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The Suncor refinery in Commerce City is pictured on Sand Creek near where it meets the South Platte River. Both streams have highly challenged water quality, though many conservationists argue they can get still better. (Andy Colwell, Special to The Colorado Sun)

A year ago, the state’s water quality commissioners overruled not only their staff but other state agencies like Colorado Parks and Wildlife, along with a broad and very angry coalition of conservation groups.

Now, according to the conservation groups, the commission is about to do the same thing again. Only this time, the river advocates say, their proposals threaten every river in the state, weakening a bedrock 33-year-old rule the state uses to implement the federal Clean Water Act. 

Colorado industries and city wastewater plants could legally dump more pollution into state rivers if water quality commissioners endorse this year’s plan while also sticking with last year’s changes, conservation groups say. 

They argue the actions would mean the potential reversal of intensive efforts to clean city waters flowing past low-income areas already heavily impacted by economic and environmental problems. 

They claim it opens the way for water dischargers like Metro Wastewater, Molson Coors and others to seek permits for discharges that would further degrade waters they themselves have already tainted. 

“It’s just going to roll the clock backwards on pollution,” said Mely Whiting, legal counsel for the Colorado chapter of Trout Unlimited. 

Last year, the Colorado Parks and Wildlife division argued to upgrade protection of the South Platte and Clear Creek by saying there is “no evidence that pollution is irreversible,” according to supporting statements filed at the state. The Water Quality Control Commission in June rejected stronger protections for those urbanized stretches of water, including Clear Creek, which flows out of Golden and past the Molson Coors plant on its way to the South Platte. 

“I’ve always felt that a strong anti-degradation policy is very important in Colorado,” Water Quality Control Commission Paul Frohardt said during last year’s hearing about the South Platte and Clear Creek. “But I also believe that that policy makes sense and will have broad public support when it’s focused on truly high quality waters.”

Conservationists are debating with water quality officials how far the state’s highly urbanized streams can improve. Here a black-crowned night heron prowls the banks of Sand Creek in Commerce City on Wednesday, May 26, 2021. (Andy Colwell, Special to The Colorado Sun)

Now the commission is taking on a scheduled five-year review of the anti-degradation rule applying statewide. Conservationists fear the commission is leaning toward loosening the strictest level of water quality review for all streams. 

The “anti-degradation” rule currently in place says polluters seeking a new or renewed water quality permit must make a compelling argument that worsening the conditions of a stretch of river is an unavoidable part of an important economic development or civic improvement. 

They must offer this proof even if the given stretch of water is already better than EPA water quality minimums. The state has until now effectively raised the floor of quality as a stream improves, and says those waters can’t be “degraded” below the new floor.

The Water Quality Control Commission has proposed new rules critics say would weaken that long-standing practice, by allowing dischargers to degrade the overall quality of a stream if even one regulated contaminant in the stream is already high. 

Fierce opposition by conservationists

Big water dischargers who opposed the upgrade of urban river protections in written statements last year include Metro Wastewater, whose treated discharge makes up most of the water in the South Platte through Commerce City, and heavy industrial water users like Coors, according to state documents. 

Metro Wastewater declined to comment. Molson Coors spokesman Marty Malone said in an emailed statement, “We have an established track record of leading water protection initiatives in our industry. We do not support degradation of water quality.”

Now that commissioners are pushing for a statewide weakening of the anti-degradation rule at their June 14 meeting, environmental advocates from Audubon to Trout Unlimited to Conservation Colorado are combining to mount fierce opposition. 

Decades of intense and expensive cleanup efforts on urban streams like the South Platte, including by Metro Wastewater, have improved water quality and given the river a chance at more fish, wildlife and recreation, the coalition says. The state’s job is to keep pushing for even cleaner water, Whiting said, not to clear the way for backsliding.

“That’s exactly what the Clean Water Act was supposed to do, is make things cleaner, going from burning rivers like the Cuyahoga,” through Cleveland, “to rivers that are swimmable and fishable,” Whiting said. 

“This proposed rule change would almost certainly result in degradation of many additional Colorado streams, rivers and wetlands in direct contradiction to the aims of the Clean Water Act,” according to a brief written by the conservation coalition, which also includes American Rivers, Audubon Rockies, Conservation Colorado, the San Juan Citizens Alliance and Western Resource Advocates.

The proposed change “actually encourages dischargers to degrade water quality,” the conservation brief says. “A discharger could take advantage of a single pollutant exceedance, whether or not the discharger caused or contributed to it, as a license to increase the levels of pollution in the stream for all pollutants.” 

At last year’s hearing, commission chairman Frohardt mentioned concerns of Metro Wastewater and others that they shouldn’t be responsible for further cleaning up river sections like the urban South Platte, because the waters are unlikely to ever support a major improvement in fish and wildlife beyond what they’ve recently achieved. 

“If in fact people get really good at treatment and better control of other urban impacts, and we want to revisit that in the future, that’s certainly possible,” Frohardt said, in recommending against the staff request to upgrade protections for those sections. 

State officials said Thursday they are writing alternate versions of the change that they hope will satisfy concerns of the conservation groups. The commissioners will hear the various proposals and arguments about them in their June 14 meeting — the public can sign up to make comments here.  

“We’ve heard from some people that they feel like it’s going to have the result of a lot of waters in Colorado being degraded, and I don’t think that’s an accurate characterization of the result,” said Trisha Oeth, acting director of the Water Quality Control Division and director of environmental policy for the Colorado Department of Public Health. The state will still be able to require changes if permit-seekers are not pledging enough water protection, she said.

State officials have struggled, though, to explain why the regulations need to be changed. Clarifying the rules, Oeth said, will help establish how Colorado rivers got to their current water condition, and “to provide more clear direction to the commission about how to apply that past when they’re considering the specific example of segments in the future.” 

The conservation alliance said the draft alternatives are also unacceptable unless they come with much stronger language guaranteeing the state will include economic justice concerns, and the voices of impacted neighborhoods, when considering controversial water discharge permits. 

In filings opposing this year’s broader change, the alliance said it appears the commission is still searching for justification for a bad decision last year, rejecting staff recommendations that would have boosted protection for Clear Creek and the South Platte. 

“It is alarming enough that the commission is considering a state-wide relaxation of the protections Colorado’s antidegradation rule provides,” the alliance’s rebuttal said. “But, it would be entirely inappropriate for the commission to do so solely to confirm post hoc the regulatory relief provided (to) two dischargers last year.”

Trout Unlimited’s Whiting said, “The commission did a very wrong thing last June. And they need to be told to fix it and not do it again.” 

Michael Booth

Michael Booth is a Colorado Sun reporter covering health, health policy and the environment. Email: Twitter: @MBoothDenver