Over the past few years, the U.S. Supreme Court has issued decisions upending decades of well-established environmental protections. Earlier this year, in a case brought by Colorado county governments challenging the routing of a train hauling oil tank cars, the Supreme Court strictly limited the range of environmental impacts that an agency needed to consider in approving a project under the National Environmental Policy Act.
In 2023, the Supreme Court similarly upended the Clean Water Act, first adopted in the presidential administration of Richard Nixon. The court decided in the case Sackett v. EPA that isolated wetlands and fens, like the type common across the high country here in the San Juan Mountains, were no longer protected from activities that dredged, filled or drained them. The reasoning was that the Clean Water Act applied to navigable streams and rivers, and protecting wetlands was only required if there was continuous surface flow between the wetland and a perennial stream.
With the current presidential administration and the Supreme Court rejecting long-standing conservation laws, Colorado leaders have stepped up to create strong new environmental protections rooted in state law.
In response to the Supreme Court’s elimination of wetland protections, the Colorado legislature passed a law creating a new state program to take up the slack and to fill the gap in the protection of wetlands, fens and ephemeral streams created by the court’s decision. The law directs the Colorado Water Quality Control Division to draft rules to implement the new law with a deadline of Dec. 31. Those rules, called Regulation 87, are now open for public comment.
The new program reinstates rules to protect wetlands and fens that are based on the state’s right to implement water quality protections, insulated from future shenanigans in federal courts and Washington.
Folks might be familiar with the fens on Ophir Pass, where a long-running citizen science effort has been underway to restore fens damaged by historic dredge and fill activities. Fens are found throughout the high country and require perennially saturated soils produced by nearly constant groundwater inflow to accumulate peat. That groundwater connection is no longer guaranteed any level of protection against dredging, filling and draining under the Supreme Court’s Sackett decision.
As noted by scientists at Mountain Studies Institute, even small water diversions or depletions can reverse the process of peat accumulation that has been ongoing in many fens for more than 10,000 years and lead to fen destruction.
Wetlands are particularly important to environmental health and community water supplies. Wetlands function as natural filtration systems to ensure high-quality water downstream for drinking, recreation and agriculture. The spongy soils that compose a wetland serve as naturally distributed water storage, storing water during wet periods and releasing it during dry spells. Wetlands provide refuge and resilience in the face of a warming climate and increased risk of wildfires.
Conservation groups are calling on the Colorado Water Quality Control Commission to adopt strong and enforceable rules that restore lost protections for Colorado’s most threatened waters, and in the process increases Colorado’s resilience to a changing climate.
These rules aim to restore the level of protection that existed before the Supreme Court’s ruling. The intention is to set clear, workable standards that are comprehensive in protecting water while providing certainty for landowners, developers and businesses alike.
The Colorado Water Quality Control Commission is holding hearings over the course of several days in December. In the meantime, the public can offer support by signing petitions such as this one promoted by the National Audubon Society.
Mark Pearson is Executive Director at San Juan Citizens Alliance. Reach him at mark@sanjuancitizens.org.
