Resilience and Stewardship for Colorado’s Waterways, 2024 Legislative Priorities

By Abby Burk

January 22, 2024

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 Colorado specifically? 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:

Wetlands that are not adjacent to a flowing river
Playa lakes, which are groundwater-dependent,
Fens, (a type of peat-accumulating wetland fed by mineral-rich ground or surface water)
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.

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.