The Water Quality Control Commission voted 9-0 December 11 to adopt Colorado’s first-in-the-nation wetland protection rules. Senator Barbara Kirkmeyer—gubernatorial candidate and bill co-sponsor—had warned the rules exceeded legislative intent and represented “an attack on rural Colorado.” The commission sided with environmental groups anyway. Then Kirkmeyer’s Democratic co-sponsor testified against her position at the hearing.
Regulation 87 implements HB 24-1379, which passed May 2024 after the Supreme Court’s Sackett v. EPA decision stripped federal protection from 50% of Colorado’s waters. The bill’s four sponsors—Kirkmeyer (R-Brighton), Senator Dylan Roberts (D-Eagle County), Speaker Julie McCluskie (D-Dillon), and Representative Karen McCormick (D-Longmont)—agreed on statutory language exempting wetlands “adjacent to a ditch or canal and supported by water in the adjacent ditch or canal” from permitting.
Sixteen months of stakeholder meetings followed. The fragile coalition nearly fractured before December’s hearing. Industry charged CDPHE exceeded legislative intent. Environmental groups countered that industry wanted loopholes.
The battle centered on two words: “adjacent to.”
HB 24-1379’s plain language required wetlands be adjacent to a ditch. The Water Quality Control Division’s draft rules defined adjacent as requiring “a continuous surface or shallow subsurface water connection” to the ditch, with wetlands that would “not exist but for water from the ditch or canal.”
Kirkmeyer sent CDPHE a November 18 letter calling the tighter definition inconsistent with legislative intent. Water districts wanted “close proximity” added as compromise. Environmental groups countered with “very close proximity.” The hearing battle got granular—should wetlands a mile from a ditch get the agricultural exemption?
Representative McCormick testified at the hearing warning against Kirkmeyer’s position. Broadening the adjacency definition to land lying miles away “could exclude another 500,000 acres of wetlands from the rules and leave those areas open to unregulated development,” creating “a dangerous and unintended loophole.”
Commissioners sided with McCormick and environmental groups. The final rule requires wetlands be in “close proximity” to ditches—tighter than the statute’s language and far tighter than Kirkmeyer sought.
The second battle: “public interest” review authority.
Stuart Gillespie, representing Conservation Colorado and GreenLatinos, argued the U.S. Army Corps conducts such reviews federally and legislators intended to mirror federal rules. Attorneys for cities, utilities, and water districts countered that HB 24-1379’s extensively detailed text chose not to require public interest reviews. Adding them would expand WQCD authority beyond water impacts.
Commissioners voted 5-4 against public interest review authority. Nicole Poncelet-Johnson, the swing vote who runs Fort Collins’ One Water Program after leading Denver Water’s treatment operations, warned the standard “could allow outside groups to slow the review process via legal actions” and “could cost those local ratepayers a lot of money and not necessarily result in improvements for Colorado waters.”
Both sides claimed victory. Environmental groups won tighter adjacency definitions. Industry blocked public interest reviews. Northern Water’s Chris Manley said “our concerns were addressed.” Colorado Trout Unlimited’s David Nickum said “we feel pretty good about the rules.” CDPHE Director Jill Hunsaker Ryan called it “a balanced approach.”
Regulation 87 Section 87.5 mandates CPW consultation on any application affecting aquatic resources. CPW already shapes rural property use through habitat designations embedded in county land use codes—often without individual notice to property owners. Now CPW consultation extends from land use codes into wetland permitting.
Section 87.10 establishes compensatory mitigation for unavoidable impacts. When regulations make some disturbance inevitable, property owners pay into mitigation banks often operated by conservation organizations—some of the same groups that lobbied for the restrictions.
The Water Quality Control Division will add staff funded through new permit fees paid by applicants. Permit review timelines run up to one year. The regulation covers 250,000 acres of wetlands and thousands of miles of seasonal streams. Fixed fees apply to small projects. Large projects face “full-cost recovery” fees—property owners pay the complete cost of reviewing their own applications.
Kirkmeyer’s November 18 letter positioned her as rural Colorado’s defender against state agency overreach. The commission’s 9-0 vote rejecting her position—with support from her Democratic co-sponsor—came three months into her gubernatorial campaign.
February 2026 brings final commission action. Implementation begins August 2026. Rural property owners will then discover whether “close proximity” definitions and one-year permit timelines provide certainty or add complexity to existing regulatory layers.
The pattern continues: foundation-funded groups lobby appointees to approve restrictions triggering mitigation requirements. Mitigation payments flow to organizations that advocated for the restrictions. CPW consultation extends from land use codes into wetland permitting. Definitions tighten beyond statutory language. Timelines stretch. Fees accumulate. Property owners who can’t navigate the complexity or afford consultants sell to those who can.
Both major parties provided bill sponsors. Both environmental groups and industry claimed victory. The regulatory convergence continues regardless of which side wins individual battles.
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