Major diversion

State committee narrowly rejects bills that would concentrate dam and reservoir permitting to one state office

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There was an effort by half of the state’s Water Resources Review Committee last week to approve two bills that would have taken the permitting process for new dams and reservoirs away from federal and state regulatory agencies like the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers and other wildlife and public health agencies and given all dam and reservoir permit decisions solely to the Office of the State Engineer.

The first draft bill essentially intended to strip the rights of state regulators, including the state energy office, the water quality control division, the parks and wildlife commission and more from making decisions about any hydroelectric energy facility (dams); certification for water diversion, delivery and storage facilities (reservoirs); and state mitigation plans for water diversions that affect fish and wildlife.

The second draft bill sought to strip federal regulators, like the EPA, the Army Corp of Engineers, the Bureau of Reclamation and others, from permitting on water issues and resources done at the federal level.

Both bills would have consolidated all that regulation and decision-making to the Colorado Office of the State Engineer, otherwise known as the Division of Water Resources.

The bills were brought forth by Rep. Jerry Sonnenberg (R-Wray) and were heard on Oct. 29 in the committee. The 10-member committee voted along party lines, and with an even split of Republicans voting for and Democrats voting against the bills, both quickly died — for now.

The bills could still be presented to the state legislature by Sonnenberg or another legislative member when the new session convenes in January. Given the split state legislature, which has been the cause of death for many bills, it’s unlikely the bills would gain any traction, but their introduction in the committee might represent a much larger push by some on the right to limit permitting regulation on water issues.

“These bills were just political posturing,” says Gary Wockner, executive director of Save the Colorado. “There’s definitely an effort afoot to gut environmental review and fast track dams and reservoirs and jam those down the throats of Colorado citizens, which would include further draining and destroying the state’s rivers. How vast and aggressive that is and how much money and power they have behind them remains to be seen.”

Wockner says the bills, if reintroduced and passed, would likely face immediate challenges from the federal government, an expensive proposition with a very murky outcome for the state. Plus, the state would have to develop regulatory infrastructure in order to change the current permitting process for dams and reservoirs.

“In order to get the actual permitting process away from federal government you have to have a very detailed and comprehensive state level permitting process already in place, and the state does not have that,” Wockner says.

To those in the know about Colorado’s water issues, the suggestion of condensing all permitting powers to one office seems ludicrous. But the case made for these bills is likely to appeal to a large segment, particularly those who lean right, of Coloradans: less federal regulation, less state bureaucracy around permitting and a secure source of water for the state.

But, of course, that narrative bypasses important functions the current regulatory system has in place, Wockner says.

“Because the engineer’s office doesn’t do professional water analysis or wildlife analysis or wetlands analysis, which does happen in the Colorado Department of Parks and Wildlife and the Department of Public Health and the Environment, and so by getting it out of the professional offices, and handing it to the engineer, [the bills would] be gutting the intent of any kind of environmental review.”

Wocker adds that the Office of the State Engineer’s purpose is solely to “build stuff.”

This is not to say that the current permitting process is perfect, Wockner says. When a company or organization applies for a permit to build a reservoir or dam with the U.S. Army Corps of Engineers, the Corps will not do the environmental impact research themselves. Instead, they’ll often farm it out to engineering firms that would seem to have an interest in seeing that dams and reservoirs are built. Instead of that system, Wockner says, the Corps should seek out independent experts and hydrologists at the state’s universities to conduct the environmental impact studies. Doing so, he believes, would limit the constant public backlash on water projects that often come as a surprise to communities that are affected by proposed development.

If there is a larger push for reducing regulation around water issues in the coming months, and if any outside interests were behind the two bills that failed to get out of committee last week remains to be seen. Wockner says he hasn’t seen similar bills introduced yet in states that depend on the Colorado River, like Utah, Wyoming, Arizona, Nevada and California, and that Colorado has been the “most radical right-wing in the Southwest,” when it comes to water issues.

The state’s grand water regulation plan, Colorado’s Water Plan, is the product of an executive order by Gov. John Hickenlooper, and will manifest as a final draft in December. The plan will include a more “efficient permitting process,” and the latest draft calls for the solicitation of private funds to help build new water supply projects that have yet to be determined.

The rejected bills would’ve likely figured into the Water Plan if passed.