After Supreme Court decision left wetlands unprotected, Colorado steps in

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Colorado lawmakers approved what advocates are calling the first policy in the nation to regulate development in wetlands since the U.S. Supreme Court narrowed protections for those areas last year.

A bipartisan group of lawmakers hashed out a compromise, applying new protections for streams that do not flow year-round and wetlands that have underground connections to streams, two categories that the high court said did not fall under the jurisdiction of federal environmental laws. To address concerns raised by farmers, miners, developers and cities, the bill exempts certain maintenance work on irrigation ditches and canals from the new rules, along with any work that disturbs less than a tenth of an acre of wetland or 3/100th of an acre of streambed, according to the Colorado Sun.

“We could not be more proud of the fact that Colorado is the first in the nation to pass legislation that restores protections for our wetlands and streams from mining, construction and other development activities that were removed last year by the Supreme Court,” wrote the Protect Colorado Waters Coalition in a statement. “It is a huge win for the environment.”

The bill now goes to Gov. Jared Polis, a Democrat, who has supported previous versions of the proposal.

The issue of wetland regulations is particularly poignant in Colorado, where two-thirds of the state’s waters are temporary in nature and lack year-round flow, according to a friend-of-the-court brief the state filed in the Supreme Court case.

“Colorado’s position as a headwaters state with strong interests in protecting water quality and aquatic resources and supporting the needs of agriculture and industry gives it a unique perspective,” Attorney General Philip Weiser wrote in the brief.

The Democrat had asked the high court to maintain federal jurisdiction over those types of wetlands. But the Supreme Court declined.

Instead, a majority of five justices ruled that the Clean Water Act only applies to wetlands that have a continuous surface connection to bigger bodies of water, where it is hard to tell where the “waters” end and the “wetlands” begin.

“The area covered by wetlands alone is vast—greater than the combined surface area of California and Texas. And the scope of the EPA’s conception of ‘the waters of the United States’ [that are governed by the Clean Air Act] is truly staggering when this vast territory is supplemented by all the additional area, some of which is generally dry, over which the agency asserts jurisdiction,” Justice Samuel Alito wrote for the majority.

The ruling put the onus on states to determine how extensive they wanted their wetland protections to be and to pay for the additional work it would take to monitor those areas. Roughly half the states relied on federal rules to determine what waterways they would regulate for dredging and filling activities before the Supreme Court ruled, according to an analysis by James McElfish, an attorney at the Environmental Law Institute.  

Places like Minnesota and New York had already put broader state-level protections in place before the high court ruling, but other Democratic-led states like Illinois, New Mexico and Washington were considering new rules in response to the decision, Stateline reported in March.

A few Republican-led states moved in the opposite direction, with Indiana and North Carolina loosening their states’ permitting requirements, according to E&E News.

Jon Devine, an attorney and director of freshwater ecosystems at the Natural Resources Defense Council praised the Colorado legislation as a “thoughtful program that protects [residents] from unregulated pollution and destruction.”

“But this bill was only needed because the Supreme Court recklessly stripped federal Clean Water Act protections from countless wetlands, streams and other waters nationwide,” he added. “We need other states’ decision-makers and, ultimately, the U.S. Congress, to follow Colorado’s example and restore these safeguards for communities across the country.” 

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News to Use

Trends, Common Challenges, Cool Ideas, FYIs and Notable Events

• NATURAL DISASTERS: Louisiana ushers in controversial changes to address insurance crisis. Gov. Jeff Landry on Tuesday signed several bills aimed at attracting more insurance companies to offer coverage in the state. The new laws make it easier for insurance companies to drop policyholders, raise rates and have more time to pay claims after a storm. The controversial package of bills comes amid an insurance crisis that saw rates skyrocket after a dozen regional insurers went belly-up and several bigger insurers retreated from the market. The dynamic of rising rates and insurers fleeing mirrors that of other coastal states at most risk from extreme weather because of climate change.


• FINANCE: California governor announces $27.6B budget deficit. Gov. Gavin Newsom announced the $27.6 billion deficit on Friday—a gap so wide that he’s proposing cutting 10,000 vacant state jobs and suspending some widely used business tax deductions. The Democratic governor outlined the deficit as part of his proposed $288 billion state budget for the fiscal year that starts July 1. The deficit is smaller than the $38 billion Newsom predicted in January, but that’s because it doesn’t include $17.3 billion in cuts and other actions he and lawmakers already agreed on to help close it. Otherwise, it would be closer to $45 billion. This is the second year in a row the nation’s most populous state is facing a multibillion dollar shortfall. State revenues have continued to fall amid increasing inflation and a slowdown in the state’s normally robust technology industry.


• TAXES: ‘Millionaire’s tax’ drives up April revenues in Massachusetts. Preliminary total revenue collections in Massachusetts for April are $6.3 billion, or about 32% more than the same time last year, according to the state Department of Revenue. The increase was largely driven by the “millionaire’s tax” and excess capital gains. Tax collections beat expectations by more than $1 billion. But the money from the millionaire’s tax is already earmarked for education and transportation initiatives, as well as the state’s rainy day fund, which means the state cannot use the $1 billion  to help balance the remaining budget.


• HOUSING: New Hawaii law cracks down on vacation rentals amid housing crisis. Gov. Josh Green late last week signed into law a bill that gives counties the ability to better regulate short-term vacation rentals in the hope of freeing up affordable, long-term housing for island residents. Of the 89,000 short-term rentals across the state, Green estimates that about 75,000 of them are illegal. The new law clarifies each county’s ability to regulate short-term rentals through zoning, including banning them if they choose. Across Hawaii, Green said 25% of residents struggle to cover housing expenses. Hawaii already has a shortfall of 50,000 affordable homes, with the average home price costing $832,000. 


• MEDICAID: New Iowa law expands postpartum Medicaid coverage, restricts eligibility. Gov. Kim Reynolds signed a measure extending postpartum Medicaid coverage for new and expecting mothers starting in 2025. The extension from a 60-day limit to a full year of coverage is allowed for under a 2021 federal pandemic emergency measure. Iowa is one of the last states to implement the provision. But the law limits eligibility for the benefits. It lowers the income limit for families to 215% or below the federal poverty line. This restriction represents a drop from the 375% FPL income limit for coverage. That means a family of four making roughly $64,5000 annually or less, and a single mother and infant making $43,900 or less, would qualify. According to legislative analysts, the income restriction will mean that, each month, roughly 1,300 mothers and 400 infants who were eligible under the previous limit will not have Medicaid coverage.


• PROTESTS: Student protesters could face felony charges thanks to old laws. Ohio Attorney General Dave Yost sent a letter Monday to Ohio university presidents saying recent protesters who were arrested may have committed a felony by wearing a mask. A 1953 Ohio law says it is a felony to commit a crime—even a misdemeanor—with two or more people “while wearing white caps, masks, or other disguise.” Several states passed anti-masking laws in the mid-20th century in response to violence by the Ku Klux Klan, according to the Southern Poverty Law Center. About 15 states have anti-mask laws still on the books, according to the Free Speech Center at East Tennessee State University. Universities and colleges nationwide have recently been the site of protests over the Israel-Hamas war in Gaza, where some protesters wore face coverings.


• DATA PRIVACY: Maryland enacts strict kids' digital safety law. A new law meant to protect Maryland children from dangerous repercussions of using social media will survive a likely challenge in federal court, sponsors of the measure said Thursday. The law, which Gov. Wes Moore signed Thursday, requires default privacy settings to be set higher for children and regulates how social media and other companies collect or sell data of users who are minors. The law also requires companies to complete assessments that specifically look at how a new feature might affect children before the feature is rolled out to the public. California enacted a similar law in 2022. NetChoice, an association of tech companies, successfully blocked the law in U.S. District Court on the basis that the law violated the First Amendment. The lower court decision is being appealed.


• ABORTION: How a Texas man is testing out-of-state abortions. A Texas man is petitioning a court to authorize an obscure legal action to find out who allegedly helped his former partner obtain an out-of-state abortion, setting up the latest test of the reach of statewide abortion bans. Collin Davis brought the action to potentially bring a lawsuit against his partner, who obtained an abortion in Colorado. Davis hired a prominent antiabortion attorney, Jonathan Mitchell, to pursue his claims. “Fathers of aborted fetuses can sue for wrongful death in states with abortion bans, even if the abortion occurs out-of-state,” Mitchell wrote. “They can sue anyone who paid for the abortion, anyone who aided or abetted the travel, and anyone involved in the manufacture or distribution of abortion drugs.” But abortion rights activists say people are free to travel to other states to obtain abortions.


• CONSUMER PROTECTIONS: Taylor Swift bill is signed into Minnesota law. People buying tickets online for concerts, sporting events and other live events in Minnesota will be guaranteed more transparency and protection under a so-called Taylor Swift bill signed into law Tuesday by Gov. Tim Walz. The law, prompted by the frustration a legislator felt at not being able to buy tickets to Swift’s 2023 concert in Minneapolis, will require ticket sellers to disclose all fees up front and prohibit resellers from selling more than one copy of a ticket, among other measures. Supporters of Minnesota’s new law say the state joins Maryland as among the few states to pass protections for ticket buyers into law.


• CLIMATE: Why Highway 1 is the climate challenge that California can’t fix. A Central Coast stretch of Highway 1, California’s beloved road-trip destination, has been severed for more than a month because of a rockslide. In fact, landslides have repeatedly buried the highway’s undulating curves or sent pavement tumbling into the Pacific Ocean. They bring a steady drumbeat of road blockages, tourism disruptions and stranded communities. Now, some fear the landslides are getting worse, due to climate change and engineering missteps throughout the roadway’s 86-year life span, reports The Washington Post. Despite spending a billion dollars a year to fix damage that climate-related stressors inflict on its roadways, California is struggling to fortify one of its most prized landmarks.


• GUNS: Georgia AG questions Savannah’s ‘lock up your gun’ law. A Georgia state official is trying to block city councils and other local governmental bodies from  outlawing the leaving of guns in unlocked cars. Georgia Attorney General Chris Carr issued a letter late last week to a Savannah city official informing him a first-of-its-kind law championed by Mayor Van Johnson violates state statute and is thereby void. The Savannah City Council unanimously passed the revisions to local gun laws last month, requiring the reporting of firearms thefts and imposing penalties on those who leave unsecured weapons in their vehicles. Johnson dismissed Carr’s letter as a legal opinion and said the courts, not the Georgia attorney general, would have the final say on whether the law is constitutional.


• CELLPHONES: Colorado, Pennsylvania to ban cellphone use while driving. Under a new bill on Colorado Gov. Jared Polis’ desk, drivers 17 and under cannot use their phone at all. Colorado drivers who are 18 and older can use Bluetooth while driving, with some exceptions. Similarly, Pennsylvania Gov. Josh Shapiro said he will sign a bill that bans drivers from handling a cellphone for almost any purpose while driving. Twenty-eight states already ban handheld cellphone use while driving, according to the National Conference of State Legislatures. Pennsylvania’s bill also includes a provision requiring bigger police departments, as well as the Pennsylvania State Police, to collect and publicly report data on traffic stops, including a driver's race. At least 23 states have laws on collecting data on traffic stops.

Picture of the Week

THE PORTAL: a visual bridge connecting New York City to Dublin

A public technology sculpture known as The Portal was unveiled this morning in New York City’s ’s Flatiron neighborhood. The sculpture has a real-time, visual live stream connecting New York City to Dublin, Ireland. pic.twitter.com/ATNBq63QeC

— Noel Y. Calingasan • NYC (@nyclovesnyc) May 8, 2024

Two massive circular livestream video "portals" now connect New York City and Dublin, Ireland. The pair of portals, which became operational Wednesday, connects the two cities—separated by more than 3,000 miles—with a 24/7 live video link, reports USA Today. The New York City Portal is in Manhattan's Flatiron District, while the portal in Dublin is installed near O'Connell Street, the city's main street. The New York City Portal is a collaboration between the Simons Foundation, the Flatiron Nomad Partnership,and the New York City Department of Transportation’s Art Program. The so-called Portals project was founded and conceptualized by Benediktas Gylys, a Lithuanian artist, as a network of visual bridges that transcend borders and foster connection among people living thousands of miles apart. There are now four portals in operation, according to Portals.org. The artist has raised the possibility of rotating the livestream video amongst the four cities. So New Yorkers could see Dublin through their portal now, but soon they could be connected with people in Lithuania and Poland, where the original portals reside.

Government in Numbers

2,493%

The percentage increase in adult syphilis cases from the five-year median in 2022, according to the South Dakota Department of Health. More than 1,500 cases were reported that year—the highest rate of syphilis cases in the country at the time. It was a 90% increase from 2021. Syphilis is a bacterial infection most often spread through sex that can cause serious health problems without treatment and can be spread from mothers to unborn babies. Syphilis infections nationwide have climbed rapidly in recent years, reaching a 70-year high in 2022, according to the most recent data from the Centers for Disease Control and Prevention. That rise comes amid a shortage of penicillin, the most effective treatment, due to the nationwide increase in syphilis cases. The shortage is predicted to last until the end of this year. In the meantime, to curb the rise in cases, South Dakota is working with organizations to send sexually transmitted infection case managers out to visit those suspected of infection, reports the South Dakota Searchlight. They carry STI test strips, condoms and syringes of penicillin.