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Congressman Ken Buck

Representing the 4th District of Colorado

EPA's Clean Water Rule meets with outrage from Republicans, praise from Democrats

May 28, 2015
In The News

The Environmental Protection Agency’s newly finalized rule on clean water unleashed a flood of criticism Wednesday from Colorado Republicans, who accused the Obama administration of engineering a federal power grab.

The agency’s hotly contested “Waters of the United States” rule expands the list of waterways covered by the federal Clean Water Act, which EPA officials said would ensure that more Americans gain access to drinking water from streams, wetlands and rivers protected by the law.

“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” said EPA administrator Gina McCarthy in a statement.

But critics contend the rule goes beyond the intended scope of the Clean Water Act and runs roughshod over state and private water rights, setting up a framework for the federal government to impose regulations on virtually any surface water, no matter how insignificant.

“This rule represents a massive expansion of federal power and puts the EPA in the ludicrous position of acting as the main regulator of ponds, ditches, and even intermittent streams across the country,” said Republican Sen. Cory Gardner in a statement.

The rule is expected to have an outsize impact on Western states, including Colorado. About 68 percent of Colorado streams are considered seasonal and their status under the Clean Water Act was previously disputed.

“Generations of state and local officials have crafted water rules that take community needs into account while ensuring that water is kept clean,” Gardner said. “Now, this rule threatens to wash all those years of state water law away and drown communities and businesses in federal red tape.”

In a statement, EPA officials insisted that the measure, originally referred to as the “Waters of the U.S.” but later changed to the Clean Water Rule, “only protects the types of waters that have historically been covered under the Clean Water Act.”

“It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways — not land use or private property rights,” said the agency.

Still, alarm over the issue led the House to pass May 12 the Regulatory Integrity Protection Act, which prohibits the EPA and Army Corps of Engineers from implementing the rule. Twenty-four Democrats joined 237 Republicans in approving the bill, although the Colorado congressional delegation voted along party lines.

A similar measure introduced in the Senate won subcommittee approval Tuesday.

The EPA estimates that 177 million people, or 1 in 3 Americans, have been getting drinking water from sources that “lacked clear protection,” while critics argue that the Clean Water Act was only intended to cover “navigable waters,” not creek beds and other surface water.

Republican Rep. Ken Buck said he was “furious that the President has once again taken unilateral action that is widely opposed by business and agriculture alike.”

“He is out of control, and I will do everything in my power to rein him in. WOTUS is terribly harmful for the economy of rural Colorado and a disaster for small business across America,” said Buck in a statement.

Meanwhile, Colorado Democrats and environmental groups applauded the decision, saying it clears up confusion over which waterways are covered by the Clean Water Act in the wake of U.S. Supreme Court rulings in 2001 and 2006.

“The final rule clarifies Clean Water Act jurisdiction after previous court decisions left one in three people across our nation in danger of losing access to clean drinking water,” said Democratic Rep. Diana DeGette. “This long-overdue rule will provide certainty for businesses and agriculture, and I will work to make sure it is implemented fairly.”

Democratic Rep. Jared Polis said, “By balancing environmental safeguards with a streamlined regulatory process for small businesses and addressing the concerns my constituents expressed, the EPA and Army Corps have made a strong and lasting commitment to the future of Colorado and our country.”

Clean Water Action Colorado director Sara Lu took a swipe at Gardner, urging “members of Congress like Senator Cory Gardner to stop attempting to undermine this commonsense rule to protect clean water.”

“Clean water is too important to Colorado for dirty water politics,” said Lu in a statement.

Two key Colorado Democrats — Gov. John Hickenlooper and Sen. Michael Bennet — had no immediate comment on the finalized rule, but the governor has raised concerns in the past. In a letter last year in his capacity as head of the Western Governors Association, Hickenlooper urged the EPA “to engage states as authentic partners in the management of Western waters.”

Bennet spokesman Philip Clelland said the senator was reviewing the rule’s details, adding that he “hopes it will be workable for Colorado.”

“He’s heard from farmers and ranchers, sportsmen, water providers, and local governments who are all asking for the certainty a balanced rule can provide,” said Clelland in an email. “Based on comments submitted from stakeholders in Colorado, Senator Bennet will look for clarity on several fronts beyond what was outlined in the draft rule, including the treatment of irrigation ditches. He’ll also seek additional feedback from Coloradans across the state.”

Already, however, Bennet is coming under pressure from environmental groups to oppose Senate efforts to block the rule from taking effect.

“Sen. Bennet has sided with our rivers over the polluters before, and we need him to do so again,” said Environment Colorado spokeswoman Kim Stevens in a Wednesday statement. “Today the administration signed and sealed critical protections for our rivers and streams, but they simply won’t get delivered without Sen. Bennet.”

Then again, Bennet has other factors to consider: He faces a tough reelection fight in 2016 and risks inflaming the state’s agriculture community if he opposes the legislation. The Colorado Farm Bureau warned in an April blog post that the EPA rule could be a “regulatory nightmare for farmers.”

Republican Rep. Scott Tipton said Wednesday that he was still examining the rule’s fine print, but that “from what we see at first glance, it still warrants the same concerns we have stated many times — that it is overreaching and expands the EPA’s regulatory scope to encompass virtually all forms of surface water.”

“This is more of the same from an Administration notorious for doing everything possible to ratchet-up government control over the private water rights of American citizens,” Tipton said in a statement. “Ultimately, legislative solutions such as the Water Rights Protection Act and the Regulatory Integrity Protection Act are needed to provide certainty and protections for private water rights users from Executive overreach.”

The rule will be posted in the Federal Register and take effect 60 days after publication.