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<br />Colorado believes <br />the cumulative <br /> <br />that an appropriate interpretation of the phrase "similarly situated lands in the region" needs to consider <br />impacts of potential activities on multiple tributaries upstream of traditionally navigable waters within a <br /> <br />Guidance at page 9. (It is noteworthy that the reference to the term <br />Kennedy's complete phrase: "similarly situated lands in the region" <br /> <br />.) <br /> <br />'similarly situated" leaves out a reference Justice <br /> <br />where evaluating significant nexus for an adjacent wetland, the agencies will consider the flow characteristics <br />and functions performed by the tributary to which the wetland is adjacent along with the functions performed by the <br />wetland and all other wetlands adjacent to that tributary. This approach reflects the agencies' interpretation of <br />Justice Kennedy's term "similarly situated" to include all wetlands adjacent to the same tributary. <br /> <br />Our major concern with the current EP NCorps Guidance is the restrictive reading of Justice Kennedy's "significant nexus" <br />test. In articulating the significant nexus test, Justice Kennedy stated that wetlands have a significant nexus to traditionally <br />navigable waters when "either alone or in combination with similarly situated lands in the region" the wetlands significantly <br />affect the chemical, physical and biological integrity of traditionally navigable waters. The focus on the cumulative impacts <br />of multiple smaller waters is fully consistent with the "watershed" approach to water quality management advocated by EP A <br />for many years. Unfortunately, the current guidance abandons this watershed approach and ignores the reality of the <br />importance of cumulative impacts by focusing only on the waters adjacent to a specific tributary in making a jurisdictional <br />determination. For example, the Guidance states: <br /> <br />Narrow Readin <br /> <br />As a headwaters state, protection of our high quality water resources is a high priority for the State of Colorado. These <br />resources include waters in such national treasures as Rocky Mountain National Park and numerous federal wilderness areas. <br />Colorado is concerned that the narrow reading of RaDanos reflected in the current EPA/Corps Guidance may result in a <br />significant reduction in federal protection of certain water resources in Colorado, thereby shifting to the State the burden of <br />protecting such waters. <br /> <br /> <br />nificant <br /> <br />Nexus Test <br /> <br />The State of Colorado offers the following comments on the Environmental Protection Agency (EPA) and U.S. Army Corps <br />of Engineers (Corps) June 5, 2007 Guidance regarding Clean Water Act Jurisdiction Following the U.S. Supreme Court's <br />Decision in RaDanos v. United States & Carabell v. United States (Rapanos). <br /> <br />Dear EPA <br /> <br />Re <br /> <br />Water Docket <br />Environmental Protection Agency <br />Mailcode: 2822T <br />1200 Pennsylvania Avenue, NW <br />Washington, D.C. 20460 <br /> <br />Docket ID No. EPA-HQ-OW-2007-0282 <br /> <br />January <br /> <br />4300 Cherry Creek Dr. S. <br />Denver, Colorado 80246-1530 <br />Phone (303) 692-2000 <br />TOO Line (303) 691-nOO <br />Located in Glendale, Colorado <br /> <br />http://www.cdphe.state.co.us <br /> <br />17,2008 <br /> <br />Laboratory Services Division <br />8100 Lowry Blvd. <br />Denver, Colorado 80230-6928 <br />(303) 692-3090 <br /> <br />Colorado Department <br />of Public Health <br />and Environment <br /> <br />Bill Ritter, Jr., Governor <br />James B. Martin, Executive Director <br /> <br />improving the health and environment of the people of Colorado <br /> <br />Dedicated to protecting and <br /> <br />STATE OF COLORADO <br /> <br /> <br />;lib <br />