Advocacy Discusses WOTUS Woes with Small Businesses in the Mile-High City

By Prianka Sharma, Assistant Chief Counsel

The Mile-High City provided the perfect backdrop for Advocacy’s National Waters of the United States roundtable. In Denver, Colorado, Advocacy heard from over twenty-five small business representatives from a variety of industries. The Army Corps of Engineers and the Environmental Protection Agency proposed a revised definition of the Waters of the United States in February 2019. The rule attempts to clarify those waters that are under federal jurisdiction and thus subject to federal permitting requirements.

Attendees stated that, as a headwater state, Coloradans take their clean water seriously. Overall, attendees were pleased with the proposed rule’s attempt to clarify the definition; however, they noted some areas where more clarity is necessary.

One representative of the Colorado Pork Producers trade association was concerned about the rule’s ability to withstand a court challenge. She stated that the definition of intermittent flow should be more specific, and it should include some sort of measure for amount of time and/or total flow of the water. This is important because those waters with intermittent flow may or may not be subject to jurisdiction depending on whether or not they flow into a jurisdictional water.

Another attendee who represented the oil and gas industry stated that the agencies should preserve flexibility and offer an option to obtain a preliminary jurisdiction determination, so businesses are not surprised later if the agencies determine that the waters in question are jurisdictional.

One representative of the Colorado Farm Bureau spoke about the need for a specific time period for intermittency in arid areas with significant periods of drought. In Colorado, some areas experience significant drought for months or years at a time. This changes drastically when there are large sporadic snow or rain events. These water flows may drain into jurisdictional waters thus making them subject to permitting requirements. Attendees worried that the rule did not specifically address these situations.

Finally, attendees spoke about the need to clearly define and distinguish the terms snow pack and snow melt, as the rule seemed to confuse the two. As a state with significant run-off from mountain snow melt, this clarification was especially important.

It was clear from the attendees’ comments that Western and headwater states have their own unique concerns and challenges with Clean Water Act jurisdiction. Advocacy will host one final roundtable in Tampa, Florida. Written comments on the rule are due on April 15, 2019.

Prianka Sharma is an Assistant Chief Counsel for Advocacy whose portfolio includes natural resources, agriculture, and energy. She attended Advocacy’s National Waters of the United States roundtable in Denver, Co., in March. Sharma can be reached at Prianka.Sharma@sba.gov. Read more about Advocacy’s WOTUS outreach here.