Nothing signifies America’s winning battle against water pollution and wetlands destruction like the Clean Water Act (CWA).  For more than 30 years, the CWA, which evolved from pollution legislation dating back to 1948, has helped clean up waterways, build and improve pollution treatment facilities, and protect streams and wetlands from bulldozers and midnight dumpers.  We have come a long ways from the days when the Cuyahoga River caught fire in Cleveland.  The Clean Water Act is the foundation upon which protection of rivers, wetlands, and water quality rests.

Or, at least it used to be.

Two U.S. Supreme Court decisions, both by a 5-4 vote, have stripped away some of the Clean Water Act’s most critical protections. The Court rulings removed Clean Water Act protection first from isolated wetlands (in the 2000 SWANCC case) and then from intermittent and emphemeral streams unless they have a "significant nexus" with navigable waters (in the 2006 Rapanos case).  The Court’s narrow interpretation of the law, compounded by even narrower interpretation by the EPA and Army Corps of Engineers in their guidance documents, now excludes isolated wetlands and many intermittent or ephemeral streams (streams that don't flow perennially) from CWA protection because they don’t have an adequate connection to navigable waterways. 

What does this mean?  For any intermittent or ephemeral stream, it means that that individual stream must have a significant connection with the quality of water in a navigable water.  In Colorado, the Army Corps of Engineers has defined only two navigable waters - the Colorado River below Grand Junction and the portion of Navajo Reservoir that extends into southwestern Colorado.  To assure CWA protections, an ephemeral stream would need to demonstrate a signficant connection to the quality of those waters - a nearly impossible standard.  Of course, collectively Colorado's ephemeral streams have an enormous impact on water quality - but that combined effect is ignored under the Administration's new CWA guidance. 

The end result is that the CWA protections that we have taken for granted over the past 30 years are no longer assured for ephemeral and intermittent streams, not to mention the countless acres of low-lying and seasonal wetlands and fens.  For anglers that focus on perennial streams that support fish, this may not at first seem critical - until you consider that ephemeral and intermittent streams make up more than 75% of Colorado’s 107,000 stream miles and that their condition shapes the quality of the downstream waters.  We cannot protect our rivers without protecting their headwaters.

This map shows Colorado's perennial streams (blue) and its ephemeral/intermittent streams (red) - data from Colorado Division of Wildlife.  A higher resolution copy of the map is available through the links at left.

Fortunately, Congress is now considering legislation - the Clean Water Restoration Act - that would restore CWA jurisdiction to the waters that were protected throughout the 1970s, 80s and 90s - using the long-standing definitions that guided CWA enforcement by the EPA and Army Corps of Engineers throughout those decades.  The Act does not create new regulatory burdens, it simply restores the CWA to where it was before the recent Court and Administration rollbacks.  CTU strongly supports passage of the Clean Water Restoration Act, and encourages Colorado's elected officials to do the same.  At left are links offering more information on these issues and the Clean Water Restoration Act.