Competing state waters protection bills move through Colorado Legislature

Colorado lawmakers want to implement new protections for waters left vulnerable by a U.S. Supreme Court decision that narrowed the reach of the Clean Water Act — but they disagree on the best way to do it.

Following the 2023 Sackett v. Environmental Protection Agency case, many small streams and wetlands are no longer covered by the Clean Water Act, meaning states need to introduce new regulations if they want to protect those waters. 

Two different bills that are making their way through the Legislature try to accomplish that goal. One has the support of more Democrats and those in the environmental protection realm, while the other has the support of Republicans and the agriculture community. 

The bills diverge on key points, such as the level of new enforcement the state should enact and which waters are protected. Both intend to create permitting programs for dredge and fill activities, which are necessary for those looking to develop infrastructure on wetlands. Up to 50% of Colorado’s state waters were at risk after the Sackett ruling, which limited the federal permitting process. 

House Bill 24-1379 would create a permitting program under the Colorado Department of Public Health and Environment for dredge and fill activities that impact state waters. The bill passed its first committee hearing April 8 after hours of testimony, with many stakeholders concerned about the potential for regulations that exceed the pre-Sackett level. The bill passed the House Finance Committee on Monday. 

“Healthy wetlands and streams are essential for providing clean drinking water, wildlife habitat, and the overall health of our communities,” said House Speaker Julie McCluskie, a Dillon Democrat who sponsored the bill. 

McCluskie said CDPHE’s Water Quality Control Division already oversees 11,000 permits in Colorado, meaning they have the administrative and billing infrastructure to support a new permitting program. Based on data from the Army Corps of Engineers, Colorado would issue 100-125 permits each year under the new program, she said. 

Co-sponsor Rep. Karen McCormick, a Longmont Democrat who chairs the House Agriculture, Water and Natural Resources Committee, said certainty regarding when a permit is required has been the most important part of the bill for stakeholders in construction, agriculture and conservation. 

“House Bill 1379 delivers on that with clear and well defined exemptions for certain activities and exclusions for certain water features,” McCormick said. “Our approach establishes a very predictable statutory framework, while allowing certain details to be determined through additional stakeholding and rulemaking when that flexibility is necessary.”

She said the framework for the permitting program borrows from the Army Corps of Engineers, which she said the regulatory and regulated communities are both already familiar with.

The House bill sponsors said the question of whether the program would be housed under CDPHE or the Department of Natural Resources is one of the most common questions they’ve heard regarding the bill. McCormick said while neither department would be a perfect fit, sponsors ultimately went with CDPHE because of its experience with permitting processes. 

Josh Kuhn, a water campaign manager with Conservation Colorado, said those in favor of housing the program under the Department of Natural Resources argue the program is more about the land affected than it is about water quality. His organization is in favor of keeping it in CDPHE, because the Water Quality Control Division regulates the discharge of pollutants into state waters. 

Trisha Oeth, director of environmental health and protection at CDPHE, said during the measure’s first hearing that the House bill provides a “durable solution” to long-term protection for Colorado’s seasonal streams and wetlands. Kelly Romero-Heaney, deputy policy director for the Department of Natural Resources, said her department is confident in CDPHE’s ability to implement the permitting program, which she said is an effective solution to protecting Colorado’s water resources.

“Decades of attempting to restore degraded systems have taught us that it’s far more cost effective and technically and legally feasible to protect Colorado streams and wetlands than to try to repair them after they’re damaged,” Romero-Heaney said.

Definition of ‘waters’

Republican Sen. Barbara Kirkmeyer of Weld County introduced another bill attempting to regulate dredge and fill activities, Senate Bill 24-127, with state Rep. Shannon Bird, a Westminster Democrat, sponsoring it on the House side. The Senate bill originally housed the permitting program under the Department of Natural Resources, but the Senate Agriculture and Natural Resources Committee adopted an amendment that would move the program to CDPHE.

The Senate bill says new regulations can be no more restrictive than the Clean Water Act provisions previously in place, while the House bill says regulations will be at least as restrictive as they used to be.

“This bill doesn’t say don’t do permitting, it says permitting is necessary,” Kirkmeyer said, “but it’s necessary that we carry it on in a way that the people who are being regulated know how to get it done, understand what’s in the rules and that we don’t stop providing for water resources in the state of Colorado.”

Kuhn told the House Finance Committee that the main difference between the bills is that the House bill uses the long-standing state definition of “waters,” which he said is “all waters flowing through and contained within the state,” while the Senate bill limits the permitting program to waters within 1,500 feet of a stream or within the 100-year flood plain. 

“The problem with the Sackett case is that previously, waters outside of that 1,500-foot threshold could incur environmental review,” Kuhn said. “Senate Bill 127 draws a very distinct line and says anything beyond 1,500 feet — unless it’s a fen, which is already recognized as the most important type of wetland — you can go take a bulldozer in there, destroy a stream, destroy a wetland without any environmental review.” 

Kuhn said if a few more permits need to go through environmental review, that’s a necessary step for Colorado to take if it means ensuring “ample, clean, affordable water for all Coloradans today and in the future.” The House bill includes environmental review for all permit applicants, while the Senate bill does not. 

“Our aim is not to stop development. Our aim is to ensure that there’s an environmental review over the development to help protect our water resources, and that responsible development shouldn’t be scared of responsible regulations,” Kuhn said. “That’s how we help protect our natural resources, our water supply, and allow for growth to occur.”

Many of those who spoke against the House bill April 8 testified in support of the Senate bill at its Thursday committee hearing. The Colorado Water Congress, a nonprofit association of water professionals, has supported the Senate bill and opposed the House bill. But that position isn’t unanimous among Congress members — Kuhn’s organization is a member.

Sen. Janice Marchman, a Loveland Democrat, said it’s “problematic” to see two bills competing over the same purpose. She said she voted in favor of the Senate bill because she appreciates the more extended legislative process it went through and hopes to continue conversations on a compromise between the two bills. The Senate bill was first introduced at the start of February, while the House bill was introduced toward the end of March.

“We have two competing bills at play and we continue to hear that two bills in the system at the same time is a problem, so I agree — but I don’t believe that either of the bills is exactly there,” Marchman said. “We’re gonna have to get on the same page, my hope is we can do that as we go forward.” 

Both bills win initial approval

Sen. Dylan Roberts, a Frisco Democrat who chairs the Senate committee, is the primary Senate sponsor on the House bill. He said during closing comments on the Senate bill that he heard “a lot of misstatements” about the House bill during testimony, because it does include exemptions for agriculture, among others. He also said the House sponsors committed to continuing conversations to further develop the bill. 

“I think the Sackett decision, while (it) left every state with an uncertain future, gives Colorado an opportunity to have the very best standard we possibly can have,” Roberts said. 

Roberts also said he was concerned that much of the testimony in favor of the Senate bill was due to the program being envisioned as a part of the Department of Natural Resources. Now that the committee approved an amendment to move the program to CDPHE, he isn’t sure if it will still have that support. 

The House committee approved the more restrictive bill with a 9-4 vote along party lines, and the Senate committee approved the less restrictive bill Thursday in a 4-3 vote. 

Those who testified against the House bill expressed concern for its impact on agriculture. Wes Knoll is a water rights attorney in Johnstown who spoke against the bill on behalf of his clients, the Central Colorado Water Conservancy District and the Larimer and Weld Irrigation Company. 

“These entities oppose this bill because it will create new regulation on agricultural activities that have never been subject to dredge and fill regulation previously,” Knoll said. “This regulation is unnecessary and adds regulatory uncertainty to the water conservation projects and projects that seek to improve the efficiency and quality of our state’s most important resources.” 

Travis Smith, who chairs the Colorado Water Congress, is an agricultural water rights owner in the San Luis Valley, with wetlands and a perennial stream on his property. He said he would be in favor of creating a whole new permitting program under the Department of Natural Resources. 

Another concern with housing the program within CDPHE is the already existing backlog in fulfilling other permit requirements. McCluskie said CDPHE has been “underfunded for decades,” and if given the proper resources, she thinks they can meet the demand. Current estimates on the House bill say the department will need five full time employees to make the program work, with a total cost of implementation just under $600,000. The Senate bill’s estimated costs are closer to $3.8 million, but that could change since it’s now also moved to CDPHE.

McCluskie said her bill went through an extensive stakeholder engagement process, as they held a variety of meetings seeking input on how the policy could best work for Colorado — and they are still considering additional requests around exclusions and exemptions. According to a press release from House Democrats, typical farming, ranching, and agricultural activities would not require a permit under the proposed program. 

“We’ve been very committed to our agricultural industry and partners. We want to make sure that we exempt the right activities for agriculture, and you’ll see that big exemption in our bill,” McCluskie said. “We continue to work with municipal water providers and other industry groups to make sure that we’re crystal clear both on how we’re defining the permitting process in the bill and what might ultimately also be excluded or exempt.”

Kirkmeyer said her bill has gone through a stakeholder engagement process over the last seven months and takes the approach favored by those on a governor’s task force looking into the best policy solution. The Senate bill includes the same exemptions and exclusions as the 404 permits issued under the Clean Water Act. 

“We all understand the importance of our water resources and the importance of this permitting program to ensure that we have clean water in the state of Colorado. It’s extremely important to all of us,” Kirkmeyer said. “We don’t feel like we need to remake a program that worked for 50 years.”

Republicans on the House committee shared the concerns many from the agriculture community had, particularly given the lack of support for the House bill from the Colorado Water Congress. Rep. Mike Lynch, a Wellington Republican, said the program feels rushed without the Congress’s support. 

“I think the big concern is how this meshes with the competing priorities that we have in the state, which include growth, which include affordable housing, the ability to react quickly to emergencies, the ability for people to change the way they do business in a lot of regards,” Lynch said. 

McCluskie said it’s still early in the process for both bills, since they’re still in their original chambers, and that it’s “healthy” for the Legislature to consider different perspectives and ideas through two different bills. If both make it through the full Legislature, the Office of Legislative Legal Services will reconcile any overlap. 

“I really want to emphasize our willingness to continue this process,” McCluskie said. “It is so important, because it is such a critical issue for our state, that we take all perspectives into account, that we are trying our best to meet people where they’re at, and we’re gonna keep doing that.”

Editor’s note: This story was updated at 9:53 a.m., April 18, 2024, to accurately reflect Sen. Dylan Roberts’ current hometown.