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Colorado to protect thousands of acres of wetlands and miles of streams

Thousands of acres of Colorado wetlands and miles of streams left unprotected by last year’s U.S. Supreme Court decision will be included in a hard-won solution approved this week by a bipartisan group of state lawmakers.

Environmental advocates say Colorado is leading the nation in passing such regulations, which would replace certain provisions of the Clean Water Act that were struck down last year in the U.S. Supreme Court case Sackett v. EPA.

“Colorado is the first state to pass legislation on this issue,” said Josh Kuhn, senior water campaign manager at Conservation Colorado. “The case aroused great interest due to the size of the bill. There were dozens of meetings trying to find the right balance. We are really pleased with this latest piece of legislation.”

This Fresh Water News story is a collaboration between The Colorado Sun and Water Education Colorado. Also appears on wateredco.org/fresh-water-news.

The Sackett case sharply limited the number of streams and wetlands eligible for protection under the Clean Water Act. This decision, according to water observers, had a particularly wide impact in the West. In Colorado and other Western states, a vast number of streams are temporary or ephemeral, flowing only after heavy downpours and during spring runoff when mountain snow melts. The Sackett decision stated in part that only year-round streams are subject to supervision. It was also stated that only wetlands with surface connections to constantly flowing water bodies are protected. Many wetlands in Colorado have a subsurface connection to streams rather than one that can be observed above ground.

The legal decision comes after decades of federal court wrangling over unclear definitions about which waterways fall under the jurisdiction of the Clean Water Act, which wetlands must be regulated, what types of dredging in waterways should be allowed and what authority the act has over activities on farms and western irrigation ditches, and for what activities industry and sewage treatment plants must apply for permits.

With the passage of House Bill 1379, which passed Monday, Colorado wetlands are once again formally protected, as are ephemeral streams, Kuhn said.

“It also establishes federal regulations as a lower limit, not an upper limit, so Colorado can go beyond those regulations to ensure our resources are protected,” Kuhn said.

House Bill 1379, sponsored by House Speaker Julie McCluskie, D-Dillon, Republican Karen McCormick, D-Longmont, and Sen. Dylan Roberts, D-Frisco, was one of two proposed bills to address the regulatory gap created by the Sackett Decision. Senate Bill 127, sponsored by Sen. Barbara Kirkmeyer of Brighton, was the second.

Although Senate Bill 127 was ultimately not approved, a number of its exceptions intended to address the concerns of farmers, miners, developers and some cities were ultimately added to House Bill 1379, and Kirkmeyer also signed on to the measure, becoming a sponsor Senate with Roberts.

These exemptions were important for gaining support for the interests of farms and real estate, including: according to John Kolanz, a lawyer representing developers who served on the state working group that helped lay the groundwork for the new regulations.

“There was a lot of movement from the first draft to the end. The Barb Act played a big role in this. This is an important program that touches many people, interests and activities. I think the end result is pretty good,” Kolanz said.

Among the added exemptions was a rule expressly excluding maintenance work on irrigation ditches and canals. Another exempts work that disturbs less than one-tenth of an acre of wetlands or 3/100 of an acre of stream bed.

“If you’re a developer … and you don’t exceed these thresholds, you don’t need permission, you just need to follow best management practices,” said Kuhn, who was one of the negotiators who hammered out the details of the final deal on the legislation.

Furthermore, in the case of installing a pipeline or lining a ditch, this activity is exempt if it can result in the protection of water resources.

House Bill 1379 also gives regulators the ability to add one staffer in the Western Slope to help administer the program in that region and provides nearly $750,000 in the state’s budget for the 2024-25 fiscal year and nearly $250,000 next year to obtain a new program regulatory agency, housed within the Colorado Department of Public Health and Environment, is now operational.

Senate Bill 127 proposed placing the program within the Colorado Department of Natural Resources due to concerns about the existing backlog in CDPHE’s wastewater program.

The decision to place the program in the CDPHE comes with requirements requiring frequent reporting to lawmakers to ensure health officials have the resources they need to review and issue permits, Kuhn said.

The Water Quality Control Commission will have until December 31, 2025 to finalize regulations implementing the new law.

The act is waiting for the voivode’s signature.

“In Colorado, where rivers and streams are the lifeblood of our land, our agriculture and our communities, the importance of water cannot be overstated,” Kirkmeyer wrote in a text message. “I believe House Bill 1379 will provide the strongest protections for Colorado’s streams and wetlands that we have had in the last 50 years.”