A Colorado Program the Colorado Way

On May 29, 2024, Colorado Governor Jared Polis stated “Water is life in Colorado and today I was proud to protect our water resources that are essential for our agriculture, our economy, and our way of life.” That day, he signed HB24-1379 Regulate Dredge & Fill Activities in State Waters, making Colorado the first state in the nation to pass legislation that addresses the stream and wetlands protection gap created by the May 2023 Sackett vs. Environmental Protection Agency (EPA) decision. It took a lot of hard work, long days, collaboration, substantive and technical outreach, leaning into complex topics, working through misinformation, and dealing with a competing bill. We had to make some compromises, but ultimately, we came together in the “Colorado way” on a new law that works for Colorado’s unique intermountain waterways and protects wetlands and streams that were put at risk of losing protection by the Sackett decision. 

Audubon convened and facilitated conversations to support consensus around a good solution and worked to depoliticize wetland and stream protections. After all, they support all of us. Audubon celebrates our network who submitted 2,248 comments to legislators in support of creating a robust Colorado Dredge and Fill Program that covers all streams and wetlands. Audubon members also made more than 60 contributions to the "What's Your Wetland?" storymap in support of HB24-1379. Audubon celebrates our critical partnerships with the Protect Colorado Waters Coalition and the Colorado Healthy Headwaters Working Group as we worked together to preserve our critical needs through a storied and challenging process. 

The new law—led by Speaker of the House Julie McCluskie (D-Dillon), Senator Dylan Roberts (D-Frisco), Representative Karen McCormick (D-Longmont), and Colorado Department of Public Health and Environment's (CDPHE) Director of the Water Quality Control Division, Nicole Rowan—is excellent news for Colorado's birds and communities that critically depend upon clean water. It helps lead the way for other states in their pursuit of wetland and stream protections in the post-Sackett landscape. 

House Bill 24-1379 was one of two proposed bills that sought to address the regulatory gap created by the Sackett decision. Senate Bill 24-127, sponsored by Senator Barbara Kirkmeyer (R-Brighton), was the second. Due to the two competing approaches of the two bills, consensus was found after a wild ride of public engagement, testimonies, intense negotiations, and 29 amendments. Notably, Senator Kirkmeyer became a co-sponsor to the amended and final HB24-1379 within the last week of the legislative session, winning bipartisan backing. 

Why Was a “Colorado Program” Necessary to Protect Wetlands and Streams? 

Wetlands and stream systems are essential for birds and provide ecosystem services such as water purification, wildlife habitat, and flood, wildfire, and drought mitigation. Colorado has lost about 50 percent of its wetlands due to development since statehood, so protecting what remains is imperative. 

The Clean Water Act provides authorities for the EPA and the U.S. Army Corps of Engineers (USACE) to define and regulate different types of water bodies. This includes the 404 Permit Program, which determines which wetlands must be regulated and which kinds of dredge-and-fill activities must be permitted for specific waterways. The U.S. Supreme Court decision in Sackett v. EPA dramatically narrowed the scope of these regulations and undercut waters subject to federal regulation and placed an estimated 60 percent of Colorado wetlands at risk of losing protections. Moreover, all ephemeral streams and a significant portion of intermittent streams in every area of the state would have lost protection if a new state program was not adopted. The United States Geological Survey's National Hydrography Dataset* (as reported in Colorado's 2022 Sackett Amicus Brief) estimates that 24 percent of Colorado's streams are ephemeral and 45 percent are intermittent** meaning over two-thirds of Colorado's waters are temporary and lack year-round flow.  

The Sackett decision opened the doors for development to occur next to and on top of wetlands on private land, so long as there is no surface water connection between them and flowing waterways. House Bill 24-1379 was drafted to moderate the pendulum swings in federal wetland and stream protection levels in Colorado by creating a predictable State permitting and protections program that would work for Colorado’s intermountain semi-arid waterways.

What Does the New Law do for Colorado’s Wetlands, Streams, and Restoration Projects? 

The new state Dredge and Fill Permit Program created by HB24-1379 contains many details established in statute, and there are areas where more time and attention is needed to determine outcomes through a rulemaking process. Although the new law contains all of the federal 404 agricultural exemptions and some new exemptions tailored to Colorado needs on irrigation ditches, and much more, the below list pertains to Audubon and the Colorado Healthy Headwater Working Group’s direct work in protecting wetlands and streams and restoration project capabilities. 

• The new regulatory protections program, with its broad application to Colorado 'State Waters,' surpasses the scope of the federal 'Waters of the United States.' 
  • "State Waters" C.R.S. 25-8-103(19) means any and all surface and subsurface waters which are contained in or flow in or through this state, but does not include waters in sewage systems, waters in treatment works of disposal systems, waters in potable water distribution systems, and all water withdrawn for use until use and treatment have been completed."
  • HB24-1379 amended the definition of State waters to include wetlands as shown below:
    “State waters means any and all surface and subsurface waters ("which" was removed) THAT are contained in or flow in or through this state, INCLUDING WETLANDS, but does not include waters in sewage systems, waters in treatment works of disposal systems, water in potable water distribution systems, and all water withdrawn for use until use and treatment have been completed."
• The new permitting program is structured to prioritize avoidance of adverse impacts to State Waters, followed by minimization and, finally, compensatory mitigation of the unavoidable impacts.
   
• Federal 404 guidelines are the floor and not the ceiling for any state rules, allowing Colorado to customize regulations that work for intermountain semi-arid waterways.
   
• The existing Water Quality Control Commission (WQCC) will draft the new rules and review and issue individual permits so that no new regulatory commission will be formed, and reports will be generated detailing the functionality of the new permitting approach.
   
• The new law creates a new definition in the statute of "ecological lift," which “means an improvement in the biological health, as well as the chemical, geomorphic or hydrologic health of an area that has been damaged, degraded for destroyed.”
   
• This new definition is used as one of several criteria for when certain restoration projects will not be required to obtain a state dredge and fill permit: For ephemeral streams, the WQCC must promulgate rules that include: “An exemption for voluntary stream restoration efforts in ephemeral streams that do not require compensatory mitigation and are designed solely to provide ecological lift where the activity is taking place”. This was one of the provisions that Audubon pressed hard for to maintain the status quo that restoration of rangeland ephemeral drainages to stop erosional headcuts from destroying critical mesic areas could continue to take place without having to obtain a dredge and fill permit (as these areas have always fallen outside of the federal 404 permit jurisdiction). These mesic area restoration projects have been happening for about 10 years in Colorado with great success.
   
• For perennial and intermittent streams, if your restoration project requires a federal USACE 404 Nationwide Permit 27 or other general permit, provided those activities result in net increases in aquatic resource functions and services, then a project proponent will not need a separate permit from the Water Quality Control Division. 

What Are the Next Steps? 

CDPHE will initiate the rulemaking process starting September 2024 through December 2025 to fully form the regulatory program put in place by HB24-1379. All voices will play a role in both the design and implementation of HB24-1379’s regulatory program, helping to set up Colorado for long-term success. Watch for additional information and engagement from Audubon. Sign up for notifications and learn more here!

Conclusion 

Water connects us all, and rivers do not stop flowing at state lines. More must be done to restore federal protections for interstate river health while adequately supporting state wetland and stream protection programs. As a headwater state, Colorado must continue to lead the way for the rest of the West and the nation in terms of what can be accomplished with collaboration and shared vision. HB24-1379 does that and puts Colorado on a path to protect its waterways for future generations. At Audubon, we know the value and connectivity of our watersheds, wetlands, streams, and rivers; these are waterways we all depend upon—birds and people. We also know the value of bringing people together for durable solutions and we cannot do this work without you. Together, we can protect our most precious natural resource, water, and the health of our waterways and continue the Colorado way of coming together to address our most pressing issues.

 

*United States Geological Survey’s National Hydrography Dataset. Although this data provides the best available estimate of ephemeral and intermittent stream mileage statewide, it likely underestimates the true extent of these waters. 

**Intermittent is the more technical word for seasonally flowing stream, and ephemeral streams are the streams that only flow in response to storm events.