What’s the best way to protect hundreds of acres of wetlands and streams in Colorado, in the absence of federal rules that once did that work? It’s one of the biggest water issues facing state lawmakers this year.
But as the legislative session kicks into high gear, there is no consensus yet on how to proceed.
Last week, Republican Sen. Barbara Kirkmeyer, introduced Senate Bill 127 as a first stab at figuring it out.
At issue is how the U.S. Environmental Protection Agency now defines so-called Waters of the United States, or WOTUS, which determines which waterways and wetlands are protected under the federal Clean Water Act. The definition has been heavily litigated in the nation’s lower courts since the 1980s and has changed dramatically under different presidential administrations.
In May, in Sackett v. Environmental Protection Agency (EPA) the U.S. Supreme Court decided, among other things, that the WOTUS definition that included wetlands adjacent to streams, was too broad.
In its ruling, the court said only those wetlands with a direct surface connection to a stream or permanent body of water, for instance, should be protected.
The court’s decision in the WOTUS case means it will now be up to the state to handle that regulation — including permitting — and enforcement.
Last year limited temporary emergency protections were put in place to give the state time to create a new program.
Water experts said the Sackett decision and the new Colorado permitting program will have far-ranging implications for the environment, as well as agriculture, construction and mining, all major parts of Colorado’s economy.
The Sackett decision may have more impact in semi-arid Western states, where streams don’t run year-round and wetlands often don’t have a direct surface connection to a stream.
The U.S. Geological Survey, for instance, estimates 44% of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24% are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32% of Colorado streams are classified as being perennial, meaning they flow year-round.
Kirkmeyer’s bill would create a new, nine-member commission appointed by the governor that would be housed in the Colorado Department of Natural Resources. The commission would oversee a staff responsible for issuing permits regulating how any activity impacting nearby streams and wetlands, such as road building, home construction and mining, would be conducted to minimize and repair any disturbances the activity caused. It would also sharply limit the kinds of streams and wetlands that could be protected, in keeping with the narrow scope enshrined in law by the U.S. Supreme Court in its Sackett v. EPA decision, Kirkmeyer said.
“These waters are important to all of us,” the Brighton lawmaker said.
Wetlands along like these along Big Sandy Creek run the breadth of the May Cattle Ranch near Lamar, Colorado, providing habitat to a wide variety of birds, from sparrows to eagles. (Mike Sweeney, Special to The Colorado Sun)
The bill is supported by the Colorado Livestock Association, Weld County and the mining giant Freeport-McMoRan. Conservation Colorado and the Sierra Club, and liberal environmental nonprofits, oppose the measure.
Kirkmeyer said she proposed placing the program in the Department of Natural Resources, in part, because the Colorado Department of Public Health and Environment’s Water Quality Control Division has been plagued with huge backlogs in processing permits in other programs it oversees.
Her proposal, however, may face an uphill battle in the Democratically controlled legislature. There are also questions about what the state’s new regulatory burden will mean in terms of cost.
A broad-based working group convened last year by the Colorado Department of Public Health and Environment is still analyzing options on how best to address the regulatory gap, and has been briefing lawmakers on possible options. Those options, however, would likely give the regulating job to the Colorado Department of Public Health and Environment and would likely seek to cover a broader class of streams and wetlands than Senate Bill 127 envisions, according to Alex Funk, a member of the working group who is also director of water resources and senior counsel at the Teddy Roosevelt Conservation Partnership.
Funk said he wants to see a bill that is housed within the health department and which offers broader protection for uniquely Colorado waters, such as fens, a kind of high-altitude bog, as well as playa lakes, small shallow pools found on the high plains.
“There is a real opportunity (this session) for Colorado to provide some clarity once and for all with a program that is inclusive of all stakeholders,” Funk said.
“The federal program has been a tennis ball,” he said, referring to the program’s long history of lawsuits over shifting definitions of what constitutes protected wetlands and streams.
“Everyone has agreed that hasn’t worked well. But I think Colorado can get this right.”
Colorado Sun staff writer Jesse Paul contributed to this report.
Fresh Water News was launched in 2018 as an independent, nonpartisan news initiative of Water Education Colorado. Our editorial policy and donor list can be viewed at wateredco.org.
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