A popular blog called TV Tropes has a post beginning, “So, you won a war, you bask in the glory of victory, and all that stuff. But when you finally get over all this excitement, you realize your problems still aren’t solved; perhaps you bungled the end-game negotiations… or your strategic genius doesn’t extend to politics.”
It is an apt description of the bungled approach Colorado is apparently taking after its victory in the battle against the federal water and power grab known as Waters of the U.S. (WOTUS). Colorado was one of the key states that stopped EPA’s 2015 takeover of virtually all the water in the country. Then, just as the agency had withdrawn and reset the scale, back in favor of state primacy over water rights, Colorado has abandoned the field and joined the other side.
Remember, when EPA published its onerous new “interpretation” in 2015, it essentially proclaimed federal jurisdiction over every stock watering pond, ditch, puddle, and parking lot drain in the country. It would have subjected to EPA jurisdiction all activity that touches on any water. That was a vast expansion of federal jurisdiction under the Clean Water Act, which explicitly applies to America’s major rivers, bays, and oceans. Inland waters belong to the states.
Colorado helped lead the legal challenge, joined by half the other states, and a federal Court of Appeals blocked WOTUS implementation in all 26 states, ruling that EPA had exceeded its statutory authority. However, a few other states (all with less at stake than Colorado in terms of water) litigated in support of the Obama Administration, and a different federal court disagreed, supposedly reinstating the 2015 rule in those states. The result was a WOTUS rule blocked in only 26 states, though that effectively put WOTUS on hold through the next election. The inconsistency and confusion made it a campaign issue in 2016, with candidate Donald Trump promising to repeal the new rule if elected. He was, and he did.
In the Spring, EPA issued new guidelines, essentially returning the earlier understanding of its jurisdiction over waters that are at least contiguous to major navigable rivers. That was not a radical giveaway of environmental protection, just the cancellation of an illegal power grab. It was a hard-fought victory for Colorado.
In a move that should seem shocking to Colorado leaders, who have always viewed protecting Colorado’s water as a non-partisan duty, newly-elected State Attorney General Phil Weiser, shortly after taking office, withdrew Colorado from the litigation, expressing support for the Obama-era Rule. Now, he has gone well beyond political posturing, and filed suit against the EPA’s newly rewritten “Navigable Waters Protection Rule,” seeking reinstatement of the Obama-era rule – the one that was such a threat to Colorado that the Democratic legislature and Governor Hickenlooper were willing to clash with President Obama over it.
Understandably, some environmental groups oppose Trump’s action in keeping his promise to the West, still preferring federal control over water. But the State officially endorsing that view, spending public funds to do so, upends 144 years of Colorado water law, and more than a century of leadership in both parties, defending Colorado water rights against federal control. Since 1952, the federal government has waived its sovereign immunity in water cases, affirming that water belongs to the states. A Colorado Attorney General attempting to erode that deference invites federal mischief that could seriously endanger future growth and prosperity for his own State. EPA tried to end that deference, but the West has won that battle. That is, unless its own leaders decide to surrender before the ink is dry on their victory.
Attorney General Weiser’s action also flies in the face of the 2016 law signed by Governor Hickenlooper, intended to give the federal government something it has needed for a long time, a little pushback. The “Colorado Water Rights Protection Act” passed unanimously, re-asserting the constitutional principle that waters of Colorado belong to the people of Colorado, are appropriated under State law, and administered by the State. It was more than symbolic. It signaled the State Attorney General, and other State agencies, that they are authorized and encouraged to take legal action when Colorado water rights are threatened by federal overreach.
That is not just as political rhetoric; it is State policy – unless we surrender before the ink is even dry on the victory document. Perhaps the unanimous legislature that enacted the “Colorado Water Rights Protection Act” should tell the Attorney General they meant it.
This column originally appeared in the Grand Junction Daily Sentinel June 26, 2020.
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