Colorado to shield thousands of acres of wetlands, miles of streams after U.S. Supreme Court left them vulnerable

The Blanca Wildlife Habitat Area, located in the San Luis Valley, is about 15 square miles in area. (Olivia Sun, The Colorado Sun via Report for America)

Thousands of acres of Colorado wetlands and miles of streams, left unprotected by a U.S. Supreme Court decision last year, would be shielded under a hard-won measure that was approved this week by a bipartisan group of state lawmakers.

Environmental advocates say Colorado leads the nation in adopting such regulations, which will replace certain Clean Water Act rules that were wiped out 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 for Conservation Colorado. “It had a lot of attention because of the magnitude of the bill. There were dozens and dozens of meetings to try and strike the right balance. We’re really happy with this final piece of legislation.”

The Sackett case sharply limited 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, or ephemeral, flowing only after major rainstorms and during spring runoff season, when the mountain snow melts. The Sackett decision said, in part, that only streams that flow year-round are subject to oversight. It also said that only wetlands that had a surface connection to continually flowing water bodies qualified for protection. Many wetlands in Colorado have a sub-surface connection to streams, rather than one that can be observed above ground.

The legal decision came after decades of federal court battles over murky definitions about which waterways fall under the Clean Water Act’s jurisdiction, which wetlands must be regulated, what kinds of dredge-and-fill work in waterways should be permitted, what authority the act has over activities on farms and Western irrigation ditches, and what activities industry and wastewater treatment plants must seek permits for.

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

“It also sets the federal regulations as the floor, not the ceiling, so that Colorado can go above and beyond those to ensure we are protecting our resources,” Kuhn said.

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

While Senate Bill 127 ultimately was not approved, a number of exemptions it contained to address concerns of farmers, miners, developers and some cities, were […]

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