Colorado Officials Scramble To Patch Wetlands Regulations Following SCOTUS Ruling

A ruling from the Supreme Court has created a gap in Colorado wetland regulations that officials are now scrambling to patch up. 

The gap was created when the Supreme Court ruled in Sackett vs. Environmental Protection Agency in May. The justices ruled the “significant nexus test,” which determines what water sources can be protected from development, is too broad. Colorado previously relied on the Army Corps of Engineers and the EPA to determine which water sources to protect. But state officials are now working on a new permitting process to address the so-called water gap that the ruling created. 

Cheryl Cwelich, a water resource specialist for the Upper Gunnison River Water Conservancy District, told The Gunnison Country Times that the ruling could complicate Colorado’s approach to preventing wildfires. An analysis from real estate data firm CoreLogic found there are about 70,000 buildings in the Denver area that are at risk of being lost to wildfires. 

Many communities in the Gunnison Valley rely on groundwater, which is no longer protected from development following the Sackett decision, Cwelich said. Meanwhile, the streams that feed into the region are only active early in the year because of snowmelt, she added. 

“The land is getting drier and drier,” Cwelich said. “As we lose these wetlands we’re losing the ability for our landscape to be resilient to climate change and drought. Those wetlands help provide water to animals, livestock, to even our community.” 

Before the Sackett ruling, the Army Corps of Engineers and the EPA would issue permits for dredge-and-fill operations, which required developers to protect wetlands present on a given property. Wetlands were previously protected by the Waters of the United States rule under the Clean Water Act. The Supreme Court’s ruling rolled back those protections and determined that waterways with a direct surface connection to another waterway deserve protection. This essentially opened up millions of acres of land for private development. 

Earlier this summer, the Colorado Department of Public Health and Environment launched its own dredge-and-fill program to begin addressing the regulatory gap. The agency is expected to have a full policy in place by early 2024. 

But Crested Butte High Country Conservation Advocates Water Program Director Julie Nania said she is concerned about the damage to wetland health that the gap has already created. 

“We’re a headwaters state, and we care a lot about water quality,” Nania told The Gunnison Country Times. “Our rule makers and legislators recognize that this is not a great opinion based on science if you really care about wetland health and protecting our drinking water sources. I’m cautiously optimistic that Colorado would like to see a higher level of care given for these waterways.”