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Eco-Justice Notes
The E-mail Commentary from Eco-Justice Ministries

The Waters of Garden Gulch
distributed 10/17/14 - ©2014

This week's issue of Eco-Justice Notes is underwritten by Tom & Dolly Pakurar of Midlothian, Virginia. Their generous support helps make this publication possible.

The Garden Gulch incident in western Colorado happened more than eight years ago. Last month, when a friend asked to reflect on new Clean Water Act regulations, Garden Gulch came to mind as a splendid example of why the rules are important.

Parachute, Colorado, is a small town beside the Colorado River, in an arid landscape surrounded by tall cliffs and high mesas. That part of my home state was the center of Colorado's earliest drilling-and-fracking boom. The whole area has a dense concentration of natural gas wells.

During the winter of 2007-8, Garden Gulch, just north of Parachute, was the site of four spills and leaks from oil and gas drilling. In the most prominent "discharge" (the drilling company said it was not a "spill"), a million gallons of fluids seeped into the ground on the mesa top, then oozed out of a cliff, where it formed a gigantic frozen waterfall.

When the frozen waterfall was first discovered, there was no surface water in Garden Gulch. But when the weather warmed up, the waterfall melted into Garden Gulch. The gulch started to carry "milky gray water" down to Parachute Creek, which in turn flows into the Colorado River.

The story was front-page news for quite a while, kept in the headlines by the iconic and often-used photo of the 200 foot tall tendrils of ice draped down the cliff, with the drilling rig clearly seen just above. As I thought back to that story, I wondered if the million gallons of polluted water that drained into Garden Gulch were addressed by the Clean Water Act.

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The Clean Water Act -- passed in 1972, and substantially revised in 1977 and 1987 -- has been a powerful tool for reducing pollution in the waters of the United States. Especially in light of two Supreme Court decisions (in 1985 and 2001), though, the definition of that key phrase, "waters of the United States," has been confused and controversial. The definitions range between two extremes.

In the broadest interpretation, those waters include wetlands, rivers, streams, lakes, ponds and the territorial seas -- pretty much any water, anywhere. Under the most restrictive consideration, only the "navigable waters" of the country are covered -- just oceans, big lakes and major rivers. The two Supreme Court decisions define the waters somewhere in the middle, using astonishingly vague language like a "significant nexus" between navigable waters and "other waters." The court rulings left a lot of uncertainty about what waters were subject to federal oversight.

Two key questions have been up for grabs in this debate about the scope of the Clean Water Act. What qualifies as a "tributary" of the navigable waters? What waters are disconnected from the navigable waters, and thus not covered by the Clean Water Act?

Last spring, the Environmental Protection Agency proposed regulations to clarify the definitions, in the hopes that life would become -- if not easier -- at least less confusing for both regulators and the regulated. The proposal has become very controversial, both because it is very difficult to write clear-cut regulations that cover the enormous variety of waterways across the US, and because some of the affected parties don't like where the dividing lines have been drawn.

The proposed rules acknowledge the ongoing confusion, and frequently ask for comments on particular details to help clarify the definitions.

I have been looking at the million gallon discharge into Garden Gulch as a case study for the contested ground in this debate. Should federal regulations protecting "the waters of the United States" apply to this valley in the dry lands of western Colorado?

That winter, there was no water running in the bottom of the gulch. This is precisely the kind of situation that had been unclear, and that the new rules are designed to address.

From my reading through the proposed regulations -- 88 pages of redundant legalese, and a 2-page summary -- I'm glad to say that Garden Gulch, Colorado, should be counted among "the waters of the United States." The definitions are very clear that intermittent, seasonal, and even "ephemeral" streams that drain into larger waters have the all-important "significant nexus" that brings them under the umbrella of the Clean Water Act. As the proposed regulations say:

The Report concludes that the scientific literature clearly demonstrates that streams, regardless of their size or how frequently they flow, strongly influence how downstream waters function. Streams supply most of the water in rivers, transport sediment and organic matter, provide habitat for many species, and take up or change nutrients that could otherwise impair downstream waters.

The incident at Garden Gulch shows that the navigable waters, such as the Colorado River, cannot be protected if their tributary streams are defined as insignificant. A million gallons of fluids from oil and gas drilling coursed down the sometimes-dry bed of the gulch. That looks like a very significant nexus to me, a very clear connection between a seasonal stream and a major river.

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At the very back end of the proposed rules, there's a section that spells out the importance of the regulations. This is not the work of a batch of bored bureaucrats playing linguistic games, or looking for places to go meddle. The rules have very real implications.

After all the long discussions about what does and does not count as "waters of the United States" (including a clear statement that "puddles" don't count), there is a listing of where these definitions will be applied. The headings refer to laws about "discharge of oil," "oil pollution prevention," "determination of reportable quantities for hazardous substances," and "disposal sites for dredged or fill material."

If our nation's waters are to be protected from oil pollution, hazardous substances, and various kinds of fill material, then precise definitions are needed about qualifying tributaries and wetlands. The proposed rules give needed clarity to complex situations.

The EPA has a special section of their website dealing with the "Waters of the United States" rules. There are good summaries, reassuring statements about what situations are excluded from the definitions, and a link for submitting comments.

Clean water is important to all of us. The readers of Eco-Justice Notes, I assume, come to these water issues with a strong sense of God's creation as an ecological, interconnected system, and with a deep concern for environmental justice for all people. I hope you see why clear rules are necessary.

I encourage you to submit a comment to the EPA, affirming the rules, and -- as we've seen with Garden Gulch -- stressing the need to include all tributaries of navigable waters under the protection of the Clean Water Act.

Shalom!

Peter Sawtell
Executive Director
Eco-Justice Ministries

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