This story was originally published in Fresh Water News.
By Jerd Smith, Fresh Water News
Draft rules designed to implement a landmark bipartisan law to protect thousands of miles of streams and vast wetlands have triggered an angry dispute among environmental groups, state health officials and lawmakers just days before a Dec. 8 state hearing to finalize them.
The draft rules cover dozens of issues related to how the state will regulate construction, homebuilding and farming activities that disturb waters and wetlands.
The idea is to protect these natural resources while giving businesses the flexibility they need to operate.
But it is one definition of a farm-based wetland that has everyone up in arms, with industry groups and a prominent Republican lawmaker claiming that new wording doesn’t honor the intent of the 2024 law.
The language in the law is simple: No permits are required for wetlands that are adjacent to a ditch or canal and supported by water in the adjacent ditch or canal.
But state health officials, with the backing of environmentalists, have proposed a tighter definition of “adjacent” in the draft rules, adding wording that says the wetland must be next to, or adjoining, the ditch, and the wetland must be supported by “sufficient” water from the ditch to maintain the wetland.
These changes likely would make more wetlands subject to state oversight and permitting, said Sen. Barbara Kirkmeyer, a Republican from Brighton and a key sponsor of House Bill 1379. And it could mean farmers may have to spend more to manage their water and maintain their ditches. Other business interests could face similar challenges.
“I am disappointed,” Kirkmeyer said this week. And in a sharply worded Nov. 18 letter to the state health officials, Kirkmeyer said she was “deeply concerned by the division’s current proposal as it is not consistent with the legislative intent of House Bill 24-1379 and appears to be an attack on rural Colorado.”
The Colorado Department of Public Health and Environment’s Water Quality Control Division is responsible for writing the new rules, which must be approved by the Colorado Water Quality Control Commission and completed by Dec. 31.
Stuart Gillespie, an attorney with Earthjustice who helped negotiate the law and is representing community groups participating in the rulemaking process, said new wording included in the draft is critical to ensure that exclusions for these wetlands aren’t expanded.
“These exclusions mean people don’t even have to come to the division for a permit, so we need to have clarity,” Gillespie said.
The Colorado Water Quality Control Division declined an interview request, but in an email spokesman Brent Temmer said the new definitions in the draft rules were important to eliminate ambiguity.
“We want the regulated community to have clarity around the requirements, and our expectations. Not defining these terms in regulation may create uncertainty about regulated versus excluded wetlands. Present ambiguous language also could lead to misuse of the exclusion,” Temmer said.
The working group is also still arguing fiercely about how state health officials should evaluate the public interest when issuing permits, with environmental groups seeking a more detailed review, and industry groups saying it will be too burdensome.
“One issue has to do with the addition of the concept allowing an authorization to be turned down based on whether it is in the public interest,” said Jim Sanderson, who represents the Colorado Utilities Council, the City of Greeley, and mining interests.
“That sounds good, but how is it defined, and what does it mean? If you start trying to make water quality decisions on whether it’s in the public interest you’re opening a Pandora’s box and introducing unlimited debate,” he said.
But Gillespie said state health officials should do more detailed reviews of permits using well-defined public interest standards, though he acknowledged the difficulty of the debate.
“Everyone is fired up,” he said, and it will be up to the commission “to make a decision.”
First of its kind
Colorado is the first state in the nation to address a major gap created in 2023 when the U.S. Supreme Court, in its Sackett v. EPA decision, wiped out a critical set of environmental safeguards contained in the Clean Water Act.
The Sackett decision said, in part, that only streams that flow year-round are subject to oversight. It also said only wetlands that had a surface connection to continually flowing water bodies qualified for protection.
Western states were hard-hit by the decision because few of their rivers and streams flow year-round and wetlands, too, often only appear after rain and snowstorms, leaving them unprotected under the revised Clean Water Act rules.
After Sackett, Colorado moved quickly to begin studying how to create its own rules to replace what had been removed from the federal Clean Water Act.
In House Bill 1379, which was approved in May 2024, lawmakers said all waters in the state, as well as its wetlands should be protected. But they also included a list of waters that would be excluded from the new law to protect farmers and water providers and some industries.
The law also contained exemptions for activities, such as maintenance work on irrigation ditches and canals. And it specifies that work that disturbs less than one-tenth of an acre of wetland or a 3/100th of an acre of a streambed also be exempted from oversight.
Dozens of water interests, industry players and environmental groups have been working for nearly a year-and-a-half to produce a draft set of rules that will be debated and potentially voted on by the Water Quality Control Commission in Denver on Dec. 8-10. The hearings are open to the public.
Sanderson said the work has been difficult because it is uncharted territory for state regulators.
“We are setting up a brand new program that is a first of its kind,” he said. “We are all learning as we go.”
Editor’s note: This story is a product of Fresh Water News, a nonprofit news organization.
