Silverton is balancing the future of wetlands within town limits against a desperate need for housing in the high mountain town.

And the difficult work is playing out as state lawmakers wrangle with what wetlands should be protected in Colorado, and by whom, after a U.S. Supreme Court decision last year that removed oversight of some marshy areas and seasonal streams from the Environmental Protection Agency.

Trustees in the tiny town have been in this conversation since at least September 2022, when they adopted a new master plan that established a map for future development in Silverton and codified some of its values, including the desire to “provide a balance between the natural and built environment.”

Getting building permits beyond the historic core in Silverton is complex, with planners reviewing projects for their risk of avalanche, whether the homes will be used as vacation rentals and whether the new building is planned on the complex of wetlands, fens and peat bogs that fan out from the Animas River.

Now, regulating for risk to wetlands is more complex.

Of the 72.2 acres mapped and analyzed within town limits by an environmental consulting firm in 2023, some are “likely” to fall under federal purview but may not under the Supreme Court decision known as Sackett. Others on private land may or may not federally regulated. The state of Colorado may exercise enforcement discretion on wetlands that lost federal protection after the Supreme Court’s new ruling. And landowners seeking to develop a property supporting a known or suspected wetland must take it upon themselves to request Army Corps of Engineers approval and “seek guidance to determine if their project meets the state notification requirement guidelines,” the consultant’s report said.

The town before didn’t have very good a handle on its wetlands and designation on certain wetlands “termed out” during the Army Corps’ revolving review period, said Jim Harper, a town trustee and owner of the Grand Imperial Hotel. “So we didn’t have any verbiage in place – we didn’t have any definition of what a wetland is. Consequently it just fell between the cracks.”

Meanwhile, property owners were wanting to build in an area called Shrine Hill, on land that “by the looks of it,” was a wetland, Harper said. “It was at that point in time when (wetland designation) kind of came up for everybody. Not just a few folks in town hall but really the entire town: The Army Corps said, ‘yeah, yeah. That’s not a wetland. We don’t have any designation.’”

It turned out, wetlands were a touchy topic in the community. Silverton is in desperate need of housing and some believe that preserving certain wetlands could complicate that need.

At a trustee meeting in November 2022, advocates for the two sides spoke.

Brandon Gibson, a Shrine Hill property owner who wanted to build a single family home, told the trustees the Army Corps of Engineers had determined wetlands on his property did not fall under federal purview.

“There is some concern that this might be because of budget cuts or administration changes,” he said during the meeting. “But I’ve done, I think, four or five studies on the site in the last five years and all of them have come up saying this is nonjurisdictional wetlands,” meaning it does not fall under federal wetlands regulation.

But Jake Kurzweil, a hydrologist and associate director of water programs at the Mountain Studies Institute, who was representing “solely” himself and not the not-for-profit institute that focuses on sustainability in the San Juan Mountains, said the land Gibson wanted to build on was a wetland, even if it wasn’t federally protected. He suggested the board “protect and preserve wetlands while also trying to develop lands, whether it’s for affordable housing or not.”

Both wetlands and at least one peatland lie within Silverton’s town limits and are “critically important” for everything from habitat to hydrology to cleaning water of phosphorus and other metals in the watershed resulting from things like mining, explains Rodney Chimner, professor of wetland ecology in the College of Forest Resources and Environmental Science at Michigan Tech, who has done extensive restoration work in Silverton and the Animas River watershed.

They also act as “carbon sinks” which absorb more carbon than they release, and are therefore key to slowing the acceleration of climate change, Chimner told The Sun. They can act as fire breaks. They also store snowmelt or rainwater and slowly release water during the summer that maintains streams, which is good for fish habitat.” And they support everything from moose to elk to birds and amphibians as “small keystone ecosystems that have a huge impact on habitat,” he said.

A 2021 housing needs assessment illuminated Silverton’s dire need for more lodging.

Studies showed nearly half the housing stock was used solely for seasonal or vacation use and the top three ways employees were adjusting to lack of housing were camping, living in housing “in poor condition” and tolerating long commutes. Employers said housing in Silverton was unavailable to all job candidates. And the report concluded that at a minimum, to accommodate job growth projected by Region 9 Economic Development, Silverton would need 22 new units for permanent residents and 14 beds for seasonal surge capacity by 2024.

By 2023, some of the board members had been studying wetlands and discovered their importance. “Four months ago, when we had the two properties on the hill, I didn’t realize how important wetlands were to the environment and the ecosystem,” trustee Tyler George said at a July 10, 2023, board of trustees meeting. “I think it’s in our best interest to do everything we can to protect them.”

Olivia “Liv” Cella-Edwards, another trustee, added that even wetlands excluded from Clean Water Act protections were “still true wetlands with ecological functions.”

The board had realized it needed to take official measures to address the issue. So it drafted an emergency ordinance for the “Preservation of Health, Peace, and Safety” of Silverton residents, that amended the municipal code to establish wetland disturbance standards associated with building permitting and regulations.

The ordinance was meant to give the trustees something in the code “to help mitigate impacts of development of wetlands,” it said. The town also needed a clearer idea of what kind of wetlands it had, so it drafted another ordinance that imposed a six-month moratorium on issuing construction permits to allow a consultant to survey unmapped wetlands, evaluate previously mapped wetlands that may have been affected by the Sackett ruling and to evaluate previously mapped wetlands that were likely to be under federal jurisdiction. Then, based on what they found, the town could decide how to move forward.

One option before them is to join cities like Boulder in establishing their own wetlands regulations and policies. The more the better, says Chimner, because in the last 200 years, the United States has lost over half of its wetlands and all but 4% of its peatlands, the latter of which store 30% of all carbon released from the biggest polluters and are 8,000 to 10,000 years old in San Juan County alone.

“One other thing,” he said. “You can modify the designs (of developments) to not impact wetlands. Telluride built roads differently. In Minnesota, developers backfilled roads with rocks to allow subsurface drainage. Silverton can make these decisions. They have an opportunity if they agree to do the right thing for the wetlands.”

The debate continued.

Although trustees remained split on how to protect and preserve wetlands while also trying to develop lands, they voted to enact both of the ordinances. In July 2023 Ironwood Consulting began its wetland inventory and mapping project.

On Jan. 8, Ironwood presented the board with its preliminary findings.

On Jan. 22, while still debating the issue, the trustees decided to let the emergency ordinance expire by directing town staff to “take no further action.”

Afterward, “Folks in town were saying, ‘What the hell just happened? What the hell happened?’” Harper said.

But it wasn’t over.

On Feb. 26, amid more debate, the trustees directed staff to draft another moratorium ordinance, Town Administrator Gloria Kaasch-Beurger said. Nothing happened immediately, because “policy has to follow our town code with regards to noticing and process review requirements,” she added. “This issue is still going on and an update will be provided at the March 11 regular meeting.”

Meanwhile, Colorado lawmakers, looking to oversee hundreds of streams and wetlands left unprotected by Sackett v. EPA, are debating new protections in the 2024 legislative session.

One option would give the Colorado Department of Public Health and Environment regulating power, which it could use to cover a broad class of Colorado waters, including wetlands and peatlands, Alex Funk, director of water resources at the Teddy Roosevelt Conservation Partnership, told The Sun.

“There is a real opportunity (this session) for Colorado to provide some clarity once and for all with a program that is inclusive of all stakeholders,” Funk said.