From email from the Western Colorado Area Office:
April 26, 2024
Please see the links below for the Meeting Summary and Slides from the April Operations Meeting of the Navajo Unit.
Meeting Summary: https://www.usbr.gov/uc/wcao/water/rsvrs/mtgs/pdfs/archives/nm2024_04.pdf
Meeting Slides: https://www.usbr.gov/uc/wcao/water/rsvrs/mtgs/pdfs/archives/nmho2024_01.pdf
Click the link to read the article on the Arizona Department of Water Resources website:
April 26, 2024
Arizona’s Governor and ADWR Director joined with the Colorado River Indian Tribes and top federal officials on Friday in signing documents implementing an agreement allowing the tribes to market portions of their Colorado River allocation to water users off-reservation.
The signing event represents a critical step to implement the Colorado River Indian Tribes Water Resiliency Act of 2022.
Present at the event to execute the agreements at the Bluewater Resort on the CRIT reservation near Parker were Arizona Governor Katie Hobbs, U.S. Senator Mark Kelly of Arizona, as well as Secretary of the Interior Deb Haaland, Bureau of Reclamation Commissioner Camille Calimlim Touton and Tom Buschatzke, Director of the Arizona Department of Water Resources.
Both Governor Hobbs and Director Buschatzke participated in the signing ceremony.
In her remarks at the event, Governor Hobbs gave a gracious nod to Director Buschatzke “and your entire team” for the Department’s years of effort to help make the marketing agreements a reality.
“Director Buschatzke, I feel like this is the 100th time I’ve said this since I took office, but we are lucky to have you leading the Arizona Department of Water Resources and I want to thank you and your entire team who have spent years working on this,” the Governor said.
According to a statement released by the tribes, the agreements signed on Friday “will move CRIT one step closer to strengthening its sovereignty over its water resources to improve the lives of future generations of CRIT members while protecting the life of the river.”
Governor Hobbs observed that the agreements bring an end to “an outdated framework” that restricted the tribes from making choices about allocating their own water resources.
“The celebration today is the beginning of a new chapter for tribal sovereignty and self-determination, where tribal leaders have the freedom to manage their resources, and by extension, their futures,” said Governor Hobbs.
She also noted the important role the tribes played “as a partner in protecting the Colorado River” when they participated in the 2019 Drought Contingency Plan to help stabilize Lake Mead.
The CRIT reservation stretches along the Colorado River on both the Arizona and California side. It includes approximately 300,000 acres, with the river serving as the focal point and lifeblood of the area.
by Robert Zullo, Utah News Dispatch
April 25, 2024
The U.S. Environmental Protection Agency on Thursday released a sweeping set of rules aimed at cutting air, water and land pollution from fossil fuel-fired power plants.
Environmental and clean energy groups celebrated the announcement as long overdue, particularly for coal-burning power plants, which have saddled hundreds of communities across the country with dirty air and hundreds of millions of tons of toxic coal ash waste. The ash has leached a host of toxins – including arsenic, mercury, lead, cadmium, radium and other pollutants – into ground and surface water.
“Today is the culmination of years of advocacy for common-sense safeguards that will have a direct impact on communities long forced to suffer in the shadow of the dirtiest power plants in the country,” said Ben Jealous, executive director of the Sierra Club, one of the nation’s oldest and largest environmental organizations. “It is also a major step forward in our movement’s fight to decarbonize the electric sector and help avoid the worst impacts of climate change.”
But some electric industry and pro-coal organizations blasted the rules as a threat to jobs and electric reliability at a time when power demands are surging. They also criticized the rule’s reliance on largely unproven carbon capture technologies.
America’s Power, a trade organization for the nation’s fleet of about 400 coal power plants across 42 states, called the number of new rules “unprecedented,” singling out the new emissions standards that will force existing coal plants to cut their carbon emissions by 90% by the 2032 if they intend to keep running past 2039. Michelle Bloodworth, the group’s president and CEO, called the rule “an extreme and unlawful overreach that endangers America’s supply of dependable and affordable electricity.”
The Pennsylvania Coal Alliance, a nonprofit organization representing Pennsylvania coal mining companies, called the new rule “a haphazard and dangerous threat to our grid’s electricity supply, national security and our economy,” in a news release.
Many experts expect the regulations to be litigated, particularly the carbon rule, since the last time the EPA tried to restrict carbon emissions from power plants, a group of states led by West Virginia mounted a successful legal challenge that went to the U.S. Supreme Court.
But Julie McNamara, deputy policy director with the Union of Concerned Scientists, said the agency took great pains to conform the rule to the legal constraints outlined by the court.
“This rule is specifically responsive to that Supreme Court decision,” she said. “Which doesn’t mean that it won’t go to the courts but this is so carefully hewn to that decision that it should be robust.”
The four rules EPA released Thursday mainly target coal-fired power plants.
“By developing these standards in a clear, transparent, inclusive manner, EPA is cutting pollution while ensuring that power companies can make smart investments and continue to deliver reliable electricity for all Americans,” EPA Administrator Michael S. Regan said.
In some ways, they attach a framework to a sea change in electric generation that is already well under way, McNamara said.
Coal accounted for just 16% of U.S. electric generation in 2023, according to the U.S. Energy Information Administration. In 1990, by comparison, it comprised more than 54% of power generation. However, some states are more reliant on coal power than others.
In 2021, the most coal-dependent states were West Virginia, Missouri, Wyoming and Kentucky, per a 2022 report by the EIA.
“This rulemaking adds structure to that transition,” McNamara said. “For those who have chosen not to assess the future use of their coal plants, this forces that.”
The same EIA report found that Ohio and Pennsylvania had the largest declines in coal-fired capacity over the past two decades. Both states shifted from coal to natural gas as their largest source of electricity over that period.
Heather O’Neill, president and CEO of the clean energy trade group Advanced Energy United, said the new regulations are a chance for utilities to embrace cheaper, cleaner and more reliable options for the electric grid.
“Instead of looking to build new gas plants or prolong the life of old coal plants, utilities should be taking advantage of the cheaper, cleaner, and more trusty tools in the toolbox,” she said.
In 2009, the EPA concluded that greenhouse gas emissions “endanger our nation’s public health and welfare,” the agency wrote, adding that since that time, “the evidence of the harms posed by GHG emissions has only grown and Americans experience the destructive and worsening effects of climate change every day.”
The new carbon emissions regulation will apply to existing coal plants and new natural gas plants. Coal plants that plan to operate beyond 2039 will have to capture 90% of their carbon emissions by 2032. New gas plants are split into three categories based on their capacity factor, a measure of how much electricity is generated over a period of time relative to the maximum amount it could have produced.
The plants that run the most (more than 40% capacity factor) will have to capture 90% of their carbon emissions by 2032. Existing gas plants will be regulated under a forthcoming rule that “more comprehensively addresses GHG emissions from this portion of the fleet,” the agency said.
Michelle Solomon, a senior policy analyst for Energy Innovation, an energy and climate policy think tank, predicts that most coal plants will close rather than install the costly technology to capture carbon emissions.
“Climate goals aside, the public health impacts of the rules in securing the retirement of coal fired power plants is so important,” she said. Coal power in the U.S. has been increasingly pressured by cheaper gas and renewable generation and mounting environmental restrictions, but some grid operators have still been caught flat-footed by the pace of coal plant closures.
“I think the role of this rule, to provide that certainty about where we’re going, is so crucial to get the entities that have control over the rate of the transition to start to take action here,” she said. But the National Rural Electric Cooperative Association’s CEO, Jim Matheson, called the rules “unlawful, unrealistic and unachievable” noting that it relies on technology “that is not ready for prime time.”
And Todd Snitchler, president and CEO of the Electric Power Supply Association, a trade group for competitive power suppliers, called the rule “a painful example of aspirational policy outpacing physical and operational realities” because of its reliance on unproven carbon capture and hydrogen blending technologies to cut emissions.
The EPA called the revision to the Mercury and Air Toxic Standards “the most significant update since MATS was first issued in February 2012.” It predicted the rule would cut emissions of mercury and other air pollutants like nickel, arsenic, lead, soot, sulfur dioxide, nitrogen oxide and others. It cuts the mercury limit by 70% for power plants fired by lignite coal, which is the lowest grade of coal and one of the dirtiest to burn for power generation.
For all coal plants, the emissions limit for toxic metals is reduced by 67%. The EPA says the rule will result in major cuts in releases of mercury and other hazardous metals, fine particulate matter, nitrogen oxides and carbon dioxide. The agency projects “$300 million in health benefits,” including reducing risks of heart attacks, cancer and developmental delays in children and $130 million in climate benefits.
Coal fired power plants use huge volumes of water, and when the wastewater is returned to lakes, rivers and streams it can be laden with mercury, arsenic and other metals as well as bromide, chloride and other pollution and contaminate drinking water and harm aquatic life.
The new rule is projected to cut about 670 million pounds of pollutants discharged in wastewater from coal plants per year. Plants that will cease coal combustion over the next decade can abide by less stringent rules.
“Power plants for far too long have been able to get away with treating our waterways like an open sewer,” said Thomas Cmar, a senior attorney at Earthjustice, a nonprofit environmental law organization, during a briefing on the new rules earlier this week.
Coal ash, what’s left after coal has been burned for power generation, is one the nation’s largest waste streams. The 2015 EPA Coal Combustion Residuals rule were the first federal regulations for coal ash. But that rule left about half of the ash sitting at power plant sites and other locations – much of it in unlined disposal pits – unregulated because it did not apply to so-called “legacy impoundments” that were not being used to accept new ash.
“We’re going to see a long-awaited crackdown on coal ash pollution from America’s coal plants, and it’ll be a huge win for America’s health and water resources,” said Lisa Evans, a senior attorney with Earthjustice. “They are all likely leaking toxic chemicals like arsenic into groundwater and most contain levels of radioactivity that can be dangerous to human health.”
Groundwater monitoring data shows that the vast majority of ash ponds at coal plants are contaminating groundwater, said Abel Russ, a senior attorney with the Environmental Integrity Project. Butunder the old rule, Russ said, facilities could dodge cleanup requirements by blaming contamination on older ash dumps not covered by the regulation.
“This is a huge loophole,” Russ said. “You can’t restore groundwater quality if you’re only addressing half of the coal ash sources on site.”
However, several attorneys on the Earthjustice briefing said the new rules, which will require monitoring at clean up and hundreds of more ash sites, will only be as good as the enforcement.
“It’s meaningful only if these utilities obey the law. Unfortunately to date, many of them have not,” said Frank Holleman, a senior attorney with the Southern Environmental Law Center.
Utah News Dispatch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Utah News Dispatch maintains editorial independence. Contact Editor McKenzie Romero for questions: info@utahnewsdispatch.com. Follow Utah News Dispatch on Facebook and Twitter.
Click the link to read the article on the WyoFile website (Dustin Bleizeffer):
April 26, 2024
Embracing the state’s decades of collaboration, federal officials have found more agreement than outrage in response to a pending plan to protect the iconic western bird.
As home to about 38% of the planet’s remaining greater sage grouse — far more than any other state or province — and the architect of key conservation measures, Wyoming has a lot to gain or lose from upcoming changes to the complex, multi-agency matrix of rules and regulations governing management of the imperiled bird and its habitat.
Those stakes were top of mind Wednesday evening for Natrona County rancher Doug Cooper and others who attended a BLM information session on the agency’s recently released draft management plan for sage grouse habitat.
“When you say ‘conservation,’ it sounds wonderful,” Cooper said. “But I’m not sure ‘conservation’ is going to mean just that when we get down on the ground.”
Similar questions bubbled up for the dozen residents trying to make sense of the latest developments in what has been a whipsaw of approaches between Republican and Democratic administrations. Does the pending plan account for sage grouse predation from ravens and magpies? Is livestock grazing considered a harmful practice that might come under new restrictions in sage grouse habitats? And how might restrictions on federal lands impact grazing and oil and gas development on adjacent private property?
Not only is the bird’s future at stake, but it serves as an indicator for 350 other species that rely on a sprawling sage-steppe ecosystem that also supports rural economies in Wyoming and throughout much of the West. If the sage grouse is in peril, so are myriad other species and rural economies, according to proponents. The future of the species and its habitat also has major implications for the oil and gas industry, which frequently targets minerals underlying the sage grouse’s habitat in Wyoming.
The agency is soliciting public comments through June 13 on its draft environmental impact statement. After weighing that input, the BLM will issue a final rule for how it will manage sage grouse habitat in 10 western states, including the species’ stronghold in Wyoming.
“It is extremely important to get your guys’ feedback and ideas on how this plan can be improved,” BLM Wyoming Sage Grouse Coordinator Matt Holloran said.
Holloran, a wildlife biologist who has led myriad sage grouse studies, explained that the draft plan includes several aspects of the agency’s 2015 and 2019 plans while incorporating new scientific data and accounting for mounting pressures on the bird’s habitat from climate change, invasive plant species and wildfire.
The draft plan includes six alternative approaches, ranging from very stringent conservation measures to no change in current management. The BLM’s “preferred” option is Alternative 5, which mostly aligns with Wyoming’s own evolving management strategies implemented by executive order under recent governors.
That alignment with state policy has likely contributed to stakeholders across the spectrum in Wyoming expressing cautious, but caveated, optimism since the BLM published the draft plan in March.
Sage grouse conservation in Wyoming
The BLM manages 18 million surface acres and about 43 million acres of subsurface minerals in Wyoming. Although the agency does not manage wildlife, it does manage wildlife habitats, giving it an outsized influence on the state’s bedrock energy, recreation, wildlife and agriculture industries.
When conservation groups in the early 2000s sounded alarms about declining sage grouse populations, state leaders sprung into action fearing economy-endangering federal action, including a potential listing under the Endangered Species Act. Wyoming has earned accolades since for being the first state to voluntarily take on greater sage grouse protections — both a proactive drive for conservation and in defense of ongoing agriculture and oil and gas development.
In some instances, the state’s protections go further than the federal government’s, including a maximum 5% disturbance threshold for industrial activity in sage grouse “core areas.” So far, Wyoming is the only western state with a disturbance threshold that also takes wildfire impacts into account.
How the 5% calculation is made, however, is important. Some critics have alleged that some core area boundaries are simply made larger to allow for more disturbance.
So far, the BLM management strategies align with Wyoming’s, which are prescribed in its sage grouse core areas plan and overseen by the Sage-Grouse Implementation Team.
Following Wyoming’s lead, the BLM proposes to maintain livestock grazing within core areas — mostly considered an insignificant impact and, in some cases, beneficial to sage grouse, according to state and federal documents. Although the BLM’s preferred alternative doesn’t include major changes to grazing, it does further define poor grazing practices that would be restricted in sage grouse management areas, according to local BLM officials.
Stakeholder responses
Oil and gas industry officials in Wyoming have tentatively expressed hope for a workable federal approach to conserving sage grouse and its habitat. Notably, the BLM’s preferred alternative does not include new leasing restrictions for oil and gas.
Conservation groups, however, want the BLM to include the use of a special wildlife habitat designation — Areas of Critical Environmental Concern — which would prohibit industrial activities. They point to a 2021 U.S. Geological Survey study that shows sage grouse populations have declined 80% throughout the West since 1965, and that even with recent conservation measures the species’ population is still expected to decline.
Responding to a question Wednesday, the BLM’s Holloran said the agency takes the species’ cyclical population into account. “What you see is those lows keep getting lower and the highs are not as high,” he said.
The Petroleum Association of Wyoming says it will push back against calls to include stringent habitat designations such as Areas of Critical Environmental Concern.
“Alternative 5 is the best option presented, but there is still work to be done,” PAW Vice President Ryan McConnaughey told WyoFile via email. “We appreciate the BLM’s willingness to take a measured approach and will work through the comment process to share our concerns.”
Reached for comment, Gov. Mark Gordon’s office referred to earlier statements regarding the BLM’s draft plan.
“While more analysis of this is needed,” Gordon said in March, “the first pass shows the BLM picked a preferred alternative that will allow for detailed comments that specifically [address] Wyoming’s concerns, including that the preferred alternative does not propose Areas of Critical Environmental Concern (ACEC) on top of our state identified core areas.”
Visit this BLM website for more information regarding the draft plan and how to comment.
by Jonathan Thompson, High Country News
April 25, 2024
Welcome to the Landline, a monthly newsletter from High Country News about land, water, wildlife, climate and conservation in the Western United States. Sign up to get it in your inbox.
On March 27, Interior Secretary Deb Haaland signed an order withdrawing nearly 222,000 acres of federal land in western Colorado’s Thompson Divide area from future mining claims and oil and gas leases. The protected area includes aspen forests, alpine ridges, piñon-juniper-dotted mesas and high-country meadows — diverse habitat that is home to an array of big game species and other wildlife. It stretches from Glenwood Springs to Crested Butte and over to Paonia, home of High Country News’ headquarters.
The move was a big deal for the eclectic ensemble of local ranchers, environmentalists and recreational users who had spent the last two decades fighting proposed mining and fossil fuel development in the area. It solidified a decade-old ban on new oil and gas leases while also driving a nail into the coffin of a thwarted bid to mine molybdenum on the “Red Lady,” a wildflower-strewn mountain outside Crested Butte.
The Thompson Divide protections cover just one-tenth of 1% of the land administered by the Bureau of Land Management. So a cynic might see this temporary withdrawal — it expires in 2044 — as little more than a mildly consequential attempt by President Joe Biden to further differentiate himself from his Republican rival and perhaps regain the support of voters disillusioned by his administration’s failure to end or significantly curtail fossil fuel development on public lands.
Zoom out a bit, though, and a much different picture reveals itself: The Thompson Divide withdrawal, like the Chaco region leasing ban, is merely one piece in a far larger policy puzzle. Taken alone, they’re not terribly significant. But the whole is far greater than the sum of the parts: It’s the most significant shift in public-land management since Congress passed the Federal Land Policy and Management Act of 1976, which mandated multiple use and sought to rid the BLM of its reputation as the “Bureau of Livestock and Mining,” in the process rocking the Western political landscape and sparking the Sagebrush Rebellion.
The administration has issued so many public-lands-related orders, rules and protections over the last several weeks that I’ve had a tough time keeping up. Tracking the environmentalists’ fluctuating responses — along with the growing outrage from Republican officials — has been downright exhausting, and at times exasperating. The recent acts include:
The BLM finalized its methane waste prevention rule on March 27, requiring operators on public lands to find and repair leaks and to reduce flaring and venting of the potent greenhouse gas. Each year, oil and gas facilities on federal land lose about 44.2 billion cubic feet of methane — i.e., natural gas — and other associated gases to venting and flaring alone. This equates to burning 2.7 million tons of coal, and it also robs American taxpayers of as much as $32 million per year in lost royalties. The rule will not only require drillers to capture or reuse methane when feasible, it will also charge royalties on wasted gas, bringing in tens of millions of dollars annually in additional revenue.
The administration blocked new oil and gas leases on 13 million acres — or just over half — of the National Petroleum Reserve-Alaska. The move is a bittersweet victory for environmentalists; it doesn’t affect the gargantuan Willow Project, which the Biden administration approved last year, or any other active leases in the reserve. Alaska Republicans slammed Biden nonetheless, calling his action an “illegal” blow and a “one-two punch” to the state’s economy.
The administration revoked a Trump-era approval for the proposed 211-mile Ambler industrial road through northwestern Alaska wilderness, saying it would violate environmental laws and harm wildlife and Indigenous subsistence hunters. The road would give mining companies access to a massive copper deposit buried beneath ecologically sensitive lands.
The Biden administration also blocked new mining claims and oil and gas leases on 4,200 acres of federal land near Placitas, New Mexico, for the next 50 years. The Pueblos of San Felipe and Santa Ana consider the land in question sacred.
The administration finalized rules raising royalty rates and reclamation bonding amounts for oil and gas drilling on federal land. Environmentalists welcomed the new rules, which mark one of the most significant changes to the Mineral Leasing Act since it became law in 1920. However, some argued that they did not go far enough to reduce hydrocarbon production — or reduce the resulting emissions — from public lands. And a ProPublica/Capital & Main investigation found that the new bonding amounts, which were based on flawed math, would not be nearly enough to cover the actual costs of cleaning up all the wells. Meanwhile, New Mexico’s oil and gas industry, which has enjoyed record-high profits in recent years, whined: “The new anti-oil and gas development policies will substantially handcuff production opportunities for small producers.”
Probably the most intense reactions — of both elation and anger — came in response to last week’s finalization of the public-lands rule, designed to put conservation on a par with oil and gas development, grazing and other extractive uses. The rule directs the agency to prioritize landscape health and creates a mechanism enabling outside entities to lease public land for restoration projects, much as a rancher or oil and gas company might lease BLM land. It also allows firms to lease land for mitigation work to offset impacts from development elsewhere on public lands, and it clarifies the process for designating areas of critical environmental concern, or ACECs, where land managers can add extra regulations to protect cultural or natural resources. And it directs the agency to incorporate Indigenous knowledge into decision-making, particularly when considering ACECs.
Environmentalists lauded the decision. In a written statement, Wilderness Society President Jamie Williams called it a “generation-defining shift in how we manage our shared resources.” It was met by an equally fervent but entirely opposite response from conservative lawmakers. Rep. Lauren Boebert, a Colorado Republican, denounced it as a “land grab” that would “end federal grazing” and block access to public lands — a misguided worry that was echoed by a variety of her GOP colleagues.
Both responses are likely to prove excessive. The rule doesn’t add any new restrictions or put any public land off-limits to development, nor does it give greens the power to expel a legitimate drilling, mining or grazing operation in order to do a restoration project. It simply provides new tools to help the BLM uphold the multiple-use charge that Congress mandated nearly 50 years ago, before the agency went astray during the Reagan and successive Bush administrations. And Boebert’s notion that it will hurt grazing is especially off-base: While Biden has occasionally stood up to the oil industry, he has done nothing to reform public-lands grazing policy, much to conservationists’ dismay.
Again, taken on its own, the new rule is hardly radical or revolutionary. But combined with the administration’s other actions — from significantly reducing the amount of land leased to oil and gas companies, to restricting energy development via resource management plans, to establishing new and restoring shrunken national monuments — it begins to amount to something important. At long last, a coherent — if imperfect — public-lands climate policy has begun to take shape.
This article first appeared on High Country News and is republished here under a Creative Commons license.
Click the link to read the article on the Getches-Wilkinson Center website (Andrew Teegarden):
April 24, 2024
Currently, there are two conflicting bills in the Colorado Legislature that would create a new state program regulating the dredge and fill of wetlands and streams across the State – HB 24-1379 and SB 24-127. A key question facing lawmakers is the scope of this new program or, in other words, which wetlands and streams will be protected. The sponsors of the Senate Bill assert that it will mirror the federal program as it existed under the Obama Administration and that it adopts the “significant nexus” test, which dictated the scope of the federal Clean Water Act program during that timeframe. This article dispels that argument and demonstrates that SB24-127 would, in fact, cover far fewer wetlands and waterbodies than were protected under the significant nexus test of the federal Clean Water Act.
I. The “Significant Nexus” Test
The history of wetland regulation at the federal level has a long and complicated history that we have previously detailed. The Supreme Court has now decided four cases that address the definition of “Waters of the United States” (WOTUS). In response to those cases, nearly every administration since 2000 has attempted to craft its own definition of WOTUS by regulation.
In 2006, the Supreme Court decided Rapanos v. Army Corps of Engineers, and Justice Kennedy developed by the significant nexus test in his concurring opinion.1 Pursuant to this test, wetlands were said to have a significant nexus to traditional navigable waters if, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.”2 To conform with this test, the Obama administration amended the regulatory definition of WOTUS and included eight categories of waters.
Under this regulatory definition of the significant nexus test, any wetlands located within the 100-year floodplain and are not more than 1500 feet from the ordinary high-water line were defined as “adjacent” and therefore a WOTUS.3 Additionally, wetlands within 4,000 feet of the high-water mark of any traditional navigable water, interstate water, territorial seas, impoundments, or covered tributaries could be included as a WOTUS if they have an effect on the chemical, physical, or biological integrity of navigable waters.4 Therefore, the significant nexus set a floor by including all wetlands within the 100-year floodplain and within 1500 feet from the ordinary high-water line while also protecting certain other wetlands within 4,000 feet of a high water mark depending on site characteristics.
II. Distinguishing SB24-127 from the Significant Nexus Test
SB24-127 does not fill the gap created by Sackett, because it does not provide potential protections for those wetlands out to 4000 feet from the ordinary high-water mark, which could include a significant number of wetlands in a high elevation state like Colorado. SB24-127 would limit the jurisdiction of the new state removal fill program, to those waters within the 100-year floodplain and those not more than 1500 feet from a lake, reservoir, or stream.5 Unlike the Obama Administration’s significant nexus test, however, SB24-127 does not provide for coverage for any wetlands outside the 100-year floodplain and 1500-foot demarcation, regardless of whether those waters have a significant nexus to traditional navigable waters. Thus, if a wetland were outside the 100-year floodplain and 1501 feet away from a state water, it would not be protected regardless of how important that wetland may be in protecting the integrity of state waters and wildlife habitat.
SB24-127 claims to limit jurisdiction under these parameters because it would help remove the time intensive and costly process of completing case-specific analysis to determine jurisdiction. However, the program will still have to engage in determining which wetlands are subject to the state agency’s jurisdiction.
III. Implications for Colorado
Our analysis demonstrates that SB24-127 does not fill the gap created by the Sackett decision. As compared to the significant nexus test that was put in place by the Obama Administration after the Rapanos decision, SB24-127 would protect far fewer wetlands across Colorado even though these wetlands play a critical role in protecting clean water, wildlife habitat, and outdoor recreation.
In our view, HB24-1379 is the better policy choice, because it includes all wetlands within the definition of state waters and thus does not require time-consuming and expensive case-by-case determinations about jurisdiction. HB 24-1379 also includes exclusions for certain activities – not categories of wetlands – which are much easier to administer. And it relies heavily on general permits for routine categories of activities, which provide predictability and certainty for the regulated community.
If we make the wrong policy choice in designing Colorado’s wetland protection program, we may possibly threaten the interconnectedness of our water systems in Colorado, create long-term water quality impacts, and affect downstream waters. Our state waters also play a vital role in flood and fire mitigation which are likely to be of greater importance as climate change ravages the Western United States.
SB24-179 does not fill the Sackett gap, it instead creates new, unpredictable regulatory gaps that will be difficult and expensive to administer, creating uncertainty for the regulated community and other stakeholders. If there is one thing we have learned from the tortured history of the federal wetland program it is this – any attempt to define the scope of the program based on the “connection” between a wetland and other surface water is doomed to conflict and unnecessary expense. All wetlands deserve protection, especially here in the state of Colorado. We have an opportunity right now to avoid that morass, but SB24-179 would simply lead us back down that same dusty road.
1 547 U.S. 715 (2006).
2 Id. at 780.
3 33 C.F.R § 328.3 (2018).
4 Id.
5 SB24-127 p. 19 lines 7-10 available at https://leg.colorado.gov/sites/default/files/documents/2024A/bills/2024a_127_01.pdf
