How Colorado Stayed a Massive Rollback in Water Protections and What It Could Mean for the Rest of the Country

While Americans grappled with continued news of race-based violence and protests, widespread unemployment, and COVID-19 infection rates spiking in multiple states, a rule affecting most of the nation’s water quietly went into effect in much of the country — though not quite all of it.

On June 22, the Environmental Protection Agency and the Army Corps of Engineers officially ended a federal regulation known as the Clean Water Rule that had protected most of America’s wetlands, rivers and streams. They replaced it with a weaker rule that leaves many American waterways vulnerable to increased pollution.

This rollback is a devastating blow that erases decades of progress and threatens the drinking water for millions of people and the health of national park waterways across the country. More than two-thirds of national park waters already do not meet the quality standards set under the Clean Water Act. The administration’s action further degrades sites such as Big Bend and Everglades National Parks and Mississippi National River and Recreation Area, among many others.

A coalition of 17 states, the District of Columbia and New York City tried to stop or delay implementation of the rule nationwide, but the U.S. District Court for the Northern District of California denied that request.

But in Colorado, it’s a different story. The state sued the EPA and Army Corps on the grounds that they ignored the science demonstrating how downstream water quality is connected to protecting upstream sources, disregarded existing Supreme Court precedent, and contradicted the Clean Water Act’s goals. A district court issued an injunction to keep the Clean Water Rule in effect in the state, preventing pollution from mining, manufacturing and large farms from entering waterways. The federal government has appealed.

The Colorado lawsuit is one of several legal actions challenging the Clean Water Rule rollback. NPCA’s own analysis, conducted by the Emmett Environmental Law and Policy Clinic, found the EPA and Army Corps to be legally and scientifically unjustified in replacing the rule in several serious ways, including:

• The new rule eliminates protections for some wetlands and temporary streams found mostly in arid parts of the country known as ephemeral streams, which have a significant influence on downstream water quality. By failing to adequately analyze and protect these waters, the new rule threatens water quality, fish and wildlife habitat, and recreational opportunities.
• The new rule disregards the scientific and technical reasoning in the Clean Water Rule, and the EPA and Army Corps have failed to explain why.
• Changes in what is covered under the Clean Water Act under the new rule creates uncertainty, confusion and administrative hassles for agencies that regulate the nation’s waters.
• The EPA and Army Corps are violating the Endangered Species Act and National Environmental Policy Act by replacing the Clean Water Rule without sufficiently analyzing the effects on endangered plants and animals and the environment, as required under those laws.

NPCA is closely monitoring existing legal actions for opportunities to protect waters nationally, so people and other living things can maintain healthier waterways for drinking, swimming, fishing, boating and other recreational pursuits.

Fortunately, lawyers aren’t the only people fighting for clean water — some lawmakers are, too. In May, Reps. Peter DeFazio and Grace Napolitano introduced the Clean Water for All bill in the House of Representatives to restore the protections in the overturned Clean Water Rule. NPCA strongly supports the bill.

Regardless of whether the fight to restore Clean Water Rule protections makes progress in the courts, in Congress or through changes by future agency leaders, it could take years to reverse the damages caused by last month’s actions. Fortunately, NPCA and our advocates have been fighting to protect our nation’s waters for 101 years, and we’re in it for the long haul — because the health of our parks and communities depends on it.