Originally published in The Getches- Wilkinson Center blog on July 14, 2024
This May, Governor Polis signed into law bipartisan legislation protecting Colorado鈥檚 wetlands and streams in the wake of the Supreme Court鈥檚 Sackett decision. Handed down in 2023,聽Sackettredefined 鈥渨aters of the United States鈥� and rolled back federal protections for isolated wetlands and ephemeral and intermittent streams, which are especially important in western headwater states like Colorado. By passing HB-1379, Colorado has become the first state in the country to respond to the 鈥済ap鈥� of unprotected waters created by the听厂补肠办别迟迟听decision.
After the Supreme Court reversed decades of precedent in聽Sackett, uncertainty spread across the state. CDPHE released a聽聽that laid out an interim strategy to fill the gap and protect Colorado鈥檚 natural resources. Many experts and stakeholders in Colorado were deeply concerned about the potential impacts across the state to water supplies, wildlife habitat, and outdoor recreation and believed that the interim strategy was insufficient over the long-term. The regulated community also began to worry about uncertainty created by this interim regime, and all eyes turned to the capitol for a permanent solution as the 74th General Assembly got under way.
CDPHE and members of the General Assembly began working together and started hosting stakeholder meetings to discuss ideas on how Colorado could address the 鈥済ap鈥� of waters left unregulated after the聽厂补肠办别迟迟听decision. At this point, the Getches-Wilkinson Center became more formally involved in examining how Colorado might set up a new state-led regulatory program to fill that gap. Our Executive Director, Chris Winter, and Water Law Fellow, Andrew Teegarden, began working on a framework for a Colorado program which would adopt many components of the federal regulatory regime that were functioning effectively while avoiding some of the problems of time and cost embedded in the Army Corps permitting process.
The Center鈥檚 work in this area was multi-faceted; at first, we provided legal analysis and wrote聽blog posts聽covering the current state of play and existing gap. Providing legal research evolved into collaborating with the Clean Water for All Coalition, where we educated members about the legal components of proposed legislation and frequently had meetings at the capitol testifying about the importance of a well-crafted regulatory program in the state. Two competing bills emerged, and the Center鈥檚 work was critical in identifying strengths and weaknesses in the competing proposals.聽聽wrote an op-ed for the Boulder Daily Camera on the bill that passed, and we also ran a well-received聽anlaysis of the flaws in the competing proposal.
Ultimately, the legislature passed HB-1379, which we believed to be the better policy proposal, and it was signed into law by Governor Polis. The new bill will ensure meaningful protection for virtually all of Colorado鈥檚 natural wetlands and streams, thereby avoiding the pitfalls and inefficiencies that accompany the 鈥渏urisdictional determination鈥� process under the federal program. The new bill incorporates the provisions of the federal Clean Water Act as the floor for protection while preserving the authority of the state regulators to go further if necessary. And the bill provides certainty for the regulated community and builds in efficiencies like general permits and exceptions for artificially wet areas.
We are grateful for the work of the General Assembly in getting HB-1379 over the finish line, especially Speaker McCluskie, one of the bill鈥檚 main sponsors, and CDPHE for the dedication and hard work of its staff. We鈥檙e also grateful to Governor Polis, who gave the GWC a聽during his speech at our Summer Conference in June for our work on HB-1379! Stay tuned for updates as CDPHE begins to start the rulemaking process which will further define the contours of wetland regulation within Colorado for years to come.