On December 10, the Colorado Water Quality Control Commission took a major step forward in protecting important wetlands and streams across Colorado that were at risk from unregulated development after rollbacks under the federal Clean Water Act.
The Commission approved rules that will guide a state dredge and fill permitting system and ensure that most Colorado waters, including wetlands, can’t be destroyed without going through an environmental review process.
The state rules were needed to ensure protection for wetlands and waters (including source streams that do not flow year-round) that were no longer subject to Clean Water Act protections under the Army Corps of Engineers permitting program for dredge and fill activities.
The scope of streams covered by those federal protections was dramatically weakened by the 2023 Sackett decision by the US Supreme Court, the largest rollback of Clean Water Act protections since its adoption in the 1970s.
Colorado became the first state in the nation to develop a state permitting program in response to the Supreme Court’s decision limiting the scope of the Clean Water Act.
The state rules are even more critical given efforts to continue narrowing federal protections. Just last month, the federal government proposed further limiting the Clean Water Act such that it would no longer protect 97% of Colorado’s remaining wetlands and 68% of the state’s stream miles – those that don’t flow year-round, but are the sources of the water on which our downstream rivers and communities depend.
The rulemaking was directed by HB24-1379, which passed the General Assembly last year. We are deeply grateful to the bill sponsors whose vision for a comprehensive Colorado water protection program that was as strong or more than the pre-Sackett federal program has been the touchstone for this process throughout. Representatives McCluskie and McCormick and Senator Roberts have been true champions of Colorado’s rivers.
The rulemaking process itself was marked by multiple efforts from regulated interests to narrow the program’s scope and weaken the state program. The final outcome reflected some reasonable compromises among the competing interests, retention of key protections for Colorado waters, and a couple of disappointments - most notably around the “public interest” review. Some of the key issues that were addressed and their outcomes:
Scope of the program – earlier in the process there was a push to limit Colorado’s program and analysis to “non-Waters of the United States” regulated by the Corps, but given the legislature’s clear direction for a comprehensive program we successfully had that language removed.
Exclusion for wetlands near ditches – the legislature excluded some specific wetlands from protection, including those adjacent to and supported by ditches (human-caused wetlands that exist only because of ditch seepage). The state proposed clear and appropriate definitions for “adjacent” and “supported by” but some polluter interests sought to remove those – leaving the rule ambiguous and opening the door for litigation and widespread loss of wetlands – as many as 500,000 acres that are within a half-mile of ditches. The Commission adopted a reasonable compromise that ensures this exclusion does not swallow the rule and leave vast areas of wetlands unprotected
Compensatory mitigation – multiple recommendations from Colorado TU and coalition partners were approved, ensuring that mitigation for lost wetlands functions are more appropriately addressed in the rule and in future agency guidance that will be developed to direct applicants for state permits. Importantly, the Commission rejected proposed language that would have codified the idea that ephemeral streams have less ecological importance and need less mitigation. On the downside, our proposal for a more robust science-based definition of wetland functions (to help inform what mitigation is needed) was not adopted.
Alternatives analysis – mirroring the federal Clean Water Act, the state law ensures that only the “least environmentally damaging, practicable alternative” can be approved for a project. Industry groups had sought to limit the range of alternatives that might be reviewed, but the Commission adopted language proposed by our conservation allies that ensures the defined purpose of a project cannot be so narrow as to prevent considering a reasonable range of alternatives.
Public Interest review – in addition to its water quality and alternatives review, the Army Corps when issuing Clean Water Act Section 404 permits conducts a “public interest review” looking more broadly at a project’s impacts on the environment and communities and ensuring that approved projects are in the public interest. The Public Interest review helps provide a final safeguard against damaging projects that might nonetheless clear the bar of water quality reviews. Unfortunately, the Commission removed this public interest review from the state program; the state permitting review focus will more narrowly on water quality and aquatic resources.
While the rules adopted by the Commission are not everything we sought, they are an important first step for Colorado’s environment and economy. Because of the hard work of the state legislature, the Colorado Water Quality Control Division, and the Commission, Colorado’s waters are better protected.
Colorado Trout Unlimited participated in the rulemaking hearing as part of the Healthy Rivers Coalition, alongside our partners with Audubon, American Rivers, Blue River Watershed Group, Boulder Watershed Collective, Coalition for the Poudre River Watershed, Coalition for the Upper South Platte, Eagle River Coalition, Friends of the Yampa, Great Old Broads for Wilderness, High Country Conservation Advocates, Uncompahgre Watershed Partnership, and Western Slope Conservation Center.
The coalition was represented with great effectiveness and commitment through the generous pro-bono support of Sarah Matsumoto and the University of Colorado’s Getches-Green Natural Resources, Energy, and Environmental Law Clinic. Our work also benefited from technical experts Ashley Giles and Jackie Corday, and the communications expertise of Mark Eddy.
We are deeply grateful to the many TU members and supporters who testified or signed the citizen petition urging strong protections for Colorado’s waters and wetlands. Your voices as river champions helped make a real difference in protecting Colorado waters.
