Every March, thousands of Sandhill cranes stop in #GreatSandDunes National Park & Preserve on their way to their northern breeding grounds. The fields and wetlands of #Colorado’s San Luis Valley provide excellent habitat for these majestic #birds. With the dunes and mountains nearby, they dance and call to each other. It’s one of nature’s great spectacles. Photo @greatsanddunesnps by #NationalPark Service.
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.
Moose heading down to the wetlands and the Colorado River in Rocky Mountain National Park May 19, 2023.
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.
Colorado voters may be asked to let more money flow to water projects by allowing the state to keep all of the sports betting tax revenue it collects, if a measure referring the issue to the November ballot is approved by lawmakers.
House Bill 24-1436 has bipartisan support, with House Speaker Julie McCluskie, D-Dillon, and Rep. Marc Catlin, R-Montrose, serving as the measure’s main sponsors in the House, and Sen. Dylan Roberts, D-Frisco, and Sen. Cleave Simpson, R-Alamosa, leading sponsorship in the Senate.
The sports betting program was initially approved by voters in 2019, passing with just over 51% of the vote. The measure collects a 10% tax on the proceeds of licensed sports betting. Some of the money is used to cover the cost of regulating betting and the rest, up to $29 million total, is funneled toward water projects. In the event tax collections exceed $29 million, the legislature decides how to refund the money under the Taxpayer’s Bill of Rights.
That’s where House Bill 1436 comes in.
If House Bill 1436 passes but voters reject the ballot measure, the bill directs the state to refund any sports betting tax revenue collected in excess of $29 million to sports betting operators. The provision is aimed at persuading voters to cast a “yes” vote on the question.
While the original sports betting ballot measure received tepid support, the tax question, if it makes the ballot, may win broader support due to ongoing voter concerns about water conservation and protection and the high-profile crisis on the drought-stressed Colorado River, veteran pollster and political analyst Floyd Ciruli said.
“I have not seen any polls that negate what we knew strongly back then, that water conservation and water protection are environmental issues that Coloradans care strongly about,” he said.
Since 2021, nearly $43.1 million in sports betting tax revenue has been transferred to water projects, according to the Colorado Department of Revenue, with annual cash for water projects nearly tripling during that time, rising from $7.9 million at the end of the 2021 fiscal year, to $23.7 million in 2023.
Brian Jackson, director of Western water for the Environmental Defense Fund, helped spearhead the 2019 campaign backing the initial ballot measure. He and a similar coalition of environmental groups are forming to campaign for this latest ballot measure as well, if lawmakers ultimately refer it to the ballot.
“Frankly, we never thought we would hit that cap,” Jackson said. “But revenues and profits have snowballed.”
State forecasts indicate the cap is likely to be exceeded in the next year or two, Jackson said, reaching $31 million this fiscal year, which ends June 30, and $35 million in the next.
Jackson said early polling indicates strong support for a new ballot initiative among Democratic and Republican voters statewide, but he said those who back removing the cap plan to campaign heavily even with the early support, in part because this November’s ballot is expected to be crowded with a number of questions on topics like property taxes and abortion access.
“We are going to run a campaign because this is a great opportunity to invest in our state and to widen the message about conserving and protecting Colorado’s water,” Jackson said.
Little formal opposition appears to have formed as of now, although at least one tribal community, the Ute Mountain Ute in Towaoc, has been engaged in a three-year battle with the state over the sports betting program. Among the issues is whether, as a sovereign nation, the tribe should be required to pay the 10% tax on profits, according to Peter Ortego, general counsel for the Ute Mountain Ute.
“We believe federal law makes it clear that we do not have to pay that tax,” Ortego said. “But we are very far apart from the state on that issue.” The Ute Mountain Ute have not taken a position on House Bill 1436.
The Colorado Department of Revenue did not respond to a request for comment about the dispute with the tribes over sports betting.
The gaming industry spent millions in 2019 in support of the original sports betting ballot measure. Whether it will support or oppose House Bill 1436 isn’t clear. The Colorado Gaming Association did not respond to a request for comment.
The measure has passed the House and is now in the Senate. The 2024 legislative session ends May 8.
More by Jerd SmithJerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
Corn in Baca County. Photo credit: Allen Best/Big Pivots
Click the link to read the article on the Big Pivots website (Allen Best):
Unanimous votes in the Colorado Legislature are rare, but they do happen. Consider HB24-1435, the funding for the Colorado Water Conservation Board projects.
The big duffle bag of funding for various projects was approved 13-0 by the Senate Water and Agriculture Resources Committee. It had bipartisan sponsors, including Rep. Marc Catlin, a former water district official from Montrose.
“Colorado has been a leader in water for a long, long time, and this is bill is an opportunity for us to stay in that leadership position,” said Catlin, a Republican and a co-sponsor.
“This is one of my favorite bills,” said Rep. Karen McCormick, a Democrat from Longmont and former veterinarian. She is also a co-sponsor.
This historical photo shows the penstocks of the Shoshone power plant above the Colorado River. A coalition led by the Colorado River District is seeking to purchase the water rights associated with the plant. Credit: Library of Congress photo
The bill has some very big-ticket items, including $20 million for the Shoshone power plant agreement between Western Slope interests and Public Service Co. of Colorado, better known by its parent company, Xcel Energy. Andy Mueller, the general manager of the Glenwood Springs-based Colorado River District, called the effort to keep the water in the river “incredibly important” to those who make a living in the Colorado River Basin.
This map shows the 15-mile reach of the Colorado River near Grand Junction, home to four species of endangered fish. Map credit: CWCB
Mueller also pointed out that keeping water in the river will benefit of four endangered species of fish that inhabit what is called the 15-mile stretch of the Colorado River near Grand Junction.
Another $2 million was appropriated for the turf-replacement program in cities, a program first funded in 2022. Another mid-range item is telemetry for Snotel sites, to keep track of snow depths, the better to predict runoff. It is to get $1.8 million.
Among the smallest items in the budget is a big one for Baca County, in Colorado’s southeast corner. The bill, if adopted, would provide the Colorado Water Conservation Board with $250,000 to be used to evaluate the remaining water in aquifers underlying southeastern Colorado. There, near the communities of Springfield and Walsh, some wells long ago exhausted the Ogallala aquifer and have gone deeper into lower aquifers, in a few cases exhausting those, too. Farmers in other areas continue to pump with only modest declines.
What exactly is the status of the underground water there? How many more decades can the agricultural economy dependent upon water from the aquifers continue? The area is well aside from the Arkansas River or other sources of snowmelt.
A study by the McLaughlin Group in 2002 delivered numbers that are sobering. Wes McKinley, a former state legislator from Walsh, at a meeting in February covered by the Plainsman Herald of Springfield, said the McLaughlin study numbers show that 84% of the water has been extracted. That study suggested 50-some years of water remaining. If correct, that leaves 34 years of water today.
Tim Hume, the area’s representation on the Colorado Groundwater Commission, has emphasized that he believes this new study will be needed to accurately determine how water should be managed.
How soon will this study proceed? asked Rep. Ty Winter, a Republican from Trinidad who represents southeastern Colorado. Tracy Kosloff, the deputy director of the Colorado Division of Water Resources, answered that the technical analysis should begin sometime after July. “I would think it is reasonable to finish it up by the end of 2025, but that is just an educated guess.”
She said the state would work with the Baca County community to come up with a common goal and direction “about how they want to manage their resources.”
Unlike the Republican River area of northeastern Colorado, where farmers also have been plunging wells into the Ogallala and other aquifers, this area of southeastern Colorado has no native river. In the Republican Basin, Colorado is trying to remove 25,000 acres from irrigation by the end of 2029 in order to leave more water to move into the Republican River. See story. A similar proposition is underway in the San Luis Valley, where farmers have also extensively tapped the underground aquifers that are tributary to the Rio Grande. See story.
San Luis Valley Groundwater
The closest to critical questioning of the bill came from Rep. Richard Holtorf, a Republican who represents many of the farming counties of northeastern Colorado. He questioned the $2 million allocated to the Office of the Attorney General.
He was told that $1 million of that constantly replenishing fund is allocated to the Colorado River, $110,000 for the Republican River, $459,000 for the Rio Grande, $35,000 for the Arkansas and $200,000 for the South Platte.
Then there’s the litigation with Nebraska about the proposed ditch that would begin in Colorado near Julesburg but deliver water to Nebraska’s Perkins County. Colorado hotly disputes that plan.
Lauren Ris, the director of the Colorado Water Conservation Board, said Colorado is “very confident in our legal strategy.”
Holtorf also noted that the severance tax provides 25% of the funding for the water operations. The severance tax comes from fossil fuel development. As Colorado moves to renewable energy, “what happens to this Colorado water if we kill the goose that lays the golden egg?”
Ris replied said future declines in the severance tax is a conversation underway among many agencies in Colorado state government.
The South Platte Hotel building that sits at the Two Forks site, where the North and South forks of the South Platte River come together. Photo: Brent Gardner-Smith/Aspen Journalism
The Grand River Diversion Dam, also known as the “Roller Dam”, was built in 1913 to divert water from the Colorado River to the Government Highline Canal, which farmers use to irrigate their lands in the Grand Valley. Photo credit: Bethany Blitz/Aspen Journalism
HB24-1436, introduced by a bipartisan group of four Western Slope lawmakers, would increase the $29 million cap that voters approved when they legalized sports betting in the state, money to be used entirely for water projects. That happened in 2019 when voters narrowly approved Proposition DD, which legalized sports betting in Colorado and imposed a 10% tax on proceeds. Under the bill, which was introduced by House Speaker Julie McCluskie, D-Dillon, and Rep. Marc Catlin, R-Montrose, the state would be able to retain an additional $15.2 million over the next three years…
Tax money from sports betting goes into the Colorado Water Plan Implementation Fund, which is administered by the Colorado Water Conservation Board. That panel doles out the money in the form of grants for projects already identified under the Colorado Water Plan. That plan, implemented in 2015, identified about $20 billion worth of water projects that would be needed to offset dwindling supplies and a handle a growing population.
Click the link to read the article on the Sky-Hi News website (Elliot Wenzler). Here’s an excerpt:
April 8, 2024
Conservationists point to graywater uses as a way to cut down on water consumption in the West
A bill that would allow graywater systems to be included in new homes throughout Colorado received rare unanimous approval from the Colorado House on Friday…The bipartisan House Bill 2024-1362 (Measures to Incentivize Graywater Use) is sponsored by Rep. Meghan Lukens, D-Steamboat Springs, and Rep. Marc Catlin, R-Montrose, Sen. Dylan Roberts, D-Frisco, and Sen. Cleave Simpson, R-Alamosa…Currently, local governments are permitted to opt into graywater programs. Under the bill, the whole state would be automatically allowed to include graywater systems in new constructions, but local governments could choose to opt their community out…
Since the state gave initial approval for local governments to opt into graywater programs in 2013, only six jurisdictions have chosen to do so including Pitkin County, Grand Junction, Denver, Castle Rock, Fort Collins, Broomfield and Golden. If approved by the Senate and signed by the governor, the bill would go into effect at the start of 2026.
Graywater is mentioned in the Colorado Water Plan as a possible tool for the state to meet current and future water needs. It notes there are challenges with the technology, including the effort of retrofitting existing buildings with the systems. It also includes a “general lack of interest on the part of local governments to enact local graywater ordinances,” a “lack of interest from developers” and “concerns that property owners could be resistant to operating and maintaining a graywater system within their residences” as challenges.
Blanca Wetlands, Colorado BLM-managed ACEC Blanca Wetlands is a network of lakes, ponds, marshes and wet meadows designated for its recreation and wetland values. The BLM Colorado and its partners have made strides in preserving, restoring and managing the area to provide rich and diverse habitats for wildlife and the public. To visit or get more information, see: http://www.blm.gov/co/st/en/fo/slvfo/blanca_wetlands.html. By Bureau of Land Management – Blanca Wetlands Area of Critical Environmental Concern, Colorado, Public Domain, https://commons.wikimedia.org/w/index.php?curid=42089248
Colorado lawmakers will consider a fresh proposal to grant the state authority to oversee streams and wetlands left unprotected by a U.S. Supreme Court decision last year.
House Bill 24-1379, sponsored by House Speaker Julie McCluskie, D-Dillon, Rep. Karen McCormick, D-Longmont, and Sen. Dylan Roberts, D-Frisco, would allow the Colorado Department of Public Health and Environment (CDPHE) to oversee a wide array of industrial players, including home and road builders and mining companies, and determine what steps are necessary to minimize any damage to streams and wetlands caused by their activities.
In May, the U.S. Supreme Court issued a ruling in Sackett vs. EPA that sharply limits the streams and wetlands that qualify for protection under the Clean Water Act, a decision that water observers said had a particularly broad impact in the West. In Colorado and other Western states, vast numbers of streams are temporary, flowing only after major rainstorms and during spring runoff season, when the mountain snow melts.
Colorado Rivers. Credit: Geology.com
In addition, hundreds of Colorado wetlands lack an obvious surface connection to streams, in part because so many of the state’s streams don’t flow year-round.
“As a state we don’t want to let a good crisis go to waste,” McCluskie said in a briefing last week, referring to the Sackett decision and the regulatory gap that was created. “Our water is part of the romance and tradition of being a Coloradan. Protecting those waterways could not be more important. But we recognize there needs to be clarity and certainty for our industry partners. And we have tried to be very considerate of differing viewpoints.”
At issue is how the U.S. Environmental Protection Agency now defines so-called Waters of the United States, or WOTUS, which determines which waterways and wetlands are protected under the federal Clean Water Act. The definition has been heavily litigated in the nation’s lower courts since the 1980s and has changed dramatically under different presidential administrations.
The U.S. Supreme Court decided in May that the WOTUS definition that included wetlands adjacent to streams was too broad.
In its ruling, the court said only those wetlands with a direct surface connection to a stream or permanent body of water, for instance, should be protected.
The court’s decision in the WOTUS case means it will be up to Colorado and other states to decide whether and how to handle that regulation — including permitting — and enforcement.
And last month, Republican Sen. Barbara Kirkmeyer, of Brighton, introduced Senate Bill 24-127, also designed to fill the regulatory gap. The Kirkmeyer measure, which has broad industry support, is scheduled for its first hearing April 4, but it’s likely to meet stiff resistance in the Democratic-controlled General Assembly.
Among the key differences between the two measures is that Kirkmeyer’s proposal states that any new rules can’t be more restrictive than those in place prior to the Sackett decision, while McCluskie’s says protections should be “at least as protective” as those in place at that time, according to Jarrett Freedman, spokesman for the House Democrats.
Another difference is that Kirkmeyer’s bill would place the new oversight program within the Colorado Department of Natural Resources instead of the CDPHE. Kirkmeyer said a huge permitting backlog at CDPHE shows the agency would be unable to handle dredge-and-fill permitting required under her proposal.
McCluskie, however, believes the new program would be better housed within the state health department and that new funding would alleviate permitting delays.
The first hearing on the House Bill 24-1379 has not been scheduled, Freedman said.
A broad array of environmental groups has come out in favor of McCluskie’s measure.
Iron Fen. Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
“Wetlands are nature’s kidneys, they filter natural pollutants, they help reduce the severity of wildfires,” said Josh Kuhn, senior water campaign manager at Conservation Colorado who spoke on behalf of the Protect Colorado Waters Coalition.
“But the Sackett decision left many of those wetlands unprotected … and we have also lost protections for seasonal streams. If pollution is dumped into streams when snow melts and runs off, that pollution gets washed into the larger rivers. … If there is mining or development activity and they are dumping fill, or dirt, into dry streambeds, when there is water moving through those streambeds it is going to take those pollutants with it and pollute our water supply,” he said.
Farm, homebuilding and mining interests have been closely watching the bill, which includes extensive exemptions for agriculture for such things as irrigation ditch repair, and on-farm water management activities. It also includes some exemptions for mining operations.
But there is still concern about the regulatory burden the new program will place on those industries and the time it will take to write new regulations and launch the program.
House Bill 24-1379 stipulates that rules be written by May 31, 2025.
“The rulemakings that they are contemplating are going to be complicated and detailed, and it’s going to be a lot to accomplish in a short period of time,” said John Kolanz, a northern Colorado attorney who often represents developers and who is tracking the bill. “It seems like a tall task.”
More by Jerd SmithJerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
Ephemeral streams are streams that do not always flow. They are above the groundwater reservoir and appear after precipitation in the area. Via Socratic.org
The budget, which is not yet finalized, includes funding for non-lethal wolf deterrence, water litigation and wildlife management. The six-member Joint Budget Committee, which writes the state budget, settled on a $40.6 billion budget that would take effect July 1…
Water
The proposed budget also includes about $300,000 for two additional full-time employees in the Department of Law to help secure the state’s water interests…Colorado is part of nine interstate water compacts, one international treaty, two U.S. Supreme Court decrees and one interstate agreement.
“As climate change and population growth continue to impact Colorado’s water obligations, the DOL’s defense of Colorado’s water rights is more critical than ever,” according to the document.
One of the new employees, a policy analyst, will monitor government regulations and neighboring states’ activities on water policy. The other position will “bolster the representation and litigation support of the DOL across the various river basins,” support the state’s efforts to negotiate Colorado’s water and compact positions and communicate with the state’s significant water interests.
Blanca Wetlands, Colorado BLM-managed ACEC Blanca Wetlands is a network of lakes, ponds, marshes and wet meadows designated for its recreation and wetland values. The BLM Colorado and its partners have made strides in preserving, restoring and managing the area to provide rich and diverse habitats for wildlife and the public. To visit or get more information, see: http://www.blm.gov/co/st/en/fo/slvfo/blanca_wetlands.html. By Bureau of Land Management – Blanca Wetlands Area of Critical Environmental Concern, Colorado, Public Domain, https://commons.wikimedia.org/w/index.php?curid=42089248
Click the link to read the article on the Summit Daily website (Elliot Wenzler). Here’s an excerpt:
March 22, 2024
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…
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.
Wetlands, which are havens of biodiversity, offer priceless ecological benefits. As wetlands are lost to development nationwide, critics of the dam project worry about its local impact.
(Photo Credit: John Fielder via Writers on the Range)
Outrage over the Trump-packed U.S. Supreme Court rolling back federal reproductive rights has in some ways overshadowed the now 6-3 conservative majority’s relentless assault on environmental regulations that for decades protected Colorado’s clean air and water.
Former president and current GOP candidate Donald Trump’s recently installed SCOTUS (he appointed three of the six staunch conservatives in his last term), has consistently ruled against federal environmental regulation – from carbon-spewing power plants to downwind air pollution. And it’s likely to rule against President Joe Biden’s new vehicle emissions limits.
Last year’s Sackett v. Environmental Protection Agency (EPA) decision – in which an Idaho couple simply didn’t want to have to apply for a federal wetlands dredging permit — largely flew under the national outrage radar, but it stripped away Clean Water Act protections for fully two-thirds of Colorado’s wetlands and streams, according to an amicus brief filed in support of those federal protections by Colorado Attorney General Phil Weiser.
Now Colorado lawmakers are trying to step into that regulatory void with Wednesday’s filing of the Regulate Dredge and Fill Activities in State Waters bill (HB24-1379). If passed, it would require a rulemaking process by the Colorado Department of Health and Environment’s Water Quality and Control Division to permit dredge and fill activities on both public and private land.
“There’s no mistake that [the Sackett] decision came right after Trump appointed three new justices to the Supreme Court, where there’s a conservative majority who could issue an industry-favorable ruling on this issue,” Conservation Colorado Senior Water Campaign Manager Josh Kuhn said in a phone interview.
“It’s unfortunate that the Supreme Court ruled in favor of industry but now it does create an opportunity for Colorado to create regulatory certainty, and it’s imperative that we get this done the right way,” Kuhn added. “The Supreme Court’s decision ignores the science of groundwater. What it did is it said if you are standing in a wetland, and you don’t see surface water connecting that wetland to another covered [by EPA regulation] water body, it is no longer protected.”
Iron Fen. Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Anyone who’s hiked Colorado’s backcountry knows there are all sorts of water bodies that are disconnected from rivers, streams and lakes, fed by springs and often only existing on the surface when it’s been raining or following a decent snow year. In fact, the Colorado Wetland Information Center identifies 15 different types of wetland ecological systems in Colorado.
Those wetlands and ephemeral (not continually flowing) streams provide critical habitat for Colorado’s dwindling wildlife, guard against increasingly devastating wildfires fueled by manmade climate change and filter pollutants from vital sources of drinking water.
“Colorado has already lost half of our wetlands since statehood, and they are super-important for ecosystem services, where they mitigate floods, decrease the severity of wildfire, help retain water like sponges and release that water to provide base flows in drier parts of the year, providing critical wildlife habitat for about 80% of wildlife,” Kuhn said.
Now, thanks to the right-leaning SCOTUS – including Colorado’s own Neil Gorsuch – 60% of those waterbodies are currently unprotected by the Clean Water Act’s 404 permit process administered successfully for five decades by the U.S. Army Corps of Engineers. Now the state of Colorado must attempt to fill that role.
“Water is a precious resource and is critical to our economy and way of life,” Colorado Gov. Jared Polis wrote in a press release Wednesday. “I am committed to protecting Colorado’s water today and building a more water-efficient, sustainable, and resilient future. Today, we further our commitment to protect Colorado’s water for the next generation of Coloradans.”
The Polis-backed bill is sponsored in the Colorado Senate by Dylan Roberts, D-Frisco, and in the Colorado House by state Rep. Karen McCormick, D-Longmont, and Speaker of the House Julie McCluskie, D-Dillon.
A competing bill (SB24-127) was introduced last month by Republican state Sen. Barb Kirkmeyer. That proposal, dubbed the Regulate Dredged & Fill Material State Waters bill, has the backing of the Colorado Association of Homebuilders – a development trade organization that did not return a call seeking comment on the Dem-backed bill.
“Now that [definition of] Waters of the U.S. is much more limited than it was, the things that [SCOTUS] said are not ‘Waters of the U.S.’ are ephemeral streams, disconnected wetlands and fens,” Eagle County Commissioner Kathy Chandler-Henry said in a phone interview. “So on the Western Slope, the mountains, nearly all of our streams are not year-round streams. They flow when there’s water. So if those are not protected anymore by the feds, then are they going to be protected by the state or not? That’s the question that’s going be answered in these two competing legislative bills.”
Chandler-Henry is currently the Eagle County representative for and president of both the Colorado River District and the Water Quality and Quantity (QQ) program of the Northwest Colorado Council of Governments. She said both groups are likely to weigh in on the new bill at some point.
Conservation Colorado’s Kuhn said the Kirkmeyer bill “basically draws a political line. It says that if waters are outside of 1,500 feet from the historical floodplain, they would be unprotected.”
That would make state regulation of dredge and fill more expensive, he argues, because the state would then have to physically survey and determine whether bodies of water outside of that boundary should be regulated. State regulation will primarily be paid for by permit fees and possibly some federal grants. Colorado is out front nationally on this contentious issue.
Blanca Wetlands, Colorado BLM-managed ACEC Blanca Wetlands is a network of lakes, ponds, marshes and wet meadows designated for its recreation and wetland values. The BLM Colorado and its partners have made strides in preserving, restoring and managing the area to provide rich and diverse habitats for wildlife and the public. To visit or get more information, see: http://www.blm.gov/co/st/en/fo/slvfo/blanca_wetlands.html. By Bureau of Land Management – Blanca Wetlands Area of Critical Environmental Concern, Colorado, Public Domain, https://commons.wikimedia.org/w/index.php?curid=42089248
“The Kirkmeyer bill houses the program in the Department of Natural Resources, and so that would also drive up the costs because you’d have to create a new division, and you’d also have to create a new commission and staff for that commission, whereas that expertise already exists within the [CDPHE’s] Water Quality Control Division and the Water Quality Control Commission.”
Kuhn thinks Colorado’s agriculture industry should support HB24-1379.
“We’re actually hopeful that ag will not be opposing this legislation because in the existing 404 program there are longstanding exemptions and exclusions,” Kuhn said. “One of those exemptions is for certain types of agricultural activity. That would be copied and pasted into legislation and that should appease concerns from the ag community.”
And Kuhn added that while the new law will mostly focus on development aimed at dredging and filling bodies of water on private land, there’s a concern about protections for wetlands on Forest Service and U.S. Bureau of Land Management (BLM) land facing development.
“The [SCOTUS] ruling does apply to both public and private land, but the majority of the development pressure is on private land,” Kuhn said. “That doesn’t mean if there was a mining claim on Forest Service land and they wanted to build a road or something – [in the past] they would have had to secure a 404 permit — but if those waters weren’t jurisdictional today, they could just go out and destroy it without a permit.”
Mark Eddy, representing the Protect Colorado Waters Coalition, cited AG Weiser’s contention that responsible industry should not fear reasonable regulation.
“That’s the way we look at this is it’s reasonable, it’s transparent, everybody knows what the rules are, and it protects a valuable resource,” Eddy said. “It is not saying you can never touch these places; it’s that there’s a process in place to determine which ones you can touch, and then, when you do have to develop them, what kind of mitigation needs to occur.”
Tom Caldwell, co-owner and head brewer at Big Trout Brewing Company in Winter Park, said in a press release that his company needs clean, cold water to craft award-winning beer.
“Our town depends on clean water for a multitude of tourist activities that bring people from all over the world,” Caldwell said. “We need to protect our waterways and wetlands. House Speaker Julie McCluskie and Senator Dylan Roberts’ bill is a needed remedy to a terrible decision by the U.S. Supreme Court.”
Colorado Rivers. Credit: Geology.com
Click the link to read “State lawmakers propose plan after half of Colorado’s waters lost federal protections: Bill would create state program to regulate dredging and filling waterways” on The Denver Post website (Elise Schmelzer). Here’s an excerpt:
March 21, 2024
Democratic lawmakers on Wednesday night introduced a bill that requires the state to create a permitting process for people who want to fill in, dredge or pave over waterways. Colorado has had no method to regulate these dredge-and-fill activities since the May court decision removed federal protection for more than half of Colorado’s waters…House Bill 1379 would require the Colorado Department of Public Health and Environment to develop a permitting process by May 1, 2025. That process would need to minimize harm to the environment when people want to dig up or fill in waterways while building housing developments, roads or utilities. The permitting process would mirror the federal process that no longer applies to wetlands and seasonal streams…
Both wetlands and seasonal streams serve critical roles in the state’s environment, conservation advocates said. Seasonal streams deliver snowmelt to larger streams during runoff season. Wetlands act like a sponge in the ecosystem — they absorb floodwaters, serve as critical animal habitat and act as a buffer to wildfire…Half of Colorado’s wetlands have disappeared or been destroyed since the late 1800s, according to the Colorado Wetland Information Center…“
Wetlands, headwater streams, and washes are profoundly connected like capillaries of the circulatory system to larger waters downstream,” Abby Burk, senior manager of the Western Rivers Program at Audubon Rockies, said in a news release. She called the waterways “essential for birds and vital natural systems,” which support the resilience of water supplies in Colorado’s drying climate.
Colorado River headwaters near Kremmling, Colorado. Photo: Abby Burk via Audubon Rockies
Click the link to read “Democratic leaders introduce bill to protect Colorado wetlands” on the Colorado Politics website (Marianne Goodland). Here’s an excerpt:
March 21, 2024
Nearly a million acres of wetlands in Colorado could gain state protection that lost federal oversight when the U.S. Supreme Court decided last year wetlands that lacked direct connection to bodies of water didn’t require Environmental Protection Agency preservations…Last summer, lawmakers heard from municipal and state officials that Colorado needed to develop its own protections for those wetlands…
Alex Funk, director of water resources and senior counsel for the Theodore Roosevelt Conservation Partnership, said in August that almost 90% of fish and wildlife in Colorado rely on the state’s wetlands at some point during their lifecycle. That includes species such as the Gunnison sage grouse, greenback cutthroat trout, and migratory birds. These ecosystems are also crucial to the state’s economy, Funk said. They provide other benefits, such as filtering pollutants from drinking water or regulating sedimentation that may otherwise clog up infrastructure and reservoirs…
The bill would apply to about 60% of Colorado’s wetlands and is intended to cover those wetlands that are not already federally protected. The permitting framework in HB 1379 “is based on well-established approaches already used by the Army Corps of Engineers and will provide clarity on when a permit is needed. Normal farming and ranching activities, such as plowing, farm road construction, and erosion control practices would not require a permit,” the statement said. Until Sackett, the Army Corps’ permitting program protected Colorado waters from pollution caused by dredge and fill activities.
“Dredge and fill activities involve digging up or placing dirt and other fill material into wetlands or surface waters as part of construction projects,” the statement explained.
Colorado Territorial Map early 20th Century via Greg Hobbs. Note the large rectanglular area from Four Corners north and east. Those were the lands originally promised to the Ute tribes.
For a second year, the Ute Mountain Ute Tribe and Southern Ute Indian Tribe addressed the General Assembly in their annual State of the Tribes. Signed into law in 2022, Tribal Governments Annual Address to Joint Session requires that any future speaker of the state House of Representatives and the president of the state Senate invite representatives from Colorado’s recognized tribes to give an address to a joint session of the General Assembly on an annual basis.
“The Native Ute people were here long before Colorado was a state, and they deserve to have their voices heard and their needs addressed,” said Rep. Barbara McLachlan. “This annual address helps us forge a path forward together to ensure we’re fostering a strong inter-governmental relationship.”
[…]
Water rights
The Ute continue to experience shortfalls on water despite settlements, according to [Manuel] Heart. Heart stated that there must be a process through legislation to ensure water rights to tribes. [Melvin J.] Baker added that the lack of funding remains a critical issue for the Ute economy that depends on the water projects industrially and agriculturally.
“The Colorado river tribes have been left out of key conversations for too long,” Baker said. “We want a seat at the table, to be heard and part of the decisions, and not be overlooked. We want the commitment to protect water rights and no caps placed on the future developments of water resources.”
In response to this request Friday, a bipartisan resolution was passed by Speaker of the House Julie McCluskie (D); Rep. Barbara McLachlan (D); and Sens. Dylan Roberts (D) and Cleave Simpson (R) to urge Congress to fully fund the Water Infrastructure Improvements for the Nation (WIIN) Act, which would provide $35 million in funding for critical infrastructure projects across the country, including the Pine River Indian Irrigation Project, which carries freshwater to Southern Ute Indian Tribe land.
Governor Jared Polis signs non-functional turf law. Photo credit: Allen Best
Click the link to read the article on the Big Pivots website (Allen Best):
March 18, 2024
Bill signed into law on Friday makes thirsty imported grasses a no-no in new road medians and other public places that rarely see human feet. Native grasses OK.
The remarks in the office of Colorado Gov. Jared Polis on Friday afternoon were brief, befitting the bill that was soon to be signed into law, the state’s most aggressive effort yet to curb water allocated to urban landscaping.
“We want folks to be part of the solution around water and to reduce the water needs of their non-functional turf, ranging from Colorado-scaping and xeriscaping to lower-water solutions with different types of grasses that may require less water,” said Polis of SB24-005.
Taking the lectern, Sen. Dylan Roberts, a prime sponsor and a Democrat who represents much of northwestern Colorado, noted an irony. It had snowed hard the previous day along the northern Front Range, where about 75% of Coloradans live, and the snow was extremely wet, even for March.
“It’s funny, with all the snow right now, you might not think that we have to deal with a lot of water scarcity, but we do,” said Roberts, a Frisco resident.
“We know that in Colorado we face a historic drought and we need to put in place every single common-sense tool to save water that we can. And this is one of those.”
Colorado in 2022 began incentivizing removal of what is commonly called non-functional turf. The phrase means imported grass species with high water requirements that typically get almost no use. A legislative allocation of $2 million resulted in grants to about three-dozen communities across Colorado but especially in Front Range cities where 85% of the state’s residents live.
In September 2023, the Colorado Water Conservation Board awarded a $1.5 million grant to Boulder-based Resource Central. The nonprofit was formed in 1976 to encourage conservation. In 2023, it completed 604 lawn-replacement projects along the Front Range. Its marquee program, Garden In A Box, provides low-water plants and has partnerships with several dozen municipalities along the Front Range. The state grant will allow Resource Central to expand its programming to the Western Slope.
In October 2023 a year-round legislative water committee that is chaired by Roberts heard a proposal from Denver Water, Western Resource Advocates and others. That proposal was the basis for the new law.
Instead of incentives to change, the new law draws lines of restraint. Beginning in 2026, local governments can no longer allow the installation, planting or placement of non-functional turf, artificial turf, or invasive plant species. This applies to commercial, institutional, and industrial properties, but also common-interest community property. Read that as HOAs.
Also verboten will be planting of non-functional turf in street rights-of-way, parking lots, median or transportation corridors.
Non-functional turf planted with thirsty imported species will be banned from new road medians and other public and commercial places in Colordo that see few human feet beginning in 2026, a year earlier in projects of state government. Photo/Allen Best
The law applies to new or redeveloped state facilities beginning in 2025.
Imported species such as Kentucky bluegrass can use twice as much water as native grass. Native species such as buffalo and blue gamma or species hybridized for arid conditions will be allowed.
Several Colorado jurisdictions have gone further. Aurora and Castle Rock in 2022 both adopted limits to residential water use for landscaping. The state law does not touch water use at individual homes. The two municipalities both expect substantial population growth but have limited water portfolios for meeting new demand.
Other municipalities and water providers from Broomfield to Grand Junction have also adopted laws crowding out water-thirsty vegetation. Their motives vary but all are premised on Colorado’s tightening water supplies. Cities use only 7% of the state’s water, and roughly half of that goes to landscaping.
Yet developing new sources of water requires going farther afield, usually converting water from agriculture, and can become very expensive. Consider plans by Parker Water and Sanitation District and Castle Rock. They are planning a pipeline to the Sterling area in coming years with a new if smallish reservoir near Akron. In this case, the project has support from an irrigation district in the Sterling area, but all this new infrastructure comes at a great expense.
The bill faced no major opposition in the Legislature, although most House Republicans — nearly all from rural areas — voted against it.
During her time at the microphone, Rep. Karen McCormick, a Democrat from Longmont, emphasized the need to define what constitutes non-functional turf.
“Coming up with those terms of functional versus non-functional turf was really important so that the people of Colorado understand that the choices that we have in these spaces (can result in) beautiful, Western drought-tolerant grasses and bushes and flowers.” she said.
State Rep. Barbara McLachlan, a Democrat from Durango, emphasized cost savings as well as water savings. “If you’re not having a picnic on that little piece of turf or having a soccer game, you probably don’t need to be spending the water and money it takes to keep that alive.”
Sen. Cleave Simpson, a Republican from Alamosa who represents much of southwestern Colorado and the fourth prime sponsor, was not present for the bill-signing.
Rep. Karen McCormick of Longmont said that urban landscapes of great beauty can be created that need less water. Photo/Allen Best
Those present for the bill signing included Denver Water’s Alan Salazar, the chief executive, and Greg Fisher, the manager of demand planning.
A Denver Water staff member decades ago had invented the word “xeriscaping” but the agency had never put much muscle into curbing water use. After all, it had a flush water portfolio. The thinking as explained in Patty Limerick’s book about Denver Water, “A Ditch in Time,” was that if drought got bad enough, the agency could always squeeze residential use for water, as it did in the severe drought summer of 2002.
With new leadership and a worsening story in the Colorado River Basin, Denver had altered its thinking. The city – which provides water for about 1.6 million people, including many of the city’s suburbs – gets roughly half of its water from transmountain diversions. That statistic holds true for the Front Range altogether. Denver’s water rights are relatively senior, but they’re junior to the Colorado River Compact of 1922.
That compact assumed far more water in the river than occurred in most of the 20th century. Flows during the 21st century have diminished, at least in part due to intensifying heat. That heating – and drying – will very likely worsen in coming decades. While Colorado accurately claims that it has not used its full allocations under river compacts, there’s the underlying and shifting hydrology that argues against any certainty.
The city this year will partner with Resource Central, a first, to encourage transformation of front yards with high water demands into less-needy landscapes.
Lindsay Rogers, a water policy advisor for Western Resource Advocates, said the key work during the next couple of years will be to work with local jurisdictions to implement the new law.
“Not only that, they’ll need to figure out how they’re going to enforce their new landscaping standards. And if they do that well, this bill will be hugely impactful.”
She said this bill should be understood as being part of a “growing understanding that everyone needs to do their part to conserve. There are lots and lots of opportunities across the land-use development spectrum.”
At least some of those ideas can be found in a report by a state task force issued in late January. Polis had appointed the 21-member group a year before and gave it the job of examining what steps Colorado could take to reduce water devoted to urban landscaping.
After seven meetings, the task force issued a report in late January that concluded that “the time to rethink our landscapes is now.” It provided 10 recommendations.
Topping the recommendations was a statement in accord with the new law. The task force also called for continued support of turf replacement in existing development, promotion of irrigation efficiency and encouragement of pricing mechanism that steer decisions that promote water conservation.
Considering that it took well more than a century to install the existing urban landscapes, this shift will not be accomplished in a few short years. The climate could shift to produce more water for Colorado, but the warming atmosphere would almost certainly steal those gains.
In short, the water scarcity driving this new law is not going away.
See also this five-part series in 2023 published in collaboration with Aspen Journalism:
Colorado lawmakers OK’d a measure this week backing efforts to restore Grand Lake, the state’s deepest natural lake once known for its clear waters.
Advocates hope the resolution will help fuel statewide support for the complicated work involved in restoring the lake and give them leverage with the federal government to secure funding for a new fix.
The resolution is largely symbolic and doesn’t come with any money, but it adds to the growing coalition of water interests on the Western Slope and Front Range backing the effort.
After more than a year of work, Mike Cassio, president of the Three Lakes Watershed Association, said he is hopeful the resolution will create a new path forward after years of bureaucratic stalemate. The association advocates on behalf of Grand Lake, Shadow Mountain and Lake Granby.
“It’s been a long process, but this resolution puts the state legislators in support of what we are trying to do and we will be able to take that to our congressional representatives,” Cassio said.
The measure was carried by Sen. Dylan Roberts, a Democrat from Frisco, and House Speaker Julie McCluskie, a Democrat from Dillon.
“I’m really encouraged with all the work that has been done in the past few months and I think it will hopefully lead to more progress,” Roberts said.
Colorado-Big Thompson Project map. Courtesy of Northern Water.
Owned by the U.S. Bureau of Reclamation and operated by Northern Water, what’s known as the Colorado-Big Thompson Project gathers water from streams and rivers in Rocky Mountain National Park and Grand County, and stores it in Lake Granby and Shadow Mountain Reservoir. From there it is eventually moved into Grand Lake and delivered via the Adams Tunnel under the Continental Divide to Carter Lake and Horsetooth Reservoir, just west of Berthoud and Fort Collins, respectively.
On the Front Range, the water serves more than 1 million people and thousands of acres of irrigated farmlands. But during the pumping process on the Western Slope, algae and sediment are carried into Grand Lake, clouding its formerly clear waters and causing algae blooms and weed growth, and harming recreation.
Advocates have long been frustrated at the failure to find a permanent fix to the lake’s clarity issues, whether it’s through a major redesign of the giant federal system or operational changes.
The Bureau of Reclamation, Northern Water, Grand County and other agencies and local groups have been working since 2008 to find a way to keep the lake clearer, and Northern Water and others have experimented with different pumping patterns and other techniques to reduce disturbances to the lake’s waters.
Now an even broader coalition has come together, Cassio said, led by Grand County commissioners and Northern Water’s board of directors.
“Northern Water is fully committed to the continued and collaborative exploration of options to improve clarity in Grand Lake and water quality in the three lakes,” said Esther Vincent, Northern Water’s director of environmental services.
Last year, a technical working group reconvened, and is now studying new fixes that may be possible, including taking steps to reduce algae growth and introduce aeration in Shadow Mountain, a shallow artificial reservoir whose warm temperatures, weeds and sediment loads do the most damage to Grand Lake, Cassio said.
Though much more work lies ahead, the work at the legislature is critical, he said.
“This resolution is one piece of the puzzle,” Cassio said. “We’re at the finish line and everybody is coming together. It’s a wonderful thing.”
More by Jerd SmithJerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
Blanca Wetlands, Colorado BLM-managed ACEC Blanca Wetlands is a network of lakes, ponds, marshes and wet meadows designated for its recreation and wetland values. The BLM Colorado and its partners have made strides in preserving, restoring and managing the area to provide rich and diverse habitats for wildlife and the public. To visit or get more information, see: http://www.blm.gov/co/st/en/fo/slvfo/blanca_wetlands.html. By Bureau of Land Management – Blanca Wetlands Area of Critical Environmental Concern, Colorado, Public Domain, https://commons.wikimedia.org/w/index.php?curid=42089248
What’s the best way to protect hundreds of acres of wetlands and streams in Colorado, in the absence of federal rules that once did that work? It’s one of the biggest water issues facing state lawmakers this year.
But as the legislative session kicks into high gear, there is no consensus yet on how to proceed.
Last week, Republican Sen. Barbara Kirkmeyer, introduced Senate Bill 24-127 as a first stab at figuring it out.
At issue is how the U.S. Environmental Protection Agency now defines so-called Waters of the United States, or WOTUS, which determines which waterways and wetlands are protected under the federal Clean Water Act. The definition has been heavily litigated in the nation’s lower courts since the 1980s and has changed dramatically under different presidential administrations.
In May, in Sackett v. EPA the U.S. Supreme Court decided, among other things, that the WOTUS definition that included wetlands adjacent to streams, was too broad.
In its ruling, the court said only those wetlands with a direct surface connection to a stream or permanent body of water, for instance, should be protected.
The court’s decision in the WOTUS case means it will now be up to the state to handle that regulation — including permitting — and enforcement.
Water experts said the Sackett decision and the new Colorado permitting program will have far-ranging implications for the environment, as well as agriculture, construction and mining, all major parts of Colorado’s economy.
The U.S. Geological Survey, for instance, estimates 44% of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24% are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32% of Colorado streams are classified as being perennial, meaning they flow year-round.
Kirkmeyer’s bill would create a new, nine-member commission appointed by the governor that would be housed in the Colorado Department of Natural Resources. The commission would oversee a staff responsible for issuing permits regulating how any activity impacting nearby streams and wetlands, such as road building, home construction and mining, would be conducted to minimize and repair any disturbances the activity caused. It would also sharply limit the kinds of streams and wetlands that could be protected, in keeping with the narrow scope enshrined in law by the U.S. Supreme Court in its Sackett v. EPA decision, Kirkmeyer said.
“These waters are important to all of us,” the Brighton lawmaker said.
Wetlands, which are havens of biodiversity, offer priceless ecological benefits. As wetlands are lost to development nationwide, critics of the dam project worry about its local impact.
(Photo Credit: John Fielder via Writers on the Range)
The bill is supported by the Colorado Livestock Association, Weld County and the mining giant Freeport-McMoRan. Conservation Colorado and the Sierra Club, and liberal environmental nonprofits, oppose the measure.
Kirkmeyer said she proposed placing the program in the Department of Natural Resources, in part, because the Colorado Department of Public Health Environment’s Water Quality Control Division has been plagued with huge backlogs in processing permits in other programs it oversees.
Her proposal, however, may face an uphill battle in the Democratically controlled legislature. There are also questions about what the state’s new regulatory burden will mean in terms of cost.
A broad-based working group convened last year by the Colorado Department of Public Health and Environment is still analyzing options on how best to address the regulatory gap, and has been briefing lawmakers on possible options. Those options, however, would likely give the regulating job to the Colorado Department of Public Health and Environment and would likely seek to cover a broader class of streams and wetlands than Senate Bill 127 envisions, according to Alex Funk, a member of the working group who is also director of water resources and senior counsel at the Teddy Roosevelt Conservation Partnership.
Iron Fen. Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Funk said he wants to see a bill that is housed within the health department and which offers broader protection for uniquely Colorado waters, such as fens, a kind of high-altitude bog, as well as playa lakes, small shallow pools found on the high plains.
“There is a real opportunity (this session) for Colorado to provide some clarity once and for all with a program that is inclusive of all stakeholders,” Funk said.
“The federal program has been a tennis ball,” he said, referring to the program’s long history of lawsuits over shifting definitions of what constitutes protected wetlands and streams.
“Everyone has agreed that hasn’t worked well. But I think Colorado can get this right.”
A bill moving through the Colorado General Assembly would require local jurisdictions to amend their landscaping codes to eliminate use of thirsty species of grasses from alongside roads such as this streetscape in Arvada. CREDIT: ALLEN BEST/BIG PIVOTS
Click the link to read the article on the Big Pivots website (Allen Best):
January 30, 2024
Minor pushback to proposed limits on new water-thirsty grasses in areas that get little or no foot traffic
This story was produced as a collaboration between Big Pivots and Aspen Journalism — two nonprofit news organizations covering Colorado’s water. It follows a five-part series that examined the intersection of water and urban landscapes in Colorado.
Colorado legislators in 2022 passed a bill that delivered $2 million to programs across the state for removal of turf in urban areas classified as nonfunctional. By that, legislators mean Kentucky bluegrass and other thirsty-grass species that were meant to be seen but rarely, if ever, otherwise used.
Now, they are taking the next step. The Colorado Senate on Tuesday voted in favor of a bill, Senate Bill 24-005, that would prevent thirsty turf species from being planted in certain places that rarely, if ever, get foot traffic, except perhaps to be mowed.
Those places include alongside roads and streets or in medians, as well as in the expansive areas surrounding offices or other commercial buildings, in front of government buildings, and in entryways and common areas managed by homeowners associations.
The bill also bars use of plastic turf in lieu of organic vegetation for landscaping.
“If we don’t have to start watering that turf in the first place, we never have to replace it in the future,” state Sen. Dylan Roberts, D-Frisco, a co-sponsor, said in making the case for the proposed new state standard.
Roberts stressed that the prohibition would not apply to individual homes or retroactively to established turf. “It applies to new development or redevelopment. It does not apply to residential homes,” he said. “This is about industrial, commercial and government property across the state.”
Kentucky bluegrass and other grass species imported from wetter climatic zones typically use far more water than buffalo grass and other species indigenous to Colorado’s more arid climate. The bill, however, does allow hybrids that use less water as well as the indigenous grass species.
Originally reviewed by an interim legislative committee in October, the bill was subsequently modified to provide greater clarity about what constitutes functional versus nonfunctional turf, while giving towns, cities and counties greater flexibility in deciding which is which within their jurisdictions. If the bill becomes law, local jurisdictions will have until Jan. 1, 2026, to incorporate the new statewide standard into their landscaping code and development review processes.
After being approved on a third reading by the Senate by a 28-5 vote on Wednesday morning, the measure now moves to the House.
Advocates do not argue that limits on expansion of what the bill calls nonfunctional turf will solve Colorado’s water problems. Municipalities use only 7% of the state’s water, and outdoor use constitutes roughly half of municipal use.
“One more tool in the toolbox,” Roberts said.
State Sen. Cleave Simpson, R-Alamosa, said if the standard had been adopted 20 to 30 years ago, perhaps 10,000 acre-feet of water could have been saved annually.
“As a percentage, it is minimal,” he conceded. “It’s closing the gaps in small increments as best you can as opposed to large sweeping change.”
The backdrop for this is more frequent drought and rising temperatures since 2002, what Simpson called the aridification of the West. The climatic shift is forcing harder choices.
“We are all trying to figure out how to live and work in this space,” Simpson said.
In a Senate Agriculture and Natural Resources Committee meeting Jan. 25, Simpson also said he was motivated to help prevent water grabs by Front Range cities from the San Luis Valley, what locals sometimes call Colorado’s south slope. Three separate attempts have been made in the past 35 years to divert water from the San Luis Valley, a place already being forced to trim irrigated agriculture to meet requirements of the Rio Grande Compact.
“That’s largely my motivation to be part of this conversation and do everything I can to reduce that pressure on my rural constituents and our way of life,” Simpson said in the committee hearing. The bill passed the committee on a 4-1 vote.
Developing water for growing cities — particularly along the Front Range but even in headwaters communities — has become problematic as the climate has veered hotter and, in most years of the 21st century, drier.
The result, as was detailed in a five-part collaboration in 2023 between Big Pivots and Aspen Journalism, has been a growing consensus about the need to be more strategic and sparing about use of water in urban landscapes.
Agriculture uses nearly 90% of the state’s water, as was noted by state Sen. Chris Hansen, D-Denver. At Tuesday’s Senate hearing, he chided Roberts, Simpson and other legislative sponsors for not addressing efficiency in agriculture.
Hansen, who grew up in a farm town in Kansas near the Colorado border, applauded the bill but questioned why the interim committee hadn’t come up with legislation to improve efficiency of agricultural water use. He cited the use-it-or-lose-it provision of Colorado water law that he suggested discouraged farmers and ranchers from innovating to conserve water.
“I feel the interim water committee let us down by not bringing forth anything that advances conservation on what is by far the largest category of use, almost 90%,” he said. “I want to know what is next on that front.”
The San Luis Valley is one of several areas of Colorado where irrigated agriculture must be curbed in order to meet interstate river compacts. Top: Grassy areas along a street in Arvada. Photos/Allen Best
Hansen got strong pushback. Simpson responded that agriculture in the San Luis Valley has already been forced to change. To comply with the Rio Grande Compact, his district is trying to figure out how to take 10,000 to 20,000 acres out of agricultural production. On his own farm, he said, water deliveries that traditionally lasted until mid-July have ended as early as May 20. “I have to figure out a way to grow crops that are less water-consumptive, more efficient and ultimately take irrigated acreage out of production,” Simpson said.
State Sen. Byron Pelton, R-Sterling, also took the occasion to cite incremental gains in irrigation efficiency and the loss of production in the Republican River basin. There, roughly 25,000 acres need to be taken out of production for Colorado to meet interstate compact requirements.
As had been the case several days before at the bill’s legislative committee hearing, most of the limited opposition in the Senate was against the notion that cutting water used for landscaping is a statewide concern. It’s a familiar argument — a preference for local control — used in many contexts.
A representative of the Colorado Municipal League (CML), a consortium of 270 towns and cities, told the Senate committee that the proposal constituted state overreach in a one-size-fits-all approach.
Heather Stauffer, CML’s legislative advocacy manager, cited the regulations of Aurora, Greeley and Aspen as examples of approaches created to meet specific and local needs. “We would advocate that the state put more money into funds that address turf removal programs that have been very successful among municipalities across the state,” Stauffer said.
In 2023, Boulder-based Resource Central completed 604 lawn-replacement projects along the Front Range. With aid of state funding, it plans to expand its turf-removal and popular Garden In A Box programs to the Western Slope this year.
No representatives from any towns or cities showed up to oppose the bill. But representatives of three local jurisdictions, including Vail-based Eagle River Water and Sanitation District and the water provider for unincorporated Pueblo West, testified that the bill filled a need.
Denver is behind the bill. Denver Water, which provides water to 1.6 million people, including the city’s 720,000 residents as well as many suburban jurisdictions, has committed to reducing the water devoted to urban turf in coming years by 30%, or roughly the turf covering 6,000 acres. Utility representatives have said they don’t want to become frugal with water devoted to existing landscapes only to see water used lavishly in new development.
Andrew Hill, government affairs manager for Denver Water, called the bill a “moderate approach” in creating a new waterwise landscaping standard, one in which imported grasses are not the default.
“It makes real changes statewide, but it’s narrow enough to only apply to areas [where] I think a consensus exists,” Hill said at the committee hearing.
Sod last autumn was removed from this library in Lafayette. Many local jurisdictions in Colorado have participated in sod-removal programs. Photo/Allen Best
Local governments can go further, and many have already. Thirty-eight local governments and water providers in Colorado offer turf-replacement programs. Western Resource Advocates found last fall that 17 of the jurisdictions already limit new turf while another nine plan to do so.
Aurora and Castle Rock, late-blooming municipalities in the metropolitan area, have adopted among the most muscular regulations in Colorado, taking aim at water devoted to new homes’ front yards. Both expect to continue growing in population, and together they plan to pursue importations of water currently used for farming along the South Platte River in northeastern Colorado. Aurora also still owns water rights in the Eagle River basin that it has been trying to develop for the past 40 years.
In the full Senate debate, Republican leaders argued for incentives, such as the expanded buy-back program for turf removal, instead of a statewide thou-shalt-not approach.
The Colorado River Drought Task Force recommended legislators allocate $5 million annually for turf-removal programs. Key legislators have already indicated they plan to introduce legislation to do just that.
But is this the answer? Such programs are “inefficient and not cost-effective” if water-thirsty grass species continue to be planted in questionable places, the policy manager for municipal conservation at Western Resource Advocates said in the committee hearing last week.
The policy manager, Lindsay Rogers, said passing the bill would build the momentum to “help ensure that Coloradans live within our water means and particularly in the context of a growing state and worsening drought conditions.”
The Associated Landscape Contractors of Colorado, which represents 400 Colorado landscape and supplier companies, testified in support of the bill but hinted at future discussions as the bill goes through legislative sausage-making. Along with sod growers, they quibble over the dichotomous phrasing of nonfunctional versus functional turf. They prefer the words recreational and utility.
On the flip side of these changes, some home gardeners might find buffalo grass and other indigenous grasses more conserving of water but less appealing. Buffalo grass, for example, greens up a month or so later in spring and browns up a month earlier in fall.
Water in urban landscapes is also on the agenda for three programs this week at the annual meeting of the Colorado Water Congress, the state’s preeminent organization for water providers. Included may be a report from a task force appointed by Gov. Jared Polis last February that met repeatedly through 2023 to talk about ways to reduce expansion of water to urban landscapes.
Wide green median in Erie. Photo credit: Allen Best/Big Pivots
Click the link to read the article on the Big Pivots website (Allen Best):
January 30, 2024
Relatively minor pushback in Colorado Senate to proposed limits to new water-thirsty grasses in urban areas that get little or no foot traffic
Colorado legislators in 2022 passed a bill that delivered $2 million for programs across the state for removal of thirsty turf classified as non-functional, meaning that the grass is mainly ornamental, to be seen but not otherwise used.
This morning [January 30, 2024] the Colorado Senate will review a bill that, if approved, will extend the concept.
“This bill is about not putting (in) that non-functional turf in the first place,” explained Sen. Dylan Roberts, D-Frisco, in introducing SB24-005 to the Senate Agriculture and Water Committee last Thursday. “If you don’t put it in the first place, you don’t have to replace it.”
The committee approved the bill, titled “Prohibit Landscaping Practices for Water Conservation,” in a 4-1 vote.
The Colorado Municipal League registered opposition, but tellingly, no representatives of towns or cities showed up to argue against the bill. Instead, support was expressed by representatives of several local jurisdictions, including the Eagle River Water and Sanitation District, the second largest water provider on the Western Slope, as well as the special district that provides water for Pueblo West.
The bill takes aim at Kentucky bluegrass and other species imported from wetter climatic zones that are planted along streets and in medians, amid parking lots, in front of government buildings as well as the expanses you often see around office parks and many business and industrial areas. The imported species can use far more water than buffalo grass and other species indigenous to Colorado’s more arid climate.
Residential property is unaffected. Worried about a public backlash, legislators amended the bill to make that exemption doubly clear.
The bill also bars use of plastic turf in lieu of organic vegetation for landscaping.
Originally reviewed by an interim legislative committee in October, the bill was subsequently modified based on input of stakeholders. Functional and non-functional turf were clarified. The bill was also modified to give cities and counties flexibility to determine areas of “community, civic and recreational” turf grasses, in effect letting them decide what is functional in some instances. The revised bill language also made it clear that installing native species of grass or those hybridized species that use less water would be OK. The revised bill also give municipalities and counties until Jan. 1, 2026, to review and revise their landscaping code and development review processes.
Part of the impetus to reduce water devoted to urban landscapes is a desire to protect water for agriculture in the San Luis Valley and other farm areas of Colorado. Photo/Allen Best
Sen. Cleave Simpson, R-Alamosa, a co-sponsor, called the bill a “natural extension” of the turf-buy-back bill from 2022. He said he was surprised at the reaction in Alamosa to that funding. The water district he manages began getting inquiries about how to participate. “It kind of inspired me that there’s more room for improvement here in this space,” he told committee members.
Simpson also said he was motivated to help prevent water grabs by Front Range cities from the San Luis Valley, what locals sometimes call Colorado’s South Slope. Three separate attempts have been made in the last 35 years to divert water from the San Luis Valley, a place already being forced to trim irrigated agriculture as necessary to meet requirements of the Rio Grande Compact.
“That’s largely my motivation to be part of this conversation and doing everything we can to reduce that pressure on my rural constituents and our way of life,” said Simpson.
Nobody argues that the limits on expansion of what the bill calls non-functional turf will solve Colorado’s water problems. Municipalities use only 7% of the state’s water, and outdoor use constitutes roughly half of municipal use. Agriculture uses nearly 90% of the state’s water.
But developing water for growing cities, particularly along the Front Range but even in the headwaters’ communities, has become problematic as the climate has veered hotter and, in most years of the 21stcentury, drier.
The result, as was detailed in a five-part collaboration during 2023 between Big Pivots and Aspen Journalism, has been a growing consensus about the need to be more strategic and sparing about use of water in urban landscapes.
Disagreements remain about whether the state should create a state-wide standard, as is proposed in this legislation, or whether local governments should figure out their own solutions.
It’s a familiar arguing point in Colorado, but rarely are the divisions neat and simple. That’s also true in this case. Colorado Springs, the state’s second largest city, has a robust program for urban landscape transformation but was hesitant about the bill’s approach, wanting to ensure local flexibility.
Denver is fully behind the bill. Denver Water, which provides water to 1.6 million people, including the city’s 720,000 residents as well as many suburban jurisdictions, has committed to reducing the water devoted to urban turf in coming years by 30%, or roughly 6,000 acres. It says it doesn’t want to become parsimonious with its water only to see water used lavishly in new settlements.
Andrew Hill, the government affairs manager for Denver Water, called the bill a “moderate approach” in creating a new waterwise landscaping standard, one in which imported grasses are not the default.
“It makes real changes statewide, but it’s narrow enough to only apply to areas (where) I think a consensus exists,” said Hill at the committee hearing.
Local governments can go further, and many have already. Colorado has 38 turf replacement programs, and Western Resource Advocates found last fall that 17 of the jurisdictions already limit new turf and another 9 plan to do so.
Aurora and Castle Rock, late-blooming municipalities in the metropolitan areas, have adopted among the most muscular regulations in Colorado, even taking aim at water devoted to front yards. Both expect to continue growing in population, and together they plan to pursue importations of water currently used for farming along the South Platte River in northeastern Colorado. Aurora also still owns water rights in the Eagle River that it has been trying to develop for the last 40 years.
The Colorado Municipal League, a consortium of 270 towns and cities, insists that the proposal represents state overreach of one-size-fits-all policies for local landscapes. Heather Stauffer, CML’s legislative advocacy manager, cited the regulations of Aurora, Greeley, and Aspen as examples of approaches created to meet specific and local needs.
“We would advocate that the state put more money into funds that address turf removal programs that have been very successful among municipalities across the state,” Stauffer said. In 2023, Boulder-based Resource Central completed 604 lawn-replacement projects along the Front Range. With aid of state funding, it plans to expand its turf-removal and popular Garden In A Box programs to the Western Slope this year.
The Colorado River Drought Task Force recommended legislators allocate $5 million annually for turf removal programs. Some legislators have indicated they plan to introduce legislation to do just that.
Removal of turf, such as at this library in Lafayette, has become more common in Colorado. Photo/Allen Best
Witnesses at the committee hearing repeatedly echoed what Roberts said in introducing the bill. Paying for turf removal is “inefficient and not cost-effective” if water-thirsty grass species continue to be planted in questionable places said Lindsay Rogers, policy manager for municipal conservation at Western Resource Advocates, which helped shape the bill.
Rogers said passing the bill would build the momentum to “help ensure that Coloradans live within our water means and particularly in the context of a growing state and worsening drought conditions.”
The Associated Landscape Contractors of Colorado, which represents 400 Colorado landscape and supplier companies, testified in support of the bill but hinted at future discussions as the bill goes through legislative sausage-making. Along with sod growers, they quibble over the dichotomous phrasing of “non-functional vs functional turf. They prefer the words recreational and utility.
On the flip side of these changes, some home gardeners might well find buffalo and other indigenous grasses, if more conserving of water, less appealing. Buffalo grass, for example, greens up a month or so later in spring and browns up a month earlier in autumn.
Water in urban landscapes is also on the agenda for three programs this week at the annual meeting of the Colorado Water Congress, the state’s preeminent organization for water providers. Included may be a report from a task force appointed by Gov. Jared Polis last February that met repeatedly through 2023 to talk about ways to reduce expansion of water to urban landscapes.
The vegetation in this beaver wetland rebounded vigorously after the Cameron Peak Fire. Photo: Evan Barrientos/Audubon Rockies
Click the link to read the article on The Denver Post website (Elise Schmelzer). Here’s an excerpt:
When the Cameron Peak wildfire ripped across northern Colorado in 2020, it left hundreds of thousands of acres charred and dusty — except for a series of beaver ponds tucked inside Poudre Canyon. The wetlands survived the state’s largest recorded wildfire and acted as a buffer as the flames raged through the canyon. And after the flames were extinguished, they served as a sponge to absorb floodwaters sped by the lack of vegetation, minimizing flood damage downstream. But a U.S. Supreme Court decision last year left wetlands like the ones in Poudre Canyon — as well as thousands of miles of seasonal streams critical to the state’s water system — without protection under federal law. The court’s majority limited the coverage of the Clean Water Act, leaving protection gaps for more than half of Colorado’s waters that lawmakers, conservationists, developers and state water quality officials are rushing to fill…Colorado, like many states, relied on the federal government’s permitting process to regulate when people could dig up waterways or wetlands and fill them in — activities known as dredging and filling. Although Colorado has its own Water Quality Control Act that makes it illegal to pollute waters, there is now no process to vet proposed dredge and fill projects, or to issue permits allowing those projects to legally proceed…
Colorado House Speaker Julie McCluskie is crafting a bill this legislative session to give the CDPHE the authority to fill that gap. But key questions remain about how far lawmakers and state officials are willing to go in replacing federal protections…
In May, the high court’s justices ruled 5-4 that wetlands not connected on the surface to another body of federally protected water do not qualify for protection themselves under the Clean Water Act. The law also doesn’t protect wetlands connected to rivers or lakes via groundwater below the surface, the court found, and it doesn’t protect streams that flow seasonally or only after precipitation falls. The ruling left the protection of the newly exempt waters to the states, many of which do not have robust water protection laws…
Ephemeral streams are streams that do not always flow. They are above the groundwater reservoir and appear after precipitation in the area. Via Socratic.org
The Department of Public Health and Environment in July enacted an emergency rule to provide some oversight over dredge and fill activities in waters that lost federal protection…The state policy states that the department will not punish people who dredge or fill in waters if the person notifies the CDPHE, the impacted area is small and the activities comply broadly with the federal law that existed before the Supreme Court decision. The goal, said Nicole Rowan, director of CDPHE’s Water Quality Control Division, is to give developers and others a way to proceed with projects without fearing legal trouble because of ambiguity in the law.
A new year brings a new opportunity for Colorado decision-makers to shore up water resource vulnerabilities and accelerate resilience and stewardship practices. Policy is born by addressing a solution to a problem. Impacts of climate change and unsustainable water demand bring uncertainty to Colorado’s birds, communities, watersheds, and waterways. Resilience and stewardship are top themes for 2024 legislation on water, our most valuable natural resource. Audubon Rockies is busy working with lawmakers, agencies, and partners to prioritize healthy, functioning, and resilient watersheds and river systems for people and birds—the natural systems that we all depend upon.
Below are the two top water priorities for Audubon in the 2024 Colorado legislative session. Please make sure you’re signed up to hear about opportunities to engage with them.
Healthy mountain meadows and wetlands are characteristic of healthy headwater systems and provide a variety of ecosystem services, or benefits that humans, wildlife, rivers and surrounding ecosystems rely on. The complex of wetlands and connected floodplains found in intact headwater systems can slow runoff and attenuate flood flows, creating better downstream conditions, trapping sediment to improve downstream water quality, and allowing groundwater recharge. These systems can also serve as a fire break and refuge during wildfire, can sequester carbon in the floodplain, and provide essential habitat for wildlife. Graphic by Restoration Design Group, courtesy of American Rivers
1. Clean Water Stewardship for Colorado
Speaker of the House McCluskie mentioned the need to restore protections removed from the Sackett vs. Environmental Protection Agency decision in her opening 2024 legislative session remarks:
“Water is intrinsic to the Colorado Spirit, and the lifeblood of our agriculture industry and tourism economies. The recent United States Supreme Court decision about the definition of Waters of the United States leaves many of our waterways in Colorado unprotected. In the wake of this difficult decision, we have an opportunity to take action to reestablish these critical protections.”
It is imperative to protect our waterways for all of Colorado to thrive. The United States passed the Clean Water Act (CWA) in 1972 for water quality and related public health protections, realizing the outsized importance of our rivers, streams, and wetlands to communities and wildlife. At the time when waterways were literally burning with industrial waste, Congress recognized the threat to public health and addressed the widespread problem with bipartisan support and passage of the CWA. The CWA aimed to restore and maintain the chemical, physical, and biological integrity of the nation’s waters and took a watershed approach due to the connectivity of waters from headwaters to lowlands. The CWA protects waterways and their many benefits by requiring certain activities such as the construction of highways to minimize or mitigate their impact.
Despite the CWA’s successes over the last 50 years, there has been a lot of litigation and legal interpretations over the years. Most recently, the United States Supreme Court, through the Sackett case decision, effectively rewrote the CWA by severely narrowing the scope of its protections. Before Sackett, the CWA provided for the protection of the majority of Colorado’s wetlands and streams at the federal level.
So what is the void created by the Sackett decision for Coloradospecifically? In Colorado, we no longer have a federal partner to help protect our waterways. The decision upended a regulatory system that protected water quality for public health. Wetlands and streams are crucial ecosystems, particularly in Colorado, where we are semi-arid to arid. Before Sackett, the CWA would have protected all Colorado waters with a significant affect on downstream water quality and availability. After the Supreme Court decision, protections were sharply reduced.
Here are some examples of waterways that now have reduced or no federal protections in Colorado:
These wetlands, located on a 150-acre parcel in the Homestake Creek valley that Homestake Partners bought in 2018, would be inundated if Whitney Reservoir is constructed. The Forest Service received more than 500 comments, the majority in opposition to, test drilling associated with the project and the reservoir project itself. Photo credit: Heather Sackett/Aspen Journalism
Wetlands that are not adjacent to a flowing river
Playa lakes, which are groundwater-dependent,
Iron Fen. Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Fens, (a type of peat-accumulating wetland fed by mineral-rich ground or surface water)
Colorado River headwaters tributary in Rocky Mountain National Park photo via Greg Hobbs.
Headwater streams that flow only after precipitation events
In Colorado, 26 percent of streams only flow in response to rainfall, and 59 percent flow seasonally. By some estimates, as much as two thirds of Colorado’s waterways have lost protections.* Nationwide, approximately 63 percent of all wetlands are now unprotected.
With the loss of 3 billion birds in the past 50 years—in part due to dwindling wetlands and significant development of natural spaces—and Audubon science showing that two-thirds of North American bird species are at risk of extinction from climate change, action is needed at the state and federal levels to protect the water bodies and habitat that birds need to survive. Protecting water quality is a bipartisan stewardship issue and brings broad public support. We look forward to working with the state as it creates a wetlands and streams protection program for water quality protection that works for Colorado’s unique waterways. If Colorado does this right, it could be a model for other semi-arid Western states to follow suit.
Colorado snowpack basin-filled map April 16, 2023 via the NRCS.
2. Resilient tools to deal with long-term uncertainty in the Colorado River
Despite near-term optimism (and a momentary sigh of relief) from a heavy 2023 snowpack and recent January storms, climate change and unprecedented drought conditions in the Colorado River Basin for the last 24 years are threatening Colorado’s ability to satisfy water users, ecosystem needs, water-related recreation, and, potentially, interstate obligations. There are real consequences for people, birds, and every other living thing that depends on rivers in this region.
In 2023, the Colorado General Assembly determined that it is in the best interest of Colorado to form a task force to provide recommendations for programs to assist Colorado in addressing drought in the Colorado River Basin and the state’s interstate commitments related to the Colorado River and its tributaries (SB-295, Section 1). From August through December 2023, the Colorado River Drought Task Force and a sub-task force on Tribal matters, met to draft a report on recommendations for further actions. You can learn more about the recommendations here.
As Colorado contends with near-certainty of continued warming, severe drought, and declining river flows over the next several years, we need more flexible ways to manage and deliver water to support the Colorado River we love. Colorado needs tools and resources to proactively respond to drought conditions and maximize the benefits to the state, its water users, and river ecosystems from once-in-a-generation competitive federal funds available to address the Colorado River Basin drought. Audubon will be engaging this session for solutions that will provide new and innovative solutions to the water threats we face.
*The State is waiting for additional guidance from the United States Environmental Protection Agency and Army Corps of Engineers to determine exactly how many of Colorado waters may lose protection.
Colorado lawmakers will be asked to weigh in on more than a half-dozen proposed water bills this year that will likely include support for improving the water quality in Grand Lake, significant new funding for replacing thirsty lawns, a pilot program to test using natural systems — such as plants and soils, rather than water treatment plants, to clean up water — and new state-level protection for wetlands.
A resolution asking lawmakers to support work to improve the clarity of water in Grand Lake, under consideration for months, is receiving broad-based support from powerful water interests, including Northern Water, said Mike Cassio, president of Grand Lake’s Three Lakes Watershed Association. Cassio is among a group of advocates who have been trying to improve the lake’s once-clear waters for decades.
“Nothing official until it makes it to the floor, and it is passed. However, we are further than ever,” Cassio said.
Forget bluegrass lawns
Ambitious plans are also on the table to boost to $5 million the amount of money the state is putting into an existing turf replacement program. Gov. Jared Polis as well as members of a special Colorado River Drought Task Force have asked that the program be expanded. It was approved by lawmakers in 2022 and given $2 million in funding.
“I would love to see the project continue,” said state Sen. Cleave Simpson, a Republican from Alamosa, “and $5 million seems appropriate,” at least initially.
Simpson, who is general manager of the Rio Grande Water Conservation District, is a sponsor of a bill that would provide at least $1 million to launch a pilot program testing so-called “green” infrastructure, a term that refers to using such things as plants, wetlands and soils to clean up water, helping offset the use of more expensive tools, such as water treatment plants.
That’s only part of what could be another record-breaking year for funding Colorado water projects, according to Sen. Dylan Roberts, a Democrat from Frisco.
Last year, lawmakers approved $92 million in water funding, Roberts said, money that helps pay for water conservation, planning, dams and irrigation projects, and new technology, among other things.
“Last year’s projects bill (the legislative tool through which funding is approved) was the largest amount of funding on record,” he said. “I am hopeful we can break that record this year.”
Roberts said he also hopes to introduce legislation expanding the amount of water available to protect streams and to add more protection for farmers and ranchers who agree to place their water into conservation programs benefiting the Colorado River and potentially other waterways.
Replacing federal wetland protections
Another major initiative likely to surface is a plan to create a state-level program to protect streams and wetlands affected by road-building and construction. Last year, the U.S. Supreme Court, in its Sackett v. EPA decision, drastically narrowed the definition of what constitutes a protected stream or wetland under rules known as waters of the United States. The decision left vast swaths of streams and wetlands in the American West and elsewhere unprotected.
Colorado is among a handful of states seeking to set up its own program to ensure its streams and wetlands are safe even without federal oversight. Last year, the Colorado Department of Public Health and Environment (CDPHE) took temporary, emergency action to protect streams, but state lawmakers must approve any new, permanent program.
The CDPHE has been working with a large group of people on the issue, including farm and water interests, environmentalists, and construction and development firms. But what the new program might contain and how it will fare in the legislature is not clear.
“I think there is a lot of desire to get something like this done,” said John Kolanz, a Loveland-based attorney and water quality expert who represents construction interests. “The Sackett opinion really changed things. Some people estimate that it has reduced coverage of streams by 50% or more.”
As a result, Kolanz said, “The new state program is going to have to be quite large and it will have significant land-use implications. We’ve got to get it right on the front end.”
Fresh Water News was launched in 2018 as an independent, nonpartisan news initiative of Water Education Colorado. Our editorial policy and donor list can be viewed at wateredco.org.
More by Jerd SmithJerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
Also on the agenda for Will, Velasco, and other Western Colorado lawmakers is water issues. Earlier this month, the lawmakers both attended the announcement of the Colorado River District’s purchase of the Shoshone water right at the Hotel Colorado in Glenwood Springs…
“Purchase of the Shoshone water rights keeps water in the river. That’s good for fish, that’s good for recreation, that’s good for agriculture, that’s good for West Slope Colorado,” Will said.
The River District will pay nearly $100 million for the water right, and is fundraising now to be able to complete the purchase. Velasco and Will were both confident the assembly would be able to help with the funding to see the deal to the finish line.
A proposed state law would take aim at thirsty turf varieties planted along streets and roads in new developments. This housing project, Leyden Rock in Arvada, has less space devoted to front-yard turf than many older subdivisions. CREDIT: ALLEN BEST/BIG PIVOTS
The deepening troubles of the Colorado River, a significant source of water for most of Colorado’s 5.9 million residents, has implications for the types of grasses we grow in our yards and in street medians.
Speaking in Las Vegas recently, former Arizona Gov. and former U.S. Interior Secretary Bruce Babbitt recalled warnings of worsening drought and imbalances between supplies and demand. “There’s going to be a day of reckoning,” Babbitt, 85, told Politico’s E&E News, referring to the warnings of scientists during past decades. “Here we are. The crisis has arrived.”
Colorado’s mounting efforts to limit new expanses of thirsty turf won’t solve the Colorado River problems. Colorado is just one of seven states in the basin. And even within Colorado, agriculture consumes roughly 90% of Colorado’s water and cities about 7%. Exterior use, such as for watering thirsty Kentucky bluegrass yards, consumes 40% to 60% of municipal water.
But if this water use is on the margins, it’s one that many water managers believe must be addressed. A bill that originated in the Water Resources and Agriculture Review Committee in October has the support of two of the state’s largest cities and has sponsors from both political parties from across Colorado.
This proposal would preclude the installation of nonfunctional turf as well as artificial turf in commercial, institutional or industrial properties or in transportation corridors, such as along streets or in road medians. Nonfunctional turf is defined as grasses that are predominantly ornamental — and that few will ever walk on unless to mow, yet still require heavy watering. Think, for example, of those giant carpets of green grass that commonly surround business parks such as the Denver Tech Center or Broomfield’s Inverness business park.
The bill, however, does not address residential water use.
Many urban landscapes in Colorado are planted in Kentucky bluegrass and other thirsty species that require close to double what the semiarid climate delivers. Native grasses such as blue gramma and even some imported species can survive with far less or even no supplemental water.
Continued population growth also adds pressure to city water utilities. The Colorado Water Plan projects growth of the state’s current population to at least 7.7 million by 2050, mostly along the Front Range.
Legislators have been advised by the state’s Colorado River Drought Task Force to bump funding to $5 million per year for turf removal. In 2022, they allocated $2 million, which has now been exhausted in grants to local jurisdictions.
Also informing Colorado’s path forward will be recommendations from another task force, appointed by Gov. Jared Polis last January, to investigate opportunities for an accelerated transformation in use of water in urban landscapes. The 21 committee members were drawn from the ranks of local governments, academia, environmental advocacy groups and developers.
At their eight meetings, committee members wrestled with what should be the proper mix of incentives and mandates and ultimately just how far the state should push into matters of local land use. One member suggested that banning new turf in road medians was a no-brainer. Another member urged flexibility for local jurisdictions to achieve state goals. “We’re going to be on this journey for a long time,” said Catherine Moravec of Colorado Springs Utilities. “Less controversy will help keep us together.”
In final meetings, now concluded, members agreed on the need to support state legislation. The Colorado Water Conservation Board, which oversaw the process, emphasizes that the task force’s report will have no direct connection to legislation. The task force’s pending report “may be used by decision-makers at state, local or even neighborhood scales,” said Jenna Battson, the agency’s outdoor water conservation coordinator. “It’s a resource.” The task force recommendations are expected to be released in late January after review – and perhaps tweaking – by Polis.
Northern Water maintains a demonstration garden at its headquarters in Berthoud that illustrates various landscaping alternatives.
CREDIT: ALLEN BEST/BIG PIVOTS
Changing the status quo
Water scarcity underlies all these discussions. Specific circumstances vary. Some jurisdictions, most notably those between Denver and Colorado Springs, depend upon receding underground aquifers for most of their water. They get very little or no Colorado River water.
Most other jurisdictions do rely upon the Colorado River. Ambiguity has long dogged the Colorado River Compact, the agreement reached by delegates from the seven basin states in 1922. What if runoff declined substantially? The river since 2000 has delivered an average 12.3 million acre-feet per year, far short of the 20 million acre-feet that delegates had assumed.
Must Colorado and the three other upper-basin states — New Mexico, Utah and Wyoming — leave more water to flow downstream if runoff declines even more? That would cause curtailment of diversions with water rights after 1922. A study commissioned by the Glenwood Springs-based Colorado River Water Conservation District found that 96% of Front Range water use could be subject to curtailment.
That includes diversions by Denver Water. “It is possible that Denver Water’s deliveries of Colorado River basin supplies could be curtailed for a period of time,” advised a statement from Denver Water issued in August 2022 when the utility was issuing new water bonds.
That statement was issued the same month that Denver Water and 30 other utilities from Colorado to California that rely upon Colorado River Basin water committed to removing urban turf, with a goal of 75 million square feet in the case of Denver Water. That’s an area roughly equivalent in size to 1,800 football fields. At the current rate, that will be achieved in 100 years, according to Denver Water.
Even so, that was a sharp reversal for Denver Water, a utility that delivers water to 1.5 million people in Denver and 17 other municipalities in the metro area. Even after severe drought 20 years before, Denver made no move to remove turf. If drought got bad enough, the agency reasoned, it could ask customers to stop watering their yards. The utility now plans a pilot program in 2024 in conjunction with Resource Central to cost-share lawn removal with customers.
Greg Fisher, Denver Water’s manager of demand planning and efficiency, told legislators in October that spending money to help remove turf makes no sense if thirsty nonnative turf species are simultaneously being planted elsewhere.
“Ultimately, success for us is changing the status quo, creating a new cultural landscape that will benefit Colorado’s environment and save water at the same time,” he said. Fisher cited the ancillary benefit of providing habitat for pollinators, which is not provided by imported grasses. Denver supports the bill.
The proposed state law up for consideration in the 2024 session would also preclude artificial turf in lieu of grass. The bill says artificial turf releases harmful chemicals into watersheds and exacerbates the heat island effect compounded by rising temperatures in coming decades.
Colorado is famously a local-control state. Its towns and cities, many of them operating under home-rule charters, jealously guard local prerogatives. They, not the state, decide the speed limits on their streets and don’t like the state telling them what to do, particularly in land use. Always, there is tension.
But in water, the state has already adopted efficiency requirements. Any toilet sold in Colorado must consume no more than 1.2 gallons per flush. Colorado law also requires the most efficient pop-up sprinklers.
Should state law also override local authority in deciding landscaping choices? If still a sensitive area, even cities normally inclined to tell legislators to butt out are now more inviting of state engagement or at least inclined to remain neutral.
“Aurora will typically be one of the communities that shows up and says don’t do anything at the state level that impedes our local control,” Marshall Brown, general manager of Aurora Water, told the legislative committee in October in support of the ban on planting new vegetation with high water needs. This proposal, he added, retains local control while providing strong guidance from the state.
Real estate developers in Aurora typically created lavish areas devoted to turf along streets, including this one, but a 2022 law dramatically reduced what is permitted in future developments.
CREDIT: ALLEN BEST/BIG PIVOTS
When Aurora changed its mind
For many years, Aurora tried voluntary programs for turf removal, in order to stretch its water. It made no sense if others then planted large amounts of grass. “We didn’t have success until we mandated a ban on nonfunctional turf,” Brown said.
In September 2022, Aurora City Council adopted a wide-ranging ordinance that is among the most aggressive in Colorado. It bans Kentucky bluegrass and other thirsty cool-weather grass in front yards of new residential developments. New golf courses are allowed, but not with thirsty grasses. They must have grasses that use less water. New ornamental water features, such as fountains, are also banned.
Several decades ago, Aurora had gained a reputation for lacking greenery due to the mostly treeless landscape of newer subdivisions.
“I would ask those people to go east of Aurora and see what they see,” said Tim York, water conservation manager for Aurora. “They won’t see turf and they won’t see very many trees. Although we aren’t against trees. We definitely need trees. Just be sure to put them in the right places.”
Aurora, now with a population of 400,000, for many decades believed it needed well-watered turf in its urban landscapes. Even in the late 1980s, the city water department had just one employee devoted to conservation.
“In retrospect, installing landscapes for aesthetic purposes that require over 2 feet of water per year was probably not the right way to do it,” said York.
US Drought Monitor June 25, 2002.
The 2002 drought forced a new reckoning. That hot, dry, windy year revealed the inadequacy of Aurora’s portfolio of water rights and storage, both for that intense drought but also in regard to projected population growth. The city’s utility manager warned of dire reductions if snow didn’t arrive. It did the next spring, on St. Patrick’s Day of 2003, but the episode revealed the city’s vulnerabilities.
Both reuse and conservation became an active part of the municipal agenda. Since then, per-capita water use has declined by 36%. The population during that time has grown by 30%. The city offered rebates to residents willing to replace their thirsty turf.
In 2022, though, the city recognized the fallacy of creating a bigger problem that would have to be addressed later.
York, a landscape architect by training with experience in Las Vegas, contends that pleasant urban landscapes can be created with lesser volumes of water. It just takes more thoughtfulness about the function.
“That function should not be that ‘It looks pretty’ and that is all that it does,” York said. “A water-wise landscape, done correctly with species variation, can be far more attractive than the monotonous green carpet turf found in most places.”
Aurora Mayor Mike Coffman said homeowners resisted the ban at first, as did some members of the City Council, who saw it as going too far. They were convinced by Coffman that taking action now may prevent more dramatic actions in the future if the Colorado River situation deteriorates further. Aurora gets 25% of its water from multiple sources in the Colorado River basin.
There were also arguments that water-wise landscaping is ugly.
“I don’t think it’s ugly,” Coffman said in an interview. “What is ugly is when homeowners, because of the cost of water, give up on their yards. That’s ugly. But anyway, it’s the new reality we live in, and people have to get used to it.”
Native grasses use far less water than Kentucky bluegrass and other imported species but can look bedraggled, as was evident in September at this site near the Colorado State University Spur Campus in Denver.
CREDIT: ALLEN BEST/BIG PIVOTS
Down the Colorado River
Nevada and California have adopted far more significant restrictions.
A century ago, when the Colorado River Compact was crafted, Las Vegas had a population of little more than 2,000. The compact allocated only 300,000 acre-feet to Nevada, compared with 4.4 million acre-feet for California.
By 1996, Las Vegas was becoming a metropolitan area, and lawns replicating those found in Midwestern towns were still being planted in an environment of soaring summer heat and only 4 inches of average precipitation. The Southern Nevada Water Authority began offering incentives for turf removal. That program has since then cost $285 million, according to a January 2023 report prepared for the Colorado Water Conservation Board.
In 2021, with the notion of an empty Lake Mead becoming an all-too-real possibility, Nevada banned all ornamental turf dependent upon Colorado River water. Ornamental in this case applies to grass used in street medians, entrances to developments and office parks — in general, places where people rarely set foot except to mow. This covers about 31% of all the grass in the Las Vegas area.
California also took a very aggressive step in 2023. The law, Assembly Bill 1572, prohibits using drinking water for purely decorative grass in medians and outside business and in common areas of homeowner association neighborhoods, the Los Angeles Times reported in September. The ban will take effect in phases between 2027 and 2031. It exempts sports fields, parks, cemeteries and residences.
Metropolitan Water, the agency that supplies wholesale water to most of Southern California, estimates that the bill will save 300,000 acre-feet. That’s equal to Nevada’s Colorado River allocation.
Sterling Ranch may be Colorado’s best example of judicious water use. The development of more than 3,000 houses lies in the southwest corner of metropolitan Denver. The developer set out to do better than 0.75 acre-feet annually per single-family residence, which is Douglas County’s requirement. It aimed for 0.4 acre-feet but has come in at 0.2 acre-feet. The developer expects an apartment complex will yield even less consumption, at 0.14 acre-feet per unit.
Andrea Cole, general manager of Dominion Water & Sanitation District, the water provider at Sterling Ranch, said “conservation” is not used in messaging “because it implies that it was yours to use and we are asking you to please use less.” At Sterling Ranch, she said, developers combined demand-management techniques — including higher rates for outdoor water use — with land-use planning to dial down water use.
Several Colorado jurisdictions have taken more-limited action in the past several years. In August, for example, Broomfield adopted a code limiting new turf grass to 30% of front and side yards of detached single-family homes and commercial properties. Turfgrass must primarily consist of low-water grasses. Both a city and a county, Broomfield has 77,000 people but with expectations of growing to 125,000 as land is developed.
In Edgewater, a municipality of moderately dense neighborhoods west of downtown Denver, redevelopment will be the primary target of regulations adopted in November. The regulations limit Kentucky and other cool-weather grasses to 25% of residential areas. It also has limitations in commercial and other areas similar to what is proposed in the proposed state law.
Paige Johnson, sustainability director for Edgewater, said the primary goals are saving water and creating and sustaining robust and diverse natural ecosystems.
In Castle Rock, areas surrounding a football field are planted with native grasses that use less water. Waterwise regulations typically exempt athletic fields, parks and other common and higher-use areas from prohibitions against imported grasses.
CREDIT: ALLEN BEST/BIG PIVOTS
And in Castle Rock
Castle Rock gets virtually no water from the Colorado River except for a tiny bit of reused water. It was a late bloomer among cities of metro Denver with fewer than 4,000 residents in 1980. The limited water from Plum Creek combined with wells drilled into aquifers of the underling Denver Basin were just fine.
It now has 80,000 residents but plans for 142,000 in decades ahead. In anticipation of that much larger population, it has been offering rebates of $1.50 per square foot for replacement of water-thirsty grasses with native species that use less water. Those who replace grass with concrete or artificial turf can get only $1. Both exacerbate heat-island effects of high temperatures and create more runoff problems during rains.
Castle Rock calls these less-thirsty yards “ColoradoScapes.” Such areas must have 75% vegetation to qualify.
In October 2022, after several years of outreach, Castle Rock adopted regulations that lifted the bar several notches higher. No thirsty grasses can be planted in front yards. Backyards, where families tend to gather, can have a maximum of 500 square feet. Castle Rock also banned new ornamental turf — grass that no one actually walks on — in road medians and at entrances to housing projects.
Mark Marlowe, director of Castle Rock Water, emphasizes cost in justifying the restrictions. Building water-treatment plants and distribution to meet peak demand during the hot days of summer bears a large price tag. Getting additional water from more distant places is also expensive.
Castle Rock residents today use 118 gallons per capita on average daily. “If we can get our community below 100 gallons per capita a day, we can save upward of $70 million in long-term water rights and infrastructure,” Marlowe said.
Similar to other Colorado cities, 50% of Castle Rock’s water was devoted to outdoor landscaping. That has declined to 42%. Marlowe projects it will continue to drop as Castle Rock Water has set a goal of removing 30% of the current non-functional grass turf in the municipality and replacing it with Coloradoscape by approximately 2050.
Limiting water devoted to outdoor landscaping helps Castle Rock in another way. Water applied to outdoor landscapes mostly disappears into the atmosphere, while about 90% of water used indoors gets treated. In many places in Colorado, this treated water is released into streams and rivers to satisfy those with water rights downstream.
Because it draws the water from the aquifers, Colorado water law allows Castle Rock to reuse that water repeatedly, to “extinction.” Overall, the city hopes to achieve 75% renewable water by midcentury, reserving use of the Denver Basin aquifers to droughts.
Denver has a very different situation. A century ago, when Castle Rock was a small ranch town of fewer than 500 residents, Denver already had 256,000 people. Envisioning a far larger city, civic leaders had laid plans for Colorado’s first major transmountain diversion to take water from the Fraser River via the Moffat Tunnel.
Now, the city is landlocked, able to grow upward but not outward. Water use has leveled off. The city has a strong water portfolio but wants to help residents learn how to use less water for landscaping.
“You don’t have to have wall-to-wall grass to have an inviting city,” said Denver Water’s Fisher. He cautioned against pointing fingers at those with cool-weather turf. “I do think we’re trying to slowly change how people approach their landscapes and make that connection back to water,” he said.
Only trees get watered at the Hugo Golf Club, located in Lincoln County in eastern Colorado. The fairways consist of buffalo grass, cactus and sand.
CREDIT: COURTESY PHOTO/LINCOLN COUNTY ECONOMIC DEVELOPMENT CORPORATION
A golf course without water hazards
In Colorado Springs, the state’s second-largest city, overall water demand has remained relatively flat since the mid-1980s. During that time, the city’s population has nearly doubled. Most of that 40% decline in per-capita water use has occurred since 2001. Other Front Range cities similarly report substantial declines of 35% to 40%.
Colorado Springs Utilities has championed the use of native grasses in urban landscaping but also paid careful attention to the efficiency of preinstalled irrigation systems as it plans for a population of 800,000 in coming decades. It’s now at 500,000.
The city also wants to help residents maintain their yards using water-wise techniques. Between 25% and 30% have stopped irrigating their yards. That neglect “has a significant, negative impact on our collective quality of life and economic vitality,” said Colorado Springs Utility in a statement. “Our work is to reach those customers as well.”
The changing climate also poses challenges. Julia Galluci, supervisor of water conservation for Colorado Springs, said the city expects to have water resources available for outdoor watering about one day a week by 2050. “We are trying to implement the kinds of landscapes that can survive in that kind of climate and environment,” she said.
Colorado Springs has been moving slowly, only this year moving into its messaging of the more general population. “It’s not a quick fix,” said Galluci.
Of course, if the Colorado River situation deteriorates rapidly, city and state policies may accelerate. After last winter’s strong snowpack, the big reservoirs— Mead and Powell — rebounded slightly after dropping to perilously low levels. In April 2022, railroad tracks on a ledge of the canyon wall that had been abandoned upon completion of the Glen Canyon Dam re-emerged after being underwater since soon after the dam was completed in 1966. Those artifacts are underwater again, but no one knows for how long.
As for new golf courses, they may look different in the future. Aurora’s recent commitment to restrictions was triggered by a golf course approved long before. The golf course has been granted authority to move ahead after agreeing to use a grass variety that will cause it to use 250 acre-feet annually instead of the 400 acre-feet that would be needed by more conventional grass.
Developers of the golf course will tap an aquifer with a projected 50-year supply. When that aquifer goes dry, they will not seek to use city water, Other golf course developers may also want to study new hybrid species of grass. A new type of Bermuda grass, for example, uses 50% to 75% less water.
Colorado has two golf courses that use no more water than comes from the sky. One is a nine-hole municipal course at Springfield, in southeast Colorado. The other lies 100 miles east of Aurora, near Hugo. The Hugo Golf Club falls under the heading of “pasture golf.” It has 300 trees that get watered, but the fairways where bison once grazed now consist of native buffalo grass, cactus and sagebrush. For greens, it has sand. Naturally, it has no water hazards.
Of course, if the Colorado River situation deteriorates rapidly, city and state policies may accelerate. After last winter’s strong snowpack, the big reservoirs— Mead and Powell — rebounded slightly after dropping to perilously low levels. In April 2022, railroad tracks on a ledge of the canyon wall that had been abandoned upon completion of the Glen Canyon Dam re-emerged after being underwater since soon after the dam was completed in 1966. Those artifacts are underwater again, but no one knows for how long.
As for new golf courses, they may look different in the future. Aurora’s recent commitment to restrictions was triggered by a golf course approved long before. The golf course has been granted authority to move ahead after agreeing to use a grass variety that will cause it to use 250 acre-feet annually instead of the 400 acre-feet that would be needed by more conventional grass.
Developers of the golf course will tap an aquifer with a projected 50-year supply. When that aquifer goes dry, they will not seek to use city water, Other golf course developers may also want to study new hybrid species of grass. A new type of Bermuda grass, for example, uses 50% to 75% less water.
Colorado has two golf courses that use no more water than comes from the sky. One is a nine-hole municipal course at Springfield, in southeast Colorado. The other lies 100 miles east of Aurora, near Hugo. The Hugo Golf Club falls under the heading of “pasture golf.” It has 300 trees that get watered, but the fairways where bison once grazed now consist of native buffalo grass, cactus and sagebrush. For greens, it has sand. Naturally, it has no water hazards.
A wetland area along Homestake Creek in Eagle County. A recent U.S. Supreme Court decision says only wetlands with a direct surface water connection to a stream or permanent body of water are now protected under the Clean Water Act. Photo credit: Brent Gardner-Smith/Aspen Journalism
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.
Colorado Rivers. Credit: Geology.com
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.”
These wetlands along Homestake Creek in Eagle County may no longer be protected under the Clean Water Act after the Supreme Court decision in Sackett v. EPA. Colorado will now have to decide how to protect the wetlands without a direct surface connection to a stream, which water policy experts are calling “gap waters.” Photo credit: Heather Sackett/Aspen Journalism
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.”
Photo credit from report “A Preliminary Evaluation of Seasonal Water Levels Necessary to Sustain Mount Emmons Fen: Grand Mesa, Uncompahgre and Gunnison National Forests,” David J. Cooper, Ph.D, December 2003.
Meredith Slater, S. Denver. Photo credit: Allen Best/Big Pivots
Click the link to read the article on the Big Pivots website (Allen Best):
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.
At Interlochen, a business park in Broomfield, an expanse of grass lies behind a fence at a corporate headquarters. Photo by Allen Best
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.
Centerra, a business and residential complex in Loveland, blends traditional and new landscaping in ways that lessen water requirements and heighten visual interest. Photo by Allen Best
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.”
Turf grown to be seen but rarely, if ever, used, can be found across Colorado, including along roads and parking lots surrounding a shopping complex in Broomfield. Photo/Allen Best
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.
Shifting attitudes
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.”
Gravel spread across lawns, such as this one in Denver, may seem like an easy replacement for turf, but landscape architects roll their eyes, as do others. Also, gravel yards contribute to the heat-island effect of urban areas. Photo by Allen Best
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.
After planting buffalo grass in their yard in Colorado Springs, Don and Jill Brown rarely need to mow it and give it little water. Once established, it outcompetes weeds. Photo by Allen Best
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
