Colorado lawmakers are expected to consider legislation next session aimed at providing project permits while still protecting wetlands, which were left vulnerable after a U.S. Supreme Court decision in May.
The Environmental Protection Agency’s Clean Water Act has protected the “Waters of the United States” (WOTUS) since 1972. But exactly which wetlands and water bodies fall under the definition of WOTUS has long been the subject of litigation and policy that changed with each presidential administration. In Sackett v. EPA, the U.S. Supreme Court found that the definition of WOTUS did not include wetlands adjacent to streams. Only wetlands with a direct surface water connection to a stream or permanent body of water are now protected under the Clean Water Act.
While it is not always clear whether a wetland has a direct surface connection to a qualifying stream, experts say the decision removed federal protections from at least half of Colorado’s wetlands. The ruling also excludes from protection many ephemeral streams that run only seasonally during spring runoff or summer monsoons.
The state will have to decide how to protect the wetlands that now fall outside the purview of the Clean Water Act, which water policy experts are calling “gap waters.”
According to a policy brief by Andrew Teegarden, a water fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado Boulder, “the Supreme Court’s decision in Sackett created a gaping hole in Colorado’s program for protecting and regulating discharge and fill activities and the current state of the law in Colorado is inadequate to fill the gap.”
“Sackett was more devastating than anyone envisioned it being,” said Alex Funk, director of water resources and senior counsel at the Theodore Roosevelt Conservation Partnership. “Basically, if it’s not a continuously flowing stream or interstate river, it’s no longer protected.”
The main way many wetlands had federal protection under the Clean Water Act in the past was through a permitting process with the U.S. Army Corps of Engineers. Developers and property owners had to get a 404 permit — also known as a dredge-and-fill permit — if they wanted to undertake certain projects that involved wetlands. The corps applied guidelines and criteria for making sure the project would not destroy or degrade the waters.
The Colorado Department of Public Health and Environment is now expected to present to lawmakers a state-level permitting process that would step in to fill the regulatory gap left by Sackett v. EPA. Last summer, CDPHE enacted a new policy that requires notice of discharge into state waters and allows the agency to take enforcement actions when unpermitted discharges of dredge and fill materials takes place. This policy was intended to be temporary while the state comes up with a permanent program.
CDPHE has also been meeting with and taking input from stakeholders — including environmental groups, agriculture interests and water providers — to explore creating a more permanent regulatory program to protect Colorado’s streams and wetlands to the same extent they were protected before the Sackett v. EPA decision.
In August, Trisha Oeth, CDPHE’s director of environmental health and protection, told lawmakers at a meeting of the Water Resources and Agriculture Committee that the agency has been hearing from stakeholders that any program should have a clear scope and also avoid permitting delays. She said stakeholders want to maintain the status quo and do not have an interest in developing a program that goes beyond the scope of what was federally protected prior to Sackett v. EPA.
“We are going to need to be creative here in Colorado to address those concerns about balance — preserving the status quo with having an efficient program,” Oeth said. “We’ve also been hearing it’s really important to protect source waters.”
One example of those source waters is a type of sensitive, high-country wetland now potentially left vulnerable: fens. These are groundwater-fed wetlands that form peat over thousands of years, are home to rare plants and insects, and cannot be easily restored if destroyed. Fens are sometimes isolated with no stream as an outlet.
“All of our groundwater-fed wetlands are outside of the Clean Water Act regulation now,” said David Cooper, a senior research scientist at Colorado State University and a fen expert. “In the San Juan mountains, we did a project and I think we estimated there were about 10,000 fens, and most of them, because of the Sackett decision, would not be considered adjacent to navigable waters.”
Cooper said most of the water that feeds streams in Colorado goes through fens in the highest part of watersheds, which remove sediment and pollutants. They are also a key piece of the ecosystem that support biodiversity, he said.
“Fens occupy a 10th of 1% of our landscape, but they support probably 25% of species in Colorado,” Cooper said. “Their importance greatly exceeds their tiny presence on the landscape.”
Aaron Citron, a senior policy adviser for The Nature Conservancy, said any new state program should provide regulatory certainty, redirect development to less environmentally sensitive areas and be consistent with the best available wetlands science.
“Every presidential administration has kind of redefined the scope of the 404 program,” he said. “And that’s not good for regulated entities; it’s not good for the natural environment. It just makes everything more complicated. So, one of the goals is to just set a standard and decide that Colorado knows what’s best for Colorado waters.”
Aspen Journalism is a nonprofit, investigative news organization covering water, environment, social justice and more. Visit http://aspenjournalism.org.
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