial water-supply gap of as many as 1 million acre-feet by 2050, and also see as many as 700,000 acres of irrigated farmground dry up by that same year, many water projects are needed, they say.
Under the proposed rule, Wilkinson said one of the “needed projects” that Northern Water is overseeing — the Northern Integrated Supply Project, or NISP, which would build a new reservoir near Fort Collins and another one near Ault — could possibly have to “go back to the drawing board” on some its federal permitting efforts, which have already been in the works by Northern Water for more than a decade.
Wilkinson and others said the complications resulting from more area and water in Colorado falling under “Waters of the U.S.” rules could also detour collaborative water efforts between cities and farmers. As many retiring farmers over the years have sold their valuable water rights to growing cities, many are now pushing for alternative water transfers between farmers and cities that would reduce the amount of water permanently leaving the state’s farms.
Improvements to irrigation ditches and other irrigation systems, too, could require more permitting and more costs under the new rules.
“There’s certainly more questions than answers,” noted West Slope rancher and Colorado Farm Bureau Vice President Carlyle Currier. ❖