A major ruling from the U.S. Supreme Court this year has put Colorado’s wetlands and streams at risk by removing some of the protections historically in place under the Clean Water Act.
The Sackett vs. EPA decision, settled in late May, narrowed down which wetlands and streams fall under the jurisdiction of “waters of the United States” or WOTUS — a federal rule that defines what bodies of water are protected from pollutants under the Clean Water Act. This created “gap waters” that are no longer protected. Since the settlement, Colorado water quality officials have rushed to provide temporary solutions for these wetlands while a more permanent program is created.
The Sackett decision ruled that a continuous surface water connection must exist between a wetland and permanent body of water for it to be eligible for protection. But many wet meadows in high mountain communities like the Gunnison Valley are fed by groundwater, a water source that is invisible to the naked eye. Countless ephemeral streams in the basin only flow early in the year when the snow melts and dry out later in the summer.
The ruling is troubling for water managers in the West, where wetlands act as a buffer against drought and wildfire. The Gunnison Basin alone has already lost a significant amount of its wet meadows, a central focus of many ongoing restoration projects throughout the valley.
In the face of prolonged drought and aridification, wetlands offer numerous unspoken benefits to the landscapes they are found in, said Cheryl Cwelich, water resource specialist at the Upper Gunnison River Water Conservancy District.
“The land is getting drier and drier,” Cwelich said. “As we lose these wetlands we’re losing the ability for our landscape to be resilient to climate change and drought. Those wetlands help provide water to animals, livestock to even our community.”
Increasing development pressure is a common threat to wetlands. The U.S. Army Corps of Engineers and the EPA issue permits for dredge and fill operations that accompany construction and road projects that may impact any wetlands present on a property.
The plaintiffs in the case, Michael and Chantell Sackett, bought property near Priest Lake, Idaho to build a home. They began backfilling the lot with dirt, but the EPA told the Sacketts the land contained wetlands and the backfill violated the Clean Water Act, which prohibits discharging pollutants into WOTUS.
The EPA classified the wetlands on the lot as WOTUS because they were near a ditch that eventually ran into a creek that fed Priest Lake. The agency ordered the Sacketts to restore the site and threatened fines of more than $40,000 per day. The Sacketts sued.
In the past, Colorado has relied on the Army Corps and the EPA to make wetland determinations, which indicate whether an area is eligible for protection, using a “significant nexus test.” This determines if a natural hydrologic connection exists between a wetland and a nearby stream or lake. But the Supreme Court determined this to be too broad, and decided only wetlands with a direct surface connection to a stream or permanent body of water should be protected.
Because Colorado law requires the protection of both surface and groundwater under the Water Quality Control Act, the state is working on a new permitting system during this interim period — a process it started in 2022 in anticipation of the Sackett ruling. The Colorado Department of Public Health and the Environment released a draft dredge and fill program earlier this summer and plans to continue public outreach. The goal is to have a new policy in place by 2024.
As long as the gap exists, the Sackett decision will remain a major blow to wetland health, said Julie Nania, water program director at Crested Butte’s High Country Conservation Advocates.
“We're a headwaters state, and we care a lot about water quality,” she said. “Our rule makers and legislators recognize that this is not a great opinion based on science if you really care about wetland health and protecting our drinking water sources. I'm cautiously optimistic that Colorado would like to see a higher level of care given for these waterways.”
On Sept. 10-12, the Colorado Water Quality Control Commission is holding its planning retreat in Gunnison. This will give elected officials and municipal water providers and other community members a chance to speak with the Commission, which plans to discuss “waters of the United States” (WOTUS) and the Sackett decision.
(Bella Biondini can be contacted at 970.641.1414 or bella@gunnisontimes.com.)
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