27 ‎(3)‎

• Board Meeting Date: 1/23/2008
• Description: Director's Report - IBCC Director
• Board Meetings - Doc Type: Memo

Colorado believes that an appropriate interpretation of the phrase "similarly situated lands in the region" needs to consider
the cUl1lu~at!ve impacts of potential a~tiv!t!es~o~ multiple tribut~a~ies ~uJ>stre~m oftraditional~~ navigabl~e~~ate!s~~ithin a

G~~d~ance at p~ge .~. (It Js nO~~~9rthy t~atJhe. referel1~~e 10 the tcm:n~~~irnilaIJY sitlJated"leav~es oMt a r<<fer~n~~ Justice
Kennedy's complete phrase: "similarly situated lands in the region".)

... where evaluating significant nexus for an adjacent wetland, the agencies will consider the flow characteristics
and functions performed by the tributary to which the wetland is adjacent along with the functions performed by the
wetland and all other wetlands adjacent to that tributary. This approach reflects the agencies' interpretation of
Justice Kennedy's term "similarly situated" to include all wetlands adjacent to the same tributary.

Our major concern with the current EPNCorps Guidance is the restrictive reading of Justice Kennedy's "significant nexus"
test. In articulating the significant nexus test, Justice Kennedy stated that wetlands have a significant nexus to traditionally
navigable waters when "either alone or in combination with similarly situated lands in the region" the wetlands significantly
affect the chemical, physical and biological integrity of traditionally navigable waters. The focus on the cumulative impacts
of multiple smaller waters is fully consistent with the "watershed" approach to water quality management advocated by EP A
for many years. Unfortunately, the current guidance abandons this watershed approach and ignores the reality of the
importance of cumulative impacts by focusing only on the waters adjacent to a specific tributary in making a jurisdictional
determination. For example, the Guidance states:

Narrow Readin

As a headwaters state, protection of our high quality water resources is a high priority for the State of Colorado. These
resources include waters in such national treasures as Rocky Mountain National Park and numerous federal wilderness areas.
Coiorado is concerned that the narrow reading of Rapanos reflected in the current EPAlCorps Guidance may result in a
significant reduction in federal protection of certain water resources in Colorado, thereby shifting to the State the burden of
protecting such waters.

nificant

Nexus Test

The State of Colorado offers the following comments on the Environmental Protection Agency (EPA) and U.S. Army Corps
of Engineers (Corps) June 5, 2007 Guidance regarding Clean Water Act Jurisdiction Following the U.S. Supreme Court's
Decision in Raoanos v. United States & Carabell v. United States (Raoanos).

Dear EPA

Re:

Water Docket
Environmental Protection Agency
Mailcode: 2822T
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460

Docket ID No. EPA-HQ-OW-2007-0282

January

4300 Cherry Creek Dr. S.
Denver, Colorado 80246-1530
Phone [phone]
TOO Line (303) 69l-nOO
Located In Glendale, Colorado

http://www.cdphe.state.co.u8

7,2008

Laboratory Services Division
8100 Lowry Blvd.
Denver, Colorado 80230-6928
[phone]

Bill Riner, Jr., Governor
James B. Martin, Executive Director

DedIcated to protecting and improvIng the health and environment of the people of

Colorado

..)

(ft

Colorado Department
of Public Health
and Environment

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