Faced with uncertainty due to a U.S. Supreme Court decision and a Trump administration decree, Colorado is steering its own course when it comes to regulating and protecting the state’s waters and wetlands.
In a 2023 decision the Supreme Court sharply limited protections under the Clean Water Act.
Colorado, however, enacted its own, more comprehensive statute in 2024. House Bill 1379, requires state permits for any dredging or filling of wetlands, streams and rivers on state or private land.
The federal government – through the U.S. Army Corps of Engineers – retains the power to issue permits on federal land in Colorado and to oversee certain water projects. And on Jan. 25 in an executive order President Donald Trump called for emergency permitting powers under the act for energy facilities, which could affect Army Corps permits.
“We were the first state to pass our own state-level permitting regulations,” said Sen. Dylan Roberts, an Avon Democrat and bill co-sponsor. “The election was going on at this time and it was in the back of some people’s minds.”
“Wetland protections and regulations had swung pretty drastically from the Bush administration to Obama to Trump to Biden and now back to Trump,” Roberts said, “They were swinging back and forth for almost two decades.”
“This provides certainty here on the state level,” Roberts said. “People won’t have to worry about what happens next.”
The push for state rules started well before the campaign season. It was sparked by the Supreme Court’s ruling in Sackett v. EPA, a case in which an Idaho couple sued the Environmental Protection Agency when they were blocked from filling in a wetland on their property.
The 5-4 decision, written by Justice Samuel Alito, limited the scope of Clean Water Act protections, particularly to wetlands when it came to issuing permits to dredge and fill.
“Following Sackett, many streams, lakes, and wetlands in Colorado are at risk of irreversible harm,” House Bill 1379 said.
An array of projects requiring dredge and fill, including flood control, stream restoration, roads, housing, water development and transit, would no longer be regulated by the federal government, the bill said.
And so, legislators on both sides of the aisle began looking to craft state rules. But getting to near-unanimous passage of the legislation — the final House vote was 56 to 7 and it passed unanimously in the Senate — was not easy.
“There are always many voices in the water policy space in Colorado,” said House Speaker Julie McCluskie, a Vail Democrat and the bill’s prime sponsor. At the first stakeholder meeting to discuss the proposed legislation 400 people attended.
Balancing the needs of competing interests
The goal was to balance multiple, and sometimes competing interests, including the business community, developers, the agricultural community, water developers and environmentalists, while safeguarding water quality in the state, McCluskie said.
“We listened and tried to accommodate all those voices,” she said. The bill was amended in both the House and the Senate.
One of the first big debates was the scope of the state rules. “Business groups were pushing for only waters that lost protection under Sackett,” said Stuart Gillespie, an attorney with the environmental law group Earthjustice.
“But it was difficult to delineate just those gaps. The science very clearly shows you can’t protect a subset of water … and there was the risk of further rollbacks,” Gillespie said.
The lawmakers decided on a comprehensive rule. “Colorado is no longer beholden to changes in federal laws,” Gillespie said.
The law directs the Colorado Water Quality Control Commission to develop a dredge and fill authorization program for all waters on state and private land.
The foundation for that program is the current federal standard for permits, so-called Section 404 permits, issued by the Army Corp of Engineers. The legislation calls for the state rules for large projects to include an impact analysis, an alternative analysis, and a compensatory mitigation plan.
House Bill 1379 directs the commission to “establish a comprehensive dredge and fill program to protect state waters, no matter how the federal term “Waters of the United States” is defined in the future.”
“The final rulemaking of the state-led program is scheduled for December 2025, following an ongoing stakeholder process to obtain extensive public input,” commission spokesperson John Michael said in an email.
“Colorado remains committed to a balanced approach that safeguards our natural environment while allowing construction projects to proceed responsibly,” Michael said.
Smaller projects will be allowed to proceed while the rulemaking is underway, but large ones will have to wait for the new rules, Gillespie said.
The rules took on even more import when President Donald Trump issued an executive order on Jan. 25 Declaring a National Energy Emergency and calling on the Army Corp of Engineers to use the emergency permitting provisions to speed Section 404 permits for energy projects.
“The state program operates separately from the federal 404 permitting program and thus is not impacted by President Trump’s executive order directing federal agencies to expedite energy project approvals,” the commission’s Michael said.
Earthjustice’s Gillespie said, “if the Corps is really handing out permits without checking compliance to the Clean Water Act it could hurt Colorado, so the state will have to be vigilant.”
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