New wetlands, stream oversight proposal surfaces at the Colorado Capitol

Colorado lawmakers will consider a fresh proposal to grant the state authority to oversee streams and wetlands left unprotected by a U.S. Supreme Court decision last year.

House Bill 1379, sponsored by House Speaker Julie McCluskie, D-Dillon, Rep. Karen McCormick, D-Longmont, and Sen. Dylan Roberts, D-Frisco, would allow the Colorado Department of Public Health and Environment (CDPHE) to oversee a wide array of industrial players, including home and road builders and mining companies, and determine what steps are necessary to minimize any damage to streams and wetlands caused by their activities.

In May, the U.S. Supreme Court issued a ruling in Sackett vs. EPA that sharply limits the streams and wetlands that qualify for protection under the Clean Water Act, a decision that water observers said had a particularly broad impact in the West. In Colorado and other Western states, vast numbers of streams are temporary, flowing only after major rainstorms and during spring runoff season, when the mountain snow melts.

In addition, hundreds of Colorado wetlands lack an obvious surface connection to streams, in part because so many of the state’s streams don’t flow year-round.

“As a state we don’t want to let a good crisis go to waste,” McCluskie said in a briefing last week, referring to the Sackett decision and the regulatory gap that was created. “Our water is part of the romance and tradition of being a Coloradan. Protecting those waterways could not be more important. But we recognize there needs to be clarity and certainty for our industry partners. And we have tried to be very considerate of differing viewpoints.”

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.

The U.S. Supreme Court decided in May 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 be up to Colorado and other states to decide whether and how to handle that regulation — including permitting — and enforcement.

Colorado enacted temporary emergency protections last year to give the state time to create a new program.

And last month, Republican Sen. Barbara Kirkmeyer, of Brighton, introduced  Senate Bill 127, also designed to fill the regulatory gap. The Kirkmeyer measure, which has broad industry support, is scheduled for its first hearing April 4, but it’s likely to meet stiff resistance in the Democratic-controlled General Assembly.

Among the key differences between the two measures is that Kirkmeyer’s proposal states that any new rules can’t be more restrictive than those in place prior to the Sackett decision, while McCluskie’s says protections should be “at least as protective” as those in place at that time, according to Jarrett Freedman, spokesman for the House Democrats.

Another difference is that Kirkmeyer’s bill would place the new oversight program within the Colorado Department of Natural Resources instead of the CDPHE. Kirkmeyer said a huge permitting backlog at CDPHE  shows the agency would be unable to handle dredge-and-fill permitting required under her proposal.

McCluskie, however, believes the new program would be better housed within the state health department and that new funding would alleviate permitting delays.

The first hearing on the House Bill 1379 has not been scheduled, Freedman said.

A broad array of environmental groups has come out in favor of McCluskie’s measure.

“Wetlands are nature’s kidneys, they filter natural pollutants, they help reduce the severity of wildfires,” said Josh Kuhn, senior water campaign manager at Conservation Colorado who spoke on behalf of the Protect Colorado Waters Coalition.

“But the Sackett decision left many of those wetlands unprotected … and we have also lost protections for seasonal streams.  If pollution is dumped into streams when snow melts and runs off, that pollution gets washed into the larger rivers. … If there is mining or development activity and they are dumping fill, or dirt, into dry streambeds, when there is water moving through those streambeds it is going to take those pollutants with it and pollute our water supply,” he said.

Farm, homebuilding and mining interests have been closely watching the bill, which includes extensive exemptions for agriculture for such things as irrigation ditch repair, and on-farm water management activities. It also includes some exemptions for mining operations.

But there is still concern about the regulatory burden the new program will place on those industries and the time it will take to write new regulations and launch the program.

House Bill 1379 stipulates that rules be written by May 31, 2025.

“The rulemakings that they are contemplating are going to be complicated and detailed, and it’s going to be a lot to accomplish in a short period of time,” said John Kolanz, a northern Colorado attorney who often represents developers and who is tracking the bill. “It seems like a tall task.”

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