Colorado lawmakers grapple with High Court ruling on wetlands
BY MARIANNE GOODLAND email@example.com
The Gazette, Colorado Springs
The 2024 legislative session is likely to see lawmakers trying to figure out how to protect Colorado wetlands following a recent U.S. Supreme Court decision that applied a more stringent test on what should be considered one. A panel of legislators last month heard pleas from municipal and state officials to come up with a policy to continue to protect the state’s wetlands in light of Sackett v. Environmental Protection Agency, a case that redefined the terms by which a body of water can get protection under the Environmental Protection Agency’s “Waters of the United States” rule. They said half of Colorado wetlands — meaning nearly a million acres — could lose protection and that any state action should provide clarity to water users and businesses, particularly when it comes to permitting. The panel also deliberated practical questions, such as which agency should be in charge of any new permitting program. The high court in May ruled 9-0 in favor of the Sacketts, an Idaho couple who, in 2004, bought land on which they wanted to build a home. The parcel was located about 300 feet from Priest Lake, one of the state’s largest. They began backfilling the lot with dirt and gravel, which earned them the attention of the EPA. The agency said the land contained a protected wetland and blocked that development, in part because the Sacketts did not obtain a permit for dredging and filling from the U.S. Army Corps of Engineers, which manages wetlands. The Sacketts sued, a process that took more than 14 years to reach the U.S. Supreme Court. The majority opinion, authored by Justice Samuel Alito, relied on a 2006 opinion in Rapanos v. United States written by Justice Antonin Scalia. That opinion held “any wetland that does not connect at its surface to another body of federally protected water doesn’t merit the same degree of protection.” So, why do wetlands matter? Alex Funk, director of water resources and senior counsel for the Theodore Roosevelt Conservation Partnership, offered an answer at the Colorado General Assembly’s Water Resources and Agriculture Review Committee meeting in August, held during the Colorado Water Congress conference. Funk said almost 90% of fish and wildlife in Colorado rely on the state’s wetlands at some point during their life cycle. That includes species such as the Gunnison sage grouse, greenback cutthroat trout and migratory birds, he said. These ecosystems are also crucial to the state’s economy, Funk said, and provide other benefits, such as filtering pollutants from drinking water or regulating sedimentation that may otherwise clog up infrastructure and reservoirs. One major effect of the Sackett decision is on what’s known as the 404 permitting system, which is under the U.S. Army Corps of Engineers, Funk explained. Those permits are used for dredging a river for navigation purposes or filling in wetlands for construction, as was the case with the Sacketts. The court’s decision, Funk said, created a narrow definition of “adjacent” that means the wetlands are virtually indistinguishable from a permanent body of water. That’s the premise under which the Sacketts sued the EPA, that a road divided the wetlands on their property from a lake, meaning those wetlands were not adjacent. The decision will have significant repercussions on water quality and flood control throughout the United States, Funk said, noting early estimates saying that 50% of the nation’s wetlands will no longer have federal protection — some 60 million acres of wetlands. Colorado has about 1.8 million acres of wetlands, and what Sackett means for Colorado is that 50% will lose their protection, according to Aaron Citron of the Nature Conservancy. “Wetlands really are the kidneys of our state water system and we want to make sure they remain healthy,” Citron told the committee. That will require Colorado to take its own action — decoupled from any action by the federal government — to provide certainty to water users, he said. Fort Collins Mayor Jeni James Arndt, a former state representative, talked to the committee about how Sackett could affect her community and noted the federal funding available from the Bipartisan Infrastructure Act. She said construction projects funded by the act are on the way, such as for more water storage, Front Range Rail or other projects. She told committee members she hopes at least one or two of them would be enticed to come up with legislation: “I just can’t overestimate the importance of a thorough, reasonable permitting program that allows permits and protects the environment.” The state’s next steps also need to consider “environmental justice,” according to Breanna González, the Colorado field coordinator for Hispanics Enjoying Camping, Hunting and the Outdoors, which is affiliated with the National Wildlife Federation. The Sackett decision will significantly affect Colorado’s cultural identity as it relates to hunting, fishing and other outdoor activities — pursuits deeply intertwined with state heritage and economy, González said. Fishing, in particular, is a cornerstone of tradition and recreation for local economies, with wetlands supporting ecosystems that sustain fish and wildlife, she said. Such activities play a pivotal role in conservation efforts, added González, who asked lawmakers to come up with policies that will confront “environmental injustice” and shield communities from flooding and wildfires, another benefit wetlands provide since they absorb excessive rainfall and snowmelt. Sen. Byron Pelton, R-sterling, raised a practical question about just where that permitting process would be housed: the Department of Natural Resources or the Department of Public Health and Environment. Arndt replied that would be a choice for lawmakers. In March, Gov. Jared Polis, in anticipation of the Sackett decision and new rules from the Environmental Protection Agency, set up a task force, managed by the public health department, that is taking comments through the fall on the policy that could be in front of lawmakers next year. Gabe Racz, an attorney with Vranesh and Raisch who is a member of that task force, told lawmakers the state’s Water Quality Control Act prohibits the discharge of a pollutant to state waters, as well as authorizes a discharge permit program. But that act does not cover a state dredge and fill permit program, relying on the Army Corps of Engineers for that over the decades. “If Colorado wants to control its water future, then conversations among water users and environmental interests are really a key in order to develop a program that is appropriate for Colorado,” Racz said. That policy should be clear on which waters fall under its scope, with a clear list of waters where permits are not required and activities that are not subject to regulation. “This is a lesson from the federal program where ambiguity has been costly, both in terms of environmental protection” and for projects that see delays, which run up costs, he said. A Colorado dredge and fill program should also continue to recognize that projects that operate under a 404 permit are in compliance, he added. “While Colorado statute is clear that we can be reactive and protect our wetlands and streams if they’re damaged by dredge and fill activity, our statute does not give Colorado’s state government the ability to issue permits” for that activity, said Tricia Oeth, director of environmental health and protection at the state’s public health agency. The agency has come up with a temporary policy to protect the status quo, she said, but it only allows the state to respond after damage has occurred to a water body and that policy also doesn’t provide certainty or a clear pathway for doing business. “Businesses need certainty in a permitting program,” she told lawmakers. To Pelton’s question about who is in charge, Oeth said a variety of state agencies are working together, including the departments of natural resources and agriculture. The input they’re hearing from groups is to come up with a clear program scope and requirements, and to avoid permitting delays, Oeth said. “We’re going to need to be creative here in Colorado to address both of those concerns,” she said. Also on the list is the importance of protecting streams and avoiding unintended effects to stream restoration projects, she said. “We do not anticipate proposing anything more onerous than what exists today,” Oeth told the committee. “We’re looking to protect waters the same way they’ve been protected since” the 1980s, she said. House Minority Leader Mike Lynch addressed the elephant in the room: Is the public health agency the right home for the policy? “There’s absolutely a role for a number of agencies,” said Oeth, who also added that the number of permits annually requested would be around 15, as compared to 200 issued every year under other water quality programs. However, she also pointed out that her agency has permitting programs that are similar, such as for construction stormwater. There’s expertise that the agency would bring, but that folks are willing to have the conversation about just where that dredge and fill permitting program would be housed.