After the Supreme Court gutted federal protections for half of Colorado’s waters, can state leaders fill the gap?

When the Cameron Peak wildfire ripped across northern Colorado in 2020, it left hundreds of thousands of acres charred and dusty — except for a series of beaver ponds tucked inside Poudre Canyon.

The wetlands survived the state’s largest recorded wildfire and acted as a buffer as the flames raged through the canyon. And after the flames were extinguished, they served as a sponge to absorb floodwaters sped by the lack of vegetation, minimizing flood damage downstream.

But a U.S. Supreme Court decision last year left wetlands like the ones in Poudre Canyon — as well as thousands of miles of seasonal streams critical to the state’s water system — without protection under federal law. The court’s majority limited the coverage of the Clean Water Act, leaving protection gaps for more than half of Colorado’s waters that lawmakers, conservationists, developers and state water quality officials are rushing to fill.

“Clean water is one of those things we take for granted, and you don’t really notice until you don’t have it,” said Stu Gillespie, a senior attorney at Earthjustice, an environmental conservation law firm. “The same is true with the Clean Water Act.”

Colorado, like many states, relied on the federal government’s permitting process to regulate when people could dig up waterways or wetlands and fill them in — activities known as dredging and filling. Although Colorado has its own Water Quality Control Act that makes it illegal to pollute waters, there is now no process to vet proposed dredge and fill projects, or to issue permits allowing those projects to legally proceed.

“This Supreme Court decision will result in less water quality protections for Colorado,” wrote officials with the Colorado Department of Public Health and Environment in an emergency policy drafted in response to the court’s decision.

Colorado House Speaker Julie McCluskie is crafting a bill this legislative session to give the CDPHE the authority to fill that gap. But key questions remain about how far lawmakers and state officials are willing to go in replacing federal protections.

“We need something in place to give certainty and clarity to anyone doing dredging and filling activities,” McCluskie said.

Case started over a half-acre in Idaho

The Supreme Court decision in May stemmed from a 15-year legal battle centered on a half-acre of land next to an Idaho lake.

In 2004, Michael and Chantell Sackett purchased the lot a few hundred feet from Priest Lake to build a house. A few years later, they started construction by filling the lot with gravel, which a neighbor flagged to the U.S. Environmental Protection Agency.

The agency’s regulators in 2007 found that the lot included a wetland protected under the Clean Water Act, the federal government’s overarching law protecting water from pollution. The Sacketts needed a permit to disrupt the wetland and would face heavy fines if they did not obtain the permit, the EPA found.

The Sacketts sued instead of pursuing the costly permit, touching off years of litigation over the Clean Water Act and which waters it protects.

In May, the high court’s justices ruled 5-4 that wetlands not connected on the surface to another body of federally protected water do not qualify for protection themselves under the Clean Water Act. The law also doesn’t protect wetlands connected to rivers or lakes via groundwater below the surface, the court found, and it doesn’t protect streams that flow seasonally or only after precipitation falls.

The ruling left the protection of the newly exempt waters to the states, many of which do not have robust water protection laws.

A group of volunteers, as well as project manager Kira Puntenney-Desmond and hydrology research assistant Shelby Weder, are reflected in a flowing stream as they stop to make an observation during a guided Stream Tracker hike on the South Valley Loop trail at Lory State Park in Fort Collins Wednesday, Aug. 16, 2023. The project focuses on gathering data on intermittent streams from community members using an app to submit their observations. (Photo by Alex McIntyre/Special to The Denver Post)

Leaders in some conservative states cheered the decision as a rollback of unnecessary federal control. Some states could opt to forgo the creation of a replacement permitting system.

“In states like Arizona, there is essentially a license to pollute waterways without a permit and without disclosure,” Gillespie said.

An analysis by Earthjustice found that just nine states have laws that provide strong protections for the waters no longer protected under the Clean Water Act.

Colorado is not one of them, but it’s poised to be a leader in its response, said Josh Kuhn, the water campaign manager for Conservation Colorado.

“We’re in the midst of the worst drought in 2000 years, so the last thing we need is to hurt our water quality,” he said.

Seeking a Colorado solution

Wetlands and streams that flow periodically are crucial parts of Colorado’s landscape, Kuhn said. Wetlands are critical habitat for wildlife and act as natural filters for water that eventually becomes drinking water.

Intermittent and ephemeral streams funnel snowmelt and rain to large streams and eventually to the rivers that serve Colorado’s 5.8 million residents, as well as the agriculture and recreation industries.

“The history of Colorado is written in water — it’s the lifeblood of the state,” Gillespie said.

The Department of Public Health and Environment in July enacted an emergency rule to provide some oversight over dredge and fill activities in waters that lost federal protection.

Dredging and filling happen when someone wants to dig up a wetland or stream bed for development or fills it in. A housing developer might seek to build on a wetland, or a construction company might propose to build a bridge over a stream that requires some excavation of the stream bed.

The state policy states that the department will not punish people who dredge or fill in waters if the person notifies the CDPHE, the impacted area is small and the activities comply broadly with the federal law that existed before the Supreme Court decision.

The goal, said Nicole Rowan, director of CDPHE’s Water Quality Control Division, is to give developers and others a way to proceed with projects without fearing legal trouble because of ambiguity in the law.

“I think there’s a lot of awareness about (the policy) — people want to be in compliance,” Rowan said. “They want to do the right thing.”

The policy is meant to provide guidance while officials create a more robust permitting program, but it lacks a robust analysis of how dredging and filling will affect the environment and relies on voluntary disclosure, Gillespie said.

“It’s a stop-gap measure,” he said. “It’s not something that should stay in place in the long term.”

More than 400 people gathered Tuesday inside the Colorado Capitol to discuss what those future regulations should look like, McCluskie said.

The question facing lawmakers is whether to create a dredge- and fill-permitting process solely for the waters left unprotected by the Sackett decision, or to devise a broader permitting process that would apply to dredging and filling in all of Colorado’s waters.

Gov. Jared Polis earmarked $600,000 in his budget to pay for the creation and operation of a permitting process.

“We want to be very inclusive in this process,” said McCluskie, a Dillon Democrat. “There’s a lot more discussion ahead.”

The Colorado River snakes across the Kawuneeche Valley scarred by East Troublesome fire near the headwaters of the Colorado River on May 13, 2023, in Rocky Mountain National Park. The flight for aerial photography was provided by LightHawk. (Photo by RJ Sangosti/The Denver Post)

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Some Coloradans are pushing the state to go even further. Colorado should create its own comprehensive system for every type of permit for all of the state’s waters, Gillespie said. Having such a program in place, he said, would protect Colorado’s waters from any changes as more lawsuits challenging the federal Clean Water Act wind their way through the courts.

He sees potential for the protection gaps left by the Sackett decision to expand.

“The state should go into the full extent of its authority and have a comprehensive program for all waters,” Gillespie said.

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