Posted on March 27, 2024
Nearly a year after the U.S. Supreme Court issued a ruling withdrawing protections for about half the streams and wetlands in Colorado, Western Slope Democrats have introduced a bill that would fill the regulatory vacuum created by the decision.
House Bill 1379 would create a state-run permit system to regulate when developers can dig up and fill in streams and wetlands under a process called “dredging and filling.”
The bill, sponsored by House Speaker Julie McCluskie, a Dillion Democrat, and introduced Wednesday, would include a broad number of state waterways under the permit system and would charge the Colorado Department of Public Health and Environment with developing it.
“When we talk about the impacts of water in the West, Colorado leaning in and taking a leadership role in our waterways could not be more important,” McCluskie said. “The scarcity of our water resources is becoming more and more apparent.”
The bill is also sponsored by Sen. Dylan Roberts, D-Frisco and Rep. Karen McCormick, D-Longmont.
Historically, the state has relied on the federal government to issue permits for dredging and filling through the federal Clean Water Act, but under the Supreme Court decision Sackett vs. EPA, many of Colorado’s waterways are no longer under the federal government’s purview. The court’s May 2023 decision narrowed the federal protection by ruling that only some wetlands, like those with a direct surface connection to a larger, already-protected body of water, should be included.
The Supreme Court decision came after decades of legal fights over which waters should be protected under the Clean Water Act. After the decision, Colorado began scrambling for a way to address the permitting and created an interim program under CDPHE. CDPHE also manages water quality in state waters.
Rival bill
House Bill 1379 is only one of the approaches being considered by the Colorado legislature this session. Senate Bill 127, introduced in February by Sen. Barbara Kirkmeyer, R-Brighton, proposes that the permitting system should instead be managed by the Colorado Department of Natural Resources.
“They do the floodplain planning, the water planning, they’re responsible for the streams and rivers, that’s not the health department,” she said.
Kirkmeyer argues that the permitting shouldn’t be under CDPHE because the department already has a huge backlog for its other permit programs.
The two bills have several other key differences, including how they define which waters should be protected and how stringent the permitting process is for different industries, such as mining. Agricultural activities would be largely exempt under both bills.
Senate Bill 172 has a more narrow approach to which state waters should be protected, largely consistent with the Sackett decision. House Bill 1379 would go somewhat beyond the scope of what was protected before that ruling.
“I think we’re trying to find the right balance between being too broad and not broad enough,” Roberts said. “In our bill, we would be protecting more water not going as far as some proposals would.”
While Kirkmeyer’s bill is also sponsored by Rep. Shannon Bird, a Westminster Democrat and member of the legislature’s powerful Joint Budget Committee, it may face an uphill battle in competing with a bill sponsored by Speaker McCluskie. Gov. Jared Polis, whose administration helped develop House Bill 1379, also provided a statement of support in a press release about the legislation.
“Today, we further our commitment to protect Colorado’s water for the next generation of Coloradans,” Polis said.
McCluskie argues that the CDPHE already issues permits for the state’s water and air and setting up a new administrative system in the Department of Natural Resources would be more costly.
While the fiscal impact of House Bill 1379 hasn’t been estimated yet, McCluskie is anticipating a $600,000 cost for five new full-time employees to implement the new permitting. Senate Bill 172 has a $3.8 million price tag, according to a fiscal note prepared by nonpartisan staffers.
Kirkmeyer said she’s skeptical of the fiscal impact estimation for House Bill 1379.
Only one of the bills could become law, but another possibility is the bills’ sponsors could find enough common ground to combine the two measures.
“The worst thing that could happen is nothing passes and we end up with no regulation,” Kirkmeyer said.
House Bill 1379 was assigned to the House Agriculture, Water and Natural Resources Committee. Senate Bill 172 is set to be heard by the Senate Agriculture and Natural Resources Committee April 4.
