Colorado lawmakers are considering legislation to restore protections to key waters and wetlands struck down by the U.S. Supreme Court last year in a decision leaving more than half of the nation's water supply at risk of industrial pollution.

Margaret Kran-Annexstein, director of the Colorado chapter of the Sierra Club, said House Bill 1379 is in sync with Colorado voters, pointing to a recent survey which found nearly nine in 10 voters want to limit damage and pollution from development, industry and mining on wetlands and streams.

"Recent polling has found that massive majorities of Coloradans, whether they are Democrat, Republican or Independent, really support common sense water protections that would happen under this bill," Kran-Annexstein reported. "I think we can all agree that clean water is a necessity."

A coalition of conservation groups support the measure to create a permitting program for responsible development through the Colorado Department of Health and Environment.

Last month, Sen. Barb Kirkmeyer, R-Brighton, introduced an alternative proposal supported by the homebuilding industry, which would require a new division and staffing in the Department of Natural Resources.

Kran-Annexstein stressed clean, reliable water resources drive the economy and are vital for the health of communities. She believes the high court's ruling, claiming some waterways do not have significant connections to watersheds, was a win for corporate polluters who want to avoid permitting.

"In Colorado we know that there are a lot of streams and rivers and wetlands that run dry for certain parts of the year," Kran-Annexstein pointed out. "This ruling said that those waterways don't deserve protections and they don't count, just because they are seasonal."

Mountain states like Colorado are the source of drinking water for some 40 million Americans living in downslope states and Kran-Annexstein said the House bill is an opportunity to pass important and necessary protections after last year's Supreme Court decision.

"This decision left half of the waters across the United States unprotected by the Clean Water Act," Kran-Annexstein emphasized. "And really left it to states to make their own laws to protect state waters. And now it is the responsibility of states to step up and close that gap."

The Environmental Protection Agency would be in charge of protecting and restoring the Ohio River Basin under recently proposed legislation by Reps. Morgan McGarvey, D-Ky., and Erin Houchin, R-Ind.

Other waterways around the country, such as the Chesapeake Bay and the Great Lakes, have dedicated federal restoration funding, but the Ohio River does not, said Michael Washburn, executive director of the Kentucky Waterways Alliance. He added that a large portion of the nation's commerce relies on the 204,000-square-mile river basin.

"What this means," he said, "is that we've had decades, if not longer, of people, communities and industries treating the river more like a machine than like an abundant natural resource that it is."

The Ohio River Restoration Program Act would require monitoring and data collection, habitat restoration, farm conservation, invasive-species control and management, support for homeowners concerned about their local watershed, and investments that help communities prepare for the impacts of extreme storms and flooding.

A 2023 report by American Rivers found the Ohio River is the second most endangered waterway in the nation.

Heavy industry dumped more toxic pollution into the Ohio River watershed than any other in the United States in 2020, according to data from Environment America. Washburn pointed to mounting challenges, such as addressing PFAS contamination, which makes the need for federal funding even more critical.

"Twenty-five million people live in the basin," he said. "Five million of those folks directly get their drinking water from the main stem, but many millions of other folks get their drinking water from tributaries that are also in peril that need help. "

A recent poll from the Environmental Protection Network found nearly 70% of voters say they want the EPA to implement federal protections, such as the Clean Water Act and Clean Air Act.


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More than 143 million Americans are at risk of toxic PFAS, so-called forever chemicals, in their drinking water, according to new test results released by the Environmental Protection Agency and with just 40% of water systems fully tested, the number is expected to rise.

Even low doses of PFAS have been linked to compromised immune systems, fetal harm and cancer.

Ken Sansone, attorney at SL Environmental Law Group, said PFAS, developed by companies including 3M and DuPont, are both very useful but very dangerous.

"It was used in thousands of different kinds of consumer and commercial products, including food packaging, cleaning products, cosmetics, cookware, stain resistant coverings for clothing and furniture and carpets," Sansone outlined. "The list goes on."

The Colorado Department of Public Health and Environment has identified 27 water systems, serving 268,000 customers, exceeding new federal PFAS standards. Colorado lawmakers have moved to phase out PFAS use by 2028, and last year extended restrictions to include cookware, dental floss, menstruation products and others.

Sansone pointed out despite sizable legal settlements with PFAS producers, it will not be enough to cover the costs of shoring up water treatment systems. The American Waterworks Association projects the cost of compliance will be well over $50 billion.

"There's going to be some costs here that ultimately ratepayers at these water utilities are going to remain on the hook for," Sansone emphasized.

The Environmental Working Group estimated nearly 30,000 industrial polluters are still releasing PFAS chemicals. Sansone noted the new drinking water restrictions on PFAS, the equivalent of four drops in 20 Olympic-sized swimming pools, will apply to every public water system in the nation.

"They will need to ensure within the next few years that the water they are serving to their customers does not exceed these limits," Sansone stressed. "They are very low limits. For PFOS and PFOA, they are set at four parts per trillion."


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By Jennifer Oldham for Civil Eats.
Broadcast version by Eric Galatas for Colorado News Connection reporting for the Solutions Journalism Network-Public News Service Collaboration

On a dry, hot day in June, water manager Chris Ivers plunged his hand into San Luis Creek and extracted a tangled mat of weeds that had blocked icy snowmelt from reaching nearby farms. The free-flowing water is a welcome sight in southern Colorado, an agricultural region in the throes of a groundwater crisis.

Ivers, who helps farmers and ranchers in this arid valley use the scarce resource wisely, pointed out the full ditch and green shoots emerging nearby-a byproduct, in part, of a regional experiment in water conservation. "I'm encouraged," he said as crows squawked overhead and mustard grass waved in a slight breeze. "I really haven't been walking out here in a while."

Producers in this sprawling valley, cradled between the San Juan and Sangre de Cristo mountains, have just seven years to replenish overtapped groundwater to levels required by law or face state-mandated well shutdowns. Aquifer storage plunged in 2002 on the heels of a severe drought and hasn't markedly recovered, and much of the region is currently under a federal disaster declaration. Following the 2002 drought, farmers voluntarily created seven governing bodies, called water subdistricts, in the hopes of replenishing two aquifers that make growing food viable here in North America's largest high-altitude desert.

Fields in the San Luis Valley yield two billion pounds of potatoes a year, making the region the nation's second-biggest spud producer. But the valley's irrigation outlook is dire: Water withdrawn by wells exceeds the amount of snowmelt refilling aquifers, and there are more claims to water rights than there is water in streams. The expanse is among the most densely irrigated regions on Earth. To reach that seven-year target, farmers and residents will have to further curtail water use by retiring wells, fallowing fields, and switching to less water-intensive crops; otherwise, the state engineer may intervene and order well curtailments.

That puts Ivers, a program manager for two subdistricts with the Rio Grande Water Conservation District, at the center of difficult decisions about how to use, and conserve, the valley's shrinking water supplies. He is also implementing an innovative project designed to add water back into the aquifer. If successful, the experiment could provide a roadmap for hundreds of farming and ranching communities nationwide whose groundwater stores are dwindling at unprecedented rates.

An 'All Hands' Crisis

At Peachwood Farms, a flat, 1,897-acre expanse at the heart of the valley's groundwater conservation trial, Ivers stood amid fallowed fields bordered by circles of barley and areas being revegetated with native seeds. This patchwork of land marks the personal sacrifices that are keeping the region's agricultural industry-its largest employer-alive.

"If you ask somebody who works in water like me, this looks great," Ivers said, as pronghorn observed him from a distance and a golden eagle circled overhead. The goal, he added, is to significantly curtail water use on the property in order "to help make farming in the rest of this region more sustainable."

In 2022, the nonprofit Colorado Open Lands forged what's known as a groundwater conservation easement with Peachwood Farms' owner. The agreement retired pumping on seven of 12 crop circles over the next decade and halved water use from the remaining five, in exchange for an undisclosed cash payment to the farm and state and federal tax credits. The easement saved 560 million gallons a year and made the aquifer in this part of the valley whole. The unconventional deal ensured that the property's neighbors, like David Frees, will not face well shutdowns, and is an example of the kind of complex solutions needed to keep farms going in the current climate.

"The Peachwood easement allowed us to drop groundwater pumping [in the subdistrict] by 10 percent," Frees said in a recent interview. "Without it, we might have had to curtail everyone's water use by 10 percent."

Instead, the easement allowed the subdistrict's farmers to continue their operations much as they have in the past, said Frees, who runs 60 head of cattle and is president of one of the valley's seven water subdistricts. "As the aquifer fills up, we will have more stream flow extend to other parts of the valley."

Groundwater depletion is by no means unique to this corner of Colorado. Across the U.S., groundwater stores are in the red and dropping fast. Aquifers that farmers rely on for irrigation in California, Arizona, New Mexico, Nebraska, and elsewhere have fallen by dozens of feet since 2002, satellite imagery shows.

Amid this national crisis, the attempts by the farmers in the San Luis Valley to moderate their own use caught the eye of U.S. Senator Michael Bennet (D-Colorado). In 2023, Bennet introduced a bill in the Senate that would increase nationwide funding for groundwater conservation easements akin to the one on Peachwood Farms. Bennet is currently working with fellow senators to include either funding for such programs or a pilot groundwater easement project in the 2024 Farm Bill, said Rosy Brummette Weber, a policy advisor to Bennet.

The Peachwood Farms groundwater conservation agreement has also prompted water managers in overdrafted basins from California to Kansas to approach Colorado Open Lands for information on how to use similar arrangements to preserve water for their growers.

The stakes are high and mounting: The nation's aquifers are dwindling due to rising temperatures, drought, and overuse. Many are not replenishable. Disappearing groundwater threatens the livelihood of crucial agricultural regions like the San Luis Valley, which in turn diminishes the national food system, making the U.S. more reliant on imports. The breadth of the problem prompted President Biden's Council of Advisors on Science and Technology to issue a warning in December, calling the crisis "an all-hands-on-deck moment for groundwater sustainability."

The refusal of some growers nationwide to curb groundwater pumping became evident in May, when Idaho's water agency ordered limitations on the use of wells serving a half million acres of agricultural land, an action described as "the largest curtailment" in state history.

In southwestern Colorado's high desert, producers already till fewer acres, tax themselves to fund fallowing programs, and plant less water-intensive crops. Taxpayers are also footing the bill for a $30 million program approved by the state legislature, in which the Rio Grande Water Conservation District uses funding from the American Rescue Plan Act to pay farmers for retiring their wells.

Yet even after growers here cut pumping by a third, in 2022, water in one of two aquifers fell to its lowest level on record, after extreme heat led to diminished snowpack. Throughout the West, the snowpack of the mountains acts as water bank, with snowmelt filling creeks and streams throughout the summer that help irrigate fields and recharge the aquifer. (The San Luis Valley floor receives only seven inches of rain per year.)

To ensure its aquifers remain sustainable amid an uncertain climate future, the Rio Grande Water Conservation District must permanently withdraw up to 60,000 acres of land from irrigation, about 10 percent of the valley's arable land. After two decades of effort, the aquifers are only a third of the way charged, and frustration with the pace of recovery is high among water managers, producers, and residents.

"The aquifer has not recovered, and we have spent tens of millions of dollars on programs to reduce groundwater withdrawals," said Amber Pacheco, the Rio Grande Water Conservation District's deputy general manager, who oversees irrigators in six subdistricts. (A seventh is operated by the Trinchera Ground Water Management Subdistrict.) Some of the region's subdistricts still haven't seen any aquifer recovery and, she added, they "are in a fight against Mother Nature."

Easements Ain't Easy

Most of the water-saving programs in the valley so far have focused on short-term drying up of land. None have created perpetual groundwater savings or allowed people to keep farming by reducing irrigation over their entire property.

Enter groundwater conservation easements. These are legal tools that restrict pumping on a certain piece of property, and in the arid West and Midwest, they present innovative solutions to aquifer depletion.

Such agreements, like the one forged on Peachwood Farms, allow growers to reduce the number of acres they plant, and thus the amount of water they use, in perpetuity, in exchange for federal and state tax benefits. These agreements can overlap with other solutions. The Rio Grande Water Conservation District, for example, is using money from the USDA's Natural Resources Conservation Service to revegetate easement land with drought-resistant native and non-native plants.

Even so, this promising tool faces challenges to its potential. Chief among them are both a lack of funding for such deals and the fact that appraisers who value conservation easements are unsure how to put a value on groundwater.

"People call me and say they want to put in place a groundwater conservation easement and I say, 'That's great: We have no idea what we would pay you,'" said Sally Wier, groundwater conservation project manager at Colorado Open Lands, who lives and works with producers in the San Luis Valley. "I have people who are 70 years old, and they are trying to decide whether to fallow their land or stay optimistic and continue farming."

Appraisers are adept at valuing traditional conservation easements, in which farmers and ranchers receive tax breaks and grants in exchange for placing deed restrictions on their operations that bar most development. Such deals exploded in popularity over the last decade as agricultural producers sought to stave off big-box stores, self-storage complexes, and residential construction, all of which already consume millions of acres of fertile open space. But applying the same approach to water is tricky.

The Spread of Innovative Easements

In the San Luis Valley, Colorado Open Lands also pioneered a conservation easement program that ties surface water rights to the land. This legal assistance project paired farmers with law students to formalize verbal water-sharing agreements into bylaws. As a result, it preserved a network of centuries-old irrigation ditches known as acequias, whose operators hold the state's oldest water rights.

Similar efforts are underway elsewhere in the West. Just a six-hour drive to the south, near Clovis, New Mexico, lies another arid region desperate to replenish its drought-stricken aquifer.

Here, the Ogallala Land and Water Conservancy is pursuing short-term conservation easements on groundwater rights while it works to secure more funding for perpetual deals. It's a sprint to refill the massive Midwest aquifer, which spans eight states and declined about 17 feet, on average, from when irrigation began in the 1950s through 2017, a U.S. Geological Survey study found.

The diminished water supply requires sacrifices like those made on Peachwood Farms. Eight landowners have forged groundwater leases with the conservancy in which they've agreed to stop pumping from 51 wells, saving about 4 billion gallons a year. Their actions will help secure groundwater supply for Cannon Air Force Base, the city of Clovis, and Curry County-and will protect habitat for endangered species.

To figure out how to fairly compensate the landowners for their water, the conservancy installed a special flow meter on center-pivot sprinklers to calculate total gallons per minute of annual groundwater production, said Ladona Clayton, the Ogallala Conservancy's executive director.

The organization also reviewed crop budgets to analyze harvests over previous years and the herbicides used, as well as insurance, labor, and other production costs, she added. Using about $5 million in federal and state funds, it then annually paid the landowners for 100 percent of the appraised value of their groundwater, allowing them to keep 20 percent of their water. Agreements extend for three years while the nonprofit works to secure further funding for conservation easements.

"These producers who have lease agreements shut off wells in 2022, many that were dry on certain parts of their land," Clayton said. "Now those wells have water-it's music to my ears-they can haul water for their livestock."

Such deals are showing promise, and more will be needed. Extended drought throughout the West is unlikely to abate, nor is demand for water.

Meanwhile, farmers in the San Luis Valley who raise livestock near Peachwood Farms hold high hopes for the groundwater conservation easements. Such deals may eventually play a key part in the ongoing effort to restore the region's aquifer system.

"I'm the fifth generation to farm in the area, and I wouldn't mind doing more deals" like Peachwood, said Pete Stagner, who is vice president of the water subdistrict overseen by Frees and runs 200 head of cattle on a ranch adjacent to Peachwood. "I'm hoping that I can see in my lifetime that our aquifer can get back up to where it was in the 1950s."


Jennifer Oldham wrote this article for Civil Eats.


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