Community Agriculture Alliance: Ephemeral waters and wetlands protection
For Steamboat Pilot & Today
Currently, the Colorado Department of Public Health and Environment is looking into partially assuming the role to oversee and issue dredge-and-fill permits instead of the federal government. We often refer to this as the 404 Permitting Process.
The reason CDPHE is looking into this is to address what it sees as a lack of federal protection on certain waters in Colorado under President Donald Trump’s Navigable Waters Protection Act of 2019. Notably, the Trump act did not include ephemeral streams or nonadjacent wetlands under federal jurisdiction. The 2015 Waters of the United States by President Barrack Obama did include ephemeral streams (prior to the 2015 rule, ephemeral streams were never under federal jurisdiction).
An ephemeral stream has flowing water only during, and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round.
Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow. Intermittent streams — which have been and are covered under federal jurisdiction — are similar except that groundwater is a source of water for the stream and rainfall is supplemental.
CDPHE’s effort has been described as a “gap-filler” program to provide the agency with temporary authority to issue permits after the Trump act took effect April 23 and before any new rules can be implemented by the Biden administration. CDPHE’s program would go dormant unless the federal government changes jurisdiction of federal waters again in the future.
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In past discussions about ephemeral streams at the federal level, there are exceptions for agricultural lands and ditches. Many farms and ranches have ephemeral streams (or dry washes) crossing their properties, and even basic farm operations (running equipment over the ground) would require a permit. This would be detrimental to any agricultural operation. If there is a state program, we would need to see the same consideration and understanding for exemptions of agricultural operations.
While some states have investigated and assumed the entire role of dredge-and-fill permitting, it took years of planning, feasibility studies and extensive outreach with the regulated community. Many states lacked an equivalent state program to the 404-permitting process. States without a comprehensive program already in place did not have the programmatic experience to effectively run a dredge-and-fill program.
Even though there is federal funding available to examine the issue of states assuming the role of dredge and fill, Colorado has not requested funding or completed any feasibility analysis. Colorado does not have a state wetland program or state regulatory program relating to wetlands or dredge and fill. The funds to implement a program need to be addressed. CDPHE is currently years behind processing permits with their current staff.
If Colorado wants to even consider a temporary gap-filler program, residents will be living with the consequences of whatever structure is put in place. Shouldn’t the state put in the same time and resources as other states to see if a program is good for Colorado?
Greg Peterson is executive director of the Colorado Ag Water Alliance.
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