Colorado lawmakers are expected to consider legislation next session aimed at providing project permits while still protecting wetlands, which were left vulnerable after a U.S. Supreme Court decision in May.
The Environmental Protection Agency’s Clean Water Act has protected the “Waters of the United States” (WOTUS) since 1972. But exactly which wetlands and water bodies fall under the definition of WOTUS has long been the subject of litigation and policy that changed with each presidential administration. In Sackett v. EPA, the U.S. Supreme Court found that the definition of WOTUS did not include wetlands adjacent to streams. Only wetlands with a direct surface water connection to a stream or permanent body of water are now protected under the Clean Water Act.
While it is not always clear whether a wetland has a direct surface connection to a qualifying stream, experts say the decision removed federal protections from at least half of Colorado’s wetlands. The ruling also excludes from protection many ephemeral streams that run only seasonally during spring runoff or summer monsoons.
The state will have to decide how to protect the wetlands that now fall outside the purview of the Clean Water Act, which water policy experts are calling “gap waters.”
According to a policy brief by Andrew Teegarden, a water fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado Boulder, “the Supreme Court’s decision in Sackett created a gaping hole in Colorado’s program for protecting and regulating discharge and fill activities and the current state of the law in Colorado is inadequate to fill the gap.”
“Sackett was more devastating than anyone envisioned it being,” said Alex Funk, director of water resources and senior counsel at the Theodore Roosevelt Conservation Partnership. “Basically, if it’s not a continuously flowing stream or interstate river, it’s no longer protected.”
The main way many wetlands had federal protection under the Clean Water Act in the past was through a permitting process with the U.S. Army Corps of Engineers. Developers and property owners had to get a 404 permit — also known as a dredge-and-fill permit — if they wanted to undertake certain projects that involved wetlands. The corps applied guidelines and criteria for making sure the project would not destroy or degrade the waters.
The Colorado Department of Public Health and Environment is now expected to present to lawmakers a state-level permitting process that would step in to fill the regulatory gap left by Sackett v. EPA. Last summer, CDPHE enacted a new policy that requires notice of discharge into state waters and allows the agency to take enforcement actions when unpermitted discharges of dredge and fill materials takes place. This policy was intended to be temporary while the state comes up with a permanent program.
CDPHE has also been meeting with and taking input from stakeholders — including environmental groups, agriculture interests and water providers — to explore creating a more permanent regulatory program to protect Colorado’s streams and wetlands to the same extent they were protected before the Sackett v. EPA decision.
In August, Trisha Oeth, CDPHE’s director of environmental health and protection, told lawmakers at a meeting of the Water Resources and Agriculture Committee that the agency has been hearing from stakeholders that any program should have a clear scope and also avoid permitting delays. She said stakeholders want to maintain the status quo and do not have an interest in developing a program that goes beyond the scope of what was federally protected prior to Sackett v. EPA.
“We are going to need to be creative here in Colorado to address those concerns about balance — preserving the status quo with having an efficient program,” Oeth said. “We’ve also been hearing it’s really important to protect source waters.”
Fens could be at risk
One example of those source waters is a type of sensitive, high-country wetland now potentially left vulnerable: fens. These are groundwater-fed wetlands that form peat over thousands of years, are home to rare plants and insects, and cannot be easily restored if destroyed. Fens are sometimes isolated with no stream as an outlet.
“All of our groundwater-fed wetlands are outside of the Clean Water Act regulation now,” said David Cooper, a senior research scientist at Colorado State University and a fen expert. “In the San Juan mountains, we did a project and I think we estimated there were about 10,000 fens, and most of them, because of the Sackett decision, would not be considered adjacent to navigable waters.”
Cooper said most of the water that feeds streams in Colorado goes through fens in the highest part of watersheds, which remove sediment and pollutants. They are also a key piece of the ecosystem that support biodiversity, he said.
“Fens occupy a 10th of 1% of our landscape, but they support probably 25% of species in Colorado,” Cooper said. “Their importance greatly exceeds their tiny presence on the landscape.”
Aaron Citron, a senior policy adviser for The Nature Conservancy, said any new state program should provide regulatory certainty, redirect development to less environmentally sensitive areas and be consistent with the best available wetlands science.
“Every presidential administration has kind of redefined the scope of the 404 program,” he said. “And that’s not good for regulated entities; it’s not good for the natural environment. It just makes everything more complicated. So, one of the goals is to just set a standard and decide that Colorado knows what’s best for Colorado waters.”
Pace of transition has accelerated, deepened and broadened as headwaters state struggles to embrace limits of water supply in a warming, likely drying climate
This story, a collaboration of Big Pivots and Aspen Journalism, is the first of a five-part series that examines the intersection of water and urban landscapes in Colorado.
Like weekly haircuts for men, a regularly mowed lawn of Kentucky bluegrass was long a prerequisite for civic respectability in Colorado’s towns and cities. That expectation has begun shifting.
A growing cultural norm blesses a broader range of respectable landscapes, which require not much more water than what occurs naturally across most of Colorado. Denver, for example, averages 15.6 inches annually.
Native grasses, most prominently buffalo and blue grama, need half to one-third as much of the supplemental water a year required to keep Kentucky bluegrass — a species native to Europe — bright green. In metro Denver, for example, Westminster and Broomfield estimate that these cool-season grasses require 24 to 29 inches of supplemental water annually in addition to the 15 to 16 inches of average precipitation. Other water-wise landscape choices can also ratchet down water requirements by at least half.
Many homeowners have the additional goal of installing shrubs, flowers and other plants that attract pollinators.
The shift can be traced back to at least 1981, when Denver Water coined the term “xeriscape” to reflect landscaping choices that use less water. The drive to cut excessive water use for landscapes picked up significantly during and after the searing drought of 2002. When that drought ended, many consumers retained their new, more judicious habits of irrigation.
Now, say water providers and others, the pace of transition has accelerated, deepened and broadened. If still far from universal, Coloradans have started developing a new aesthetic around urban landscapes. What is required to be a responsible homeowner and property manager is being redefined.
With Colorado River water woes still unresolved and depletion of aquifers in the Denver Basin and elsewhere continuing, Big Pivots in collaboration with Aspen Journalism set out to understand water devoted to urban landscapes in Colorado. This is the first of five stories about this giant and probably long-term shift in how we use water in urban landscapes.
Nobody argues that this shift alone will solve Colorado’s water challenges. Water devoted to lawns and other urban landscapes constitutes just 3% to 4% of Colorado’s total water consumption. Nonetheless, that use is being questioned as never before.
Western Slope residents have long objected to dewatering of rivers and streams for lawns along the Front Range. Now, water utilities on both sides of the Continental Divide see more-judicious use of water as being the most cost-effective strategy in serving larger populations in a hotter and possibly drier climate. And many homeowners have decided that by replacing imported varieties of turf with native plants, they can be part of the solution to declining populations of pollinating insects.
Colorado legislators have passed several laws in recent years to curb standard turf-growing practices. In January, they will be asked to approve a bill that would require local governments and homeowners associations to ban the installation, the planting or the placement of new nonfunctional turf, artificial turf or invasive plant species in commercial, institutional or industrial properties. The bill takes aim at purely aesthetic non-functional turf along roads and in medians. Residential homes would be exempted from the prohibition.
Nonfunctional turf generally means grass intended to be seen but rarely, if ever, touched by human feet. For example, the Flatirons Mall in Broomfield, a hospital in Fort Collins and a warehouse complex in Aurora have broad swathes of green grass surrounding them. Another example is along the drive-up lane to an ATM at a bank on East Colfax Avenue in Denver. Cosmetic or aesthetic turf is universal.
The bill has the backing of both Denver and Aurora. They argue that replacing existing turf, a costly task, is negated if the saved water is then used for new development that hews to the old habits of landscape. Aurora, in particular, has made clear that voluntary approaches have had only marginal success.
Colorado Springs, although equally committed to reducing water use, believes that a harder but better approach will be more effective in the long term. The Colorado Municipal League, representing 270 of the state’s 272 towns and cities, has concerns. At issue is a familiar one in Colorado: state mandate vs. local prerogative.
Voluntary approaches, though, have been impressive. For example, thoughtful design can be found in abundance at Centerra, a commercial and housing complex in Loveland. There’s still bluegrass, but it tends to be minimized.
In Boulder, Resource Central began offering water-conservation services to Front Range communities during the severe drought of 2002. The nonprofit reports a rapid uptick in its lawn replacement and other programs. It now has relationships with 47 water providers who help support the nonprofit’s Garden In A Box and other programs.
“This is the first year that we have seen more than 10,000 people participating in our various water-conservation programs, which tells us that this is rapidly becoming the new norm in Colorado,” said Resource Central CEO Neal Lurie, referring to lower-water landscapes. “What happens is one person makes a change in their yard and their neighbors come over and ask, ‘What are you doing?’”
It is that neighbor-to-neighbor conversation that is driving the urban landscape changes evident to anyone moving about most Colorado towns and cities.
Growing awareness of water scarcity also drives these altered sensibilities as well as new government regulations limiting outdoor water use. Declined flows in the Colorado River figure prominently in the thinking of many individuals but also public officials.
Aurora adopted bold restrictions on water use for outdoor landscapes in 2022. No use of Kentucky bluegrass or other so-called cool-weather varieties that use higher volumes of water will be allowed at new golf courses. The same applies to new front yards, although 500 square feet or 45% of backyards, whichever is less, will be permitted. The regulations also take aim at water for road medians and curbside landscapes. Fountains, waterfalls and other ornamental water features will also be banned in new development.
Aurora Mayor Mike Coffman — whose city has the state’s third-highest population, at 400,000 — cites worries about potential diminishment of water imported from the Colorado River basin as one of several reasons for taking action. “The longer you wait, the more dramatic your decisions have to be,” he said. “I think we’re on the right path.”
At least 38 utilities and other water providers have instituted turf-replacement programs, offering incentives that in some places can reach $3 per square foot of turf removed. That’s almost double the number of jurisdictions of just a few years ago. Like Aurora, many local governments have also adopted limitations on outdoor landscaping. Broomfield adopted regulations in late August.
Doing their small parts
In southeast Denver, Meredith Slater took a break on an August morning to explain why she and her husband, Jake Hyman, earlier this year had replaced the lawn of their brick home with plants native to Colorado and nearby areas. The yellow, red and orange flowers were thick with bees and other pollinators.
“Over the last few years, I’ve come to recognize that native bees, birds and insects don’t have a place to call home in much of Denver because of all the grass and nonnatives,” Slater said as her husband used a tiller to rip out the remaining Kentucky bluegrass on the other half of the front yard. “That was part of the impetus for this.”
Slater works for a global organization called ActionAid. It operates in 40 countries, many of them in Africa and Asia, to assist farmers faced with the challenges of a warming climate. That work has made her particularly attentive to the challenge of protecting adequate water for agriculture. In Denver, she sees water devoted to lush green lawns as wasteful.
“I’m just trying to do my little part with my front yard,” she said.
Her thought was echoed by dozens of homeowners from Colorado Springs to Fort Collins to Durango who were interviewed for this series of stories. “We’re not going to save the world, but we’re doing what we can,” said a Denver homeowner.
Colorado gets 83% of its water from rivers, streams and other surface sources, while the other 17% comes from groundwater, according to the 2023 Colorado Water Plan. Agriculture uses about 90% of Colorado’s water, towns and cities 7%, and industry 3%.
Within urban areas, outdoor irrigation consumes roughly 50% of water.
Why would cities want to cut outdoor use? Motivations vary.
For most jurisdictions, conserving water through reduced outdoor use represents the cheapest way to serve larger populations. Colorado Springs Utilities, for example, serves a population of 500,000 but has expectations of serving 800,000 at buildout.
Population growth along the Front Range during the past century has been primarily satisfied by transmountain diversions. Half of the water for Front Range cities comes from the Western Slope. In theory, Colorado has undeveloped water in the Colorado River. New transmountain diversions, though, can be very expensive and problematic. Aurora and Colorado Springs, for example, completed their Homestake diversion project in 1967. Since the early 1980s, they have been seeking additional diversions from Homestake Creek, an Eagle River tributary. Conservation has been more easily accomplished.
Easier in most cases than transmountain diversions — but still difficult — has been converting agriculture water to municipal use. That’s true even in the South Platte River Basin. As The New York Times reported in a September story, the Denver suburb of Thornton began acquiring water rights near Fort Collins in 1985. Construction of a 72-mile pipeline to bring that water to Thornton residents and businesses has barely started.
A pipeline almost to Nebraska
Several of Denver’s south-metro-area cities have been unsustainably drafting the Denver Basin aquifers. Parker gets nearly 60% of its water from the aquifers; Castle Rock attributes “most” of its water from the aquifers.
Parker Water and Sanitation District, working with farmers in the Sterling area, plans to pump water roughly 125 miles across eastern Colorado. It estimates the cost at $800 million. Castle Rock may participate in that project and also has a project called Box Elder that would draw water from 60 miles away in northeastern Colorado.
Lessened demand from landscaping means less need for costly new infrastructure. It also makes water utilities more resilient in the face of drought. Landscapes can sparkle with little water. Actually, they can be even brighter at times. After all, the “perfect” lawn is a monotone, unblemished by yellow dandelions or anything else.
Still other water providers have been motivated simply by a desire to leave water in streams and rivers. That’s the case in Vail, which is landlocked with no expectations of significant expansion. There, the town has been replacing water-consumptive Kentucky bluegrass in town parks since 2019 with less-thirsty native species. This year’s projects also include removal of grass from an on-ramp to Interstate 70.
Vail’s motivation is simple: to preserve flows in Gore Creek and protect the aquatic environment, said Todd Oppenheimer, the town’s capital projects manager.
Boulder has a robust portfolio of water rights and self-imposed growth limitations. Unlike neighboring jurisdictions along the Front Range, It has no practical considerations driving landscape changes. But for 20 years, it has been participating in Resource Central’s water-saving programs. This year, the city provided each customer $500 that can be applied toward either turf removal or Garden In A Box programs.
Turf removal reflects community values, said Laurel Olsen, Boulder’s utilities engagement and outreach senior program manager. “We have decided as a community that wise use of our resources is a high priority.”
In theory, this should result in Boulder’s leaving more water in creeks. The city, however, does not have a tabulation of that.
Colorado’s state government has also been delivering nudges. State legislators in 2022 directed the state’s leading water agency, the Colorado Water Conservation Board, to develop a statewide program that would use financial incentives to encourage the voluntary replacement of irrigated turf with water-wise landscaping. That law allocated $2 million for the programs. Through early September, funding had been awarded to 25 jurisdictions with 13 others considered “eligible.” A deadline to apply for a second round of grants was in late August.
In February, Gov. Jared Polis appointed 21 members to a new Urban Landscape Conservation Task Force. He asked them to identify practical ways to advance outdoor water-conservation through state policy and local initiatives. Members must report their findings in January.
Several of the major water providers in the Colorado River basin have also agreed to reduce water for urban landscapes.
In August 2022, water providers from Denver, Aurora and Pueblo, along with those from Los Angeles and other southwestern cities, announced a memorandum of understanding. The MOU commits participating water utilities to “reduce the quantity of nonfunctional turf grass by 30% through replacement with drought- and climate-resilient landscaping, while maintaining vital urban landscapes and tree canopies that benefit our communities, wildlife and the environment.”
The MOU does not specify water savings, only the reduction in turf.
Driven, at least in part, by the Colorado River troubles, public perceptions have been shifting rapidly.
Denver Water has conducted surveys since 2016 that ask respondents how scarce they think water is now, and how scarce they think it will be in 10 years. Survey results show a sharp uptick in concern.
“Two-thirds of people think water is scarce now, and 90% of people think water is going to become more scarce in the future,” said Greg Fisher, manager of demand planning for Denver Water.
Fisher sees a link to the “innumerable Colorado River stories” that have been published and broadcast in recent years. “We’re attaching that to climate change. And I think from what I read, it’s a lot of people asking, ‘What can I do? I now understand there’s this problem in the Colorado River. What can I do to help that?’ And I think we’re starting to show them a way that they can help.”
Denver Water in 1981 coined the term “xeriscape,” combining the Greek prefix “xero,” which means dry, with landscape. Water conservation advocates now rarely use it. They say too many people take it to mean zero-landscape, and for many, that means rocks and cactus. Yards of gravel are anathema to landscape architects. Not only are gravel yards boring, but they contribute to the heat-island effect of urban areas.
Colorado Springs-based landscape architect Carla Anderson said she constantly stresses the alternatives to turf grasses imported from other parts of the world to Colorado’s semi-arid climate.
“I have been advocating for years – not saying that grass is bad but to put it in places that make sense. A little bit of turf can go an awful long way in creating a feeling of an oasis,” she said. “The good thing is we’re getting some wonderful options to bluegrass.”
In her work, she sees a generational shift. Older people, generally 70-plus, tend to insist on bluegrass lawns because they see it as a status symbol. “If you have this big, sweeping front lawn, you have made it,” she said.
Younger generations, even including those in their 60s, have a broader perspective. They are less likely to assign status to a lawn.
But conversions to water-wise landscapes do take time and energy. “That is a stumbling block for a lot of lower-income people,” said Anderson.
Riding on a bus in Colorado Springs, her attention was directed toward a weedy front yard. “What would you call that?” she was asked. “An unkempt yard.”
Colorado Springs officials estimate that 30% of homes in the city are unkempt. The challenge they see is to ease the conversion to low-water yards. They hope to help foster native grasses, which use little water and, once installed, demand less maintenance.
The process of changing attitudes will take time, said Anderson. “It won’t happen overnight. We have this long affair with the bluegrass lawn in all corners of our country, and so the process of changing people’s perception of what is right and looks good, what is aesthetically pleasing, is a significant process. It is just going to take time. Unfortunately, we don’t have that much time. We need to crack down and save water in a hurry.”
A new word
As the word “xeriscape” falls out of favor, it is being replaced with new words: water-wise, water-efficient and Coloradoscape.
“There is no agreement yet” on which should be the commonly accepted phrase, said Lindsay Rogers of Western Resource Advocates, a group that has devoted substantial resources to the shift.
“We want climate-appropriate landscapes in Colorado that are verdant and beautiful and use native plants but also use less water than Kentucky bluegrass,” she said.
Westminster is unusual among Front Range cities in its small reliance on the Colorado River. The city’s water utility located midway between Denver and Boulder serves 135,000 people. Most of the water comes from Clear Creek. And it has no expectations of rapid growth, unlike Aurora, which envisions a near doubling of population in the next 50 years.
More than 80% of Westminster residents live in single-family homes and have above-average affluence. Converting lawns into water-efficient landscapes, which saves both time and money in the long term, has high up-front costs that rebates by utilities only partially cover.
From his perspective as Westminster’s senior water resource analyst, Drew Beckwith sees a broad social transformation beginning.
“We are in the midst of seeing this social change in how people view a green lawn along the Front Range of Colorado,” he said.
Beckwith perceives a challenge to prevailing notions. Bright-green lawns require not only regular irrigation in most years, but frequent fertilization. They must be mowed regularly, at least to conform to cultural expectations.
“My customers are saying, ’I don’t want to do that anymore,’ and I don’t think it’s only because of the cost of water,” Beckwith said. “I think there is a new social idea, that a green-grass lawn is not a very responsible thing to do in a water-short and dry area like Colorado.”
Westminster, like dozens of other municipalities along the Front Range, has been paying homeowners to replace thirsty turf. The city shares the costs of landscape transformation with homeowners by providing a rebate on physical turf removal, providing new plants to take its place, or a mix of the two. From 11,000 square feet, when the program began in 2020, the program expanded last year to 107,000 square feet in 191 separate projects. On average, customers paid $560 for each project, and the city paid $650.
“We have taken out 4 acres of turf grass in residential properties in Westminster over the last three years,” Beckwith said. That’s enough water for 20 single-family homes.
In these numbers, Beckwith sees just the earliest stage of a transformation.
“You will have the bleeding edge of folks who pick it up because they are super trend-setters. They were doing this over a decade ago,” he said. “I think we are past the bleeding edge, and we are now into the early adopters. These are normal people who are saying, ’Yeah, this is probably something we should do.’”
Beckwith expects to see, during the next three to five years, many more of the early adopters wanting to replace their turf.
”And then we are going to be in the meat of that general population that is going to start changing their landscapes,” he said. “Beyond will be some people who will never want to change. And that’s OK.”
Nothing to the contrary
By Beckwith’s classification, Don and Jill Brown would be classified as being on the bleeding edge. They live in a red-brick house in Colorado Springs with a large lot. He’s a counselor, of marriages among other things, and she is an author.
In 2017, they decided to do something with a weedy 30-foot-by-80-foot section of their large lot. But instead of Kentucky bluegrass, said Don Brown, they wanted vegetation more natural to Colorado. They chose blue grama.
The grass can go brown in a drought but does not die. “In a dry year, we might water it once or twice. This year, not at all,” he said.
It grows to be about knee-high, but that’s it. Once established, it leaves no room for weeds. He rarely mows.
“We really love it,” he said. “We like the look of it. We like the low maintenance. And we especially like the sense of being responsible stewards of this property.”
A native grass, blue grama evolved in the context of Colorado’s arid environment, the nation’s seventh driest, with an average 18.1 inches of precipitation annually. Colorado Springs gets a little less: 15 to 16 inches.
“In this fairly arid state, we learned that if you use native plants, you will do a lot better,” Don Brown said.
As for the aesthetics, it hasn’t provoked any contrary comments from passersby. “It looks like a meadow,” he said.
Next in the series: The Western Slope delivers 70% of the Colorado River water. So why do Aspen, Vail and Grand Junction, too, want to crimp thirsty turf?
Allen Best, a longtime Colorado journalist, publishes Big Pivots, which tracks the energy and water transitions in Colorado and beyond. Aspen Journalism is a nonprofit, investigative news organization covering water, environment and community. This story is part of a five-part series produced in a collaboration between Big Pivots and Aspen Journalism. Find more at https://bigpivots.com and at https://aspenjournalism.org