In 2023, the U.S. Supreme Court authored the largest rollback of protection under the Clean Water Act in that law’s history through their decision on the Sackett case. While Colorado had strong state-level protections for point-source discharges such as from an industrial or water treatment facility, the decision potentially left many Colorado wetlands and seasonal streams at risk of being dug out or filled in – Colorado had no program equivalent to Section 404 of the Clean Water Act that handled permitting for dredge and fill activities in waters of the United States.
Now, thanks to a dedicated coalition of conservation interests and some true legislative champions, Colorado has become the first state to pass new state-level laws to restore protections lost under the Supreme Court’s decision. This is great news not only for the seasonal streams (as shown on the map below) and wetlands that will be protected, but for downstream water quality, which is fundamentally shaped by the health of those sources higher in the watershed.
Recognizing that getting major water legislation passed through the General Assembly was more than any group could tackle alone, CTU joined with many other conservation-minded partners including Conservation Colorado, Earthjustice, Green Latinos, and the National Wildlife Federation, to create the “Protect Colorado Waters” coalition. We came into the legislative session benefiting from grant support from the nationwide Protect Our Waters campaign, and brought on strong professional expertise from Mark Eddy (TU volunteer, communications consultant and former Denver Post reporter) and National TU’s Mely Whiting (who delayed her retirement to help with policy and legal support). Hundreds of TU members also lent their voices to the effort, reaching out to urge their Senators and Representatives to support wetland and water protection.
Perhaps most importantly, we were blessed to find strong champions for water quality protection with the Polis Administration and its Department of Public Health and Environment, and with three key legislators who sponsored HB 24-1379: Speaker of the House Julie McCluskie, House Ag Committee Chair Rep. Karen McCormick, and Senate Ag Committee Chair Sen. Dylan Roberts. These leaders for water quality worked tirelessly to advance legislation that would ensure protection of Colorado waters.
Legislative sponsors held extensive discussions with stakeholders from all sides of the issues in the bill and worked through multiple iterations of amendments along the way. Our coalition reached out with various other interests that were open to discussion about mutually agreeable solutions. Ultimately, a number of important compromises were reached that helped pave the way for the bill’s ultimate passage.
The program will be housed with the Water Quality Control Division/Commission but with measures in place to ensure the agency secures additional staff and funding if needed to ensure the timely processing of permits. Opponents had proposed creating a costlier (and slanted toward polluters) commission and division to be housed in the Department of Natural Resources.
The standard of protection would be as strong as previously existing federal criteria and could be made stronger if the Commission determined through public rulemaking that more protective criteria were needed to maintain the physical, chemical, and biological integrity of Colorado waters. Opponents had sought to make federal standards a hard ceiling rather than a floor for state protection.
The program will protect waters of Colorado broadly, not excluding (as opponents had sought) those wetlands beyond 1500 feet from rivers. This was a key issue given the important role such wetlands play as natural filters maintaining downstream water quality. Under the compromise developed by our colleagues at the Colorado River District, those more distant wetlands will be handled under a statewide ‘general permit’ with appropriate best management practices to protect waters of the state. This provides needed protection for those waters while also offering regulated users a streamlined and reliable permit system they can rely on in planning activities around such wetlands.
The end result is a model for other states to step up in the aftermath of the Supreme Court’s decision and is arguably the most significant water quality legislation that Colorado has seen since the original 1973 passage of the Colorado Water Quality Control Act. Colorado TU thanks Speaker McCluskie, Rep. McCormick, and Sen. Roberts for their exemplary work in protecting headwaters, wetlands, and water quality for Colorado.
