On September 13, the Colorado Water Quality Control Commission moved to reclassify the section of the South Platte River that runs through Commerce City and the section of Clear Creek where Coors facilities release discharges as reviewable, after demoting the stretches to use-protected in 2020.
Once those segments became use-protected, entities were allowed to discharge waste without community review of permits or other proposed actions, as long as the discharges didn’t cause the South Platte to dip below minimum water-quality standards.
Every five years, the WQCC examines what level of protection should apply to certain stretches of water in the state, but a petition filed by the Environmental Justice and Conservation Coalition, which includes many nonprofits and community groups like Trout Unlimited, Conservation Colorado, Western Resource Advocates and GreenLatinos — had argued that the commission should revisit its decision early. And on September 13, advocates got their wish when those areas were returned to reviewable status, allowing no significant degradation even if water quality is above minimum standards.
“This is a historic moment for Colorado,” says Ean Thomas Tafoya, Colorado state director of GreenLatinos. “Impacted communities are empowered, organized and partnered with allies."
Commission Chair April Long cited an enhanced awareness of environmental justice between the time the commission made its choice in 2020 and its new decision as one reason for the change.
During the hearing, which started on September 12, the Environmental Justice and Conservation Coalition argued that the use-protected designation does not meet the commission’s rules for determining a stream’s status.
The required criteria used by the WQCC in determining the status of a river or stream is called the twelve-parameter test. A river can be designated as use-protected if measurements of three or more of twelve listed pollutants do not meet minimum water-quality standards. According to data presented by opponents, E. coli is the only pollutant in this section of the South Platte that has not met the standard.
The commission can also apply the substantial pollution test to determine if substantial natural or irreversible pollution is causing a stream to be use-protected, but as many entities — including the Colorado Department of Public Health and Environment and Colorado Parks and Wildlife — testified, that test does not fit these circumstances.
During the 2022 legislative session, Representative Adrienne Benavidez sponsored a bill requiring the WQCC to follow its own rules regarding the twelve-parameter test. During the hearing, the City of Denver suggested that the timing of that bill, which was enacted in June, meant it did not apply to the South Platte situation.
The city didn't take a position on whether the river segments should be reviewable or use-protected but said it had “significant process concerns” regarding whether the WQCC was allowed to rule that its previous decision was inconsistent with regulations and then move to change the rivers’ status back to reviewable during the same hearing.
The WQCC went into executive session with its legal counsel after hearing testimony to gain clarity on those questions and a few other legal concerns.
Molson Coors was the main opponent of the coalition’s petition request. Gabe Racz, speaking for Coors, argued that E. coli impairment is irreversible because of urban runoff, and presented data that other parameters in the twelve-parameter test had been exceeded at select locations along Clear Creek, or on specific days, over the past five-year period. Coors also asked the commission to hold off its re-designation until the usual 2025 proceeding.
Coors agreed with the City of Denver that even if the WQCC determined that the use-protected rule was inconsistent with regulations, replacing the designation requires a second rulemaking hearing.
But Stefanie Neale, an assistant attorney general who presented with the CDPHE, said the department felt it was appropriate to replace the designation in this hearing. “Despite all the statutory language being thrown around, the ultimate analysis here is something that you all do all the time in any standard basin hearing,” Neale said to commissioners. “You're free to focus on doing that routine analysis, using the same metrics that you usually use.”
The CDPHE recommended that the commission adopt the coalition's proposal. CPW and the Environmental Protection Agency also testified in support of the coalition, with CPW providing clarifying testimony that the single-day exceedances of copper and cadmium, along with other issues faced by Clear Creek and the South Platte, aren’t part of the required twelve-parameter test.
The EPA had approved the WQCC’s 2020 decision, but as the EPA's David Moon explained, that was because the EPA applied federal rules, which are much less stringent, since the WQCC had acted outside its rules.
“What we're saying today is, if you want your decision to be consistent with the Colorado statute, which does include specific tests that are not found in the federal rule…we're agreeing with the comments from the coalition and the division that we recommend adoption of the coalition's proposal,” Moon said.
The public also had a chance to chime in, and every commenter supported the coalition proposal to redesignate the streams as reviewable, particularly because of their importance to the communities near the water.
“These urban rivers provide opportunities for the youth to spend time in nature and have been the starting place for many lifelong paddlers,” said Kestrel Kunz, Southern Rockies associate stewardship director for American Whitewater. “The benefits of these rivers go far beyond on-water recreation. The South Platte segments run through Commerce City and north Denver, which are home to many low-income populations that have been disproportionately affected by poor, poor water quality for years. Every Coloradan, regardless of their income, should have access to clean rivers.”
At the end of the hearing, all of the commissioners agreed that, based on the data, the previous use-protected ruling was inconsistent with WQCC regulations; they determined that the streams should again be reclassified, dismissing the argument pushed by the City of Denver and Coors that a second hearing would be needed to begin the reclassification process.
“I found Molson Coors’s arguments in this case to be flawed, misleading and frankly disappointing,” Long said. “I am offended that a company that makes its products and brands itself off of the clean water in this state would argue against protection for that water.”
Commissioner Julie Zahringer noted that public comment in support of recreation along the river, including speeches by anglers, rafters and those who bike and walk along the river, made it easy to see, beyond the data, that the streams in question are important to the local community.
The WQCC plans to take final action to revert the stream segments to reviewable at its October meeting.
“Trout Unlimited truly thanks the Commission for listening,” says Mely Whiting, legal counsel for Trout Unlimited's Colorado Water Project. “This is a victory for the communities that live by, and recreate in, these urban streams, and whose members came out to ask that their home rivers be protected.”