Colorado took a major step last week to protect wetlands and streams by finalizing rules for a new state-run permitting program.
The new ‘dredge-and-fill’ rules address a gap by the U.S. Supreme Court’s Sackett decision two years ago, which drastically shrunk the number of waterways eligible for federal protections. The ruling left millions of acres of wetlands and miles of streams nationwide vulnerable to pollution.
Under the new rules, businesses or landowners must obtain a state permit to dig ditches or fill wetlands that no longer qualify for federal protection.
Stu Gillespie, a staff attorney at Earthjustice in Denver, said the program creates a critical safety net, protecting not only Colorado’s waters but also those downstream.
“I think this is hopefully a powerful message to other states that they can and should do this, and we can all be in this together and protect our collective waters,” he said.
Colorado’s Water Quality Control Commission finalized the regulations to implement the first-in-the-nation law signed in 2024. New Mexico passed similar legislation this year and its environment department expects to hold a rulemaking hearing next summer.
David Nickum, executive director of Colorado Trout Unlimited, said the state action comes at a crucial time. Last month, the Environmental Protection Agency (EPA) proposed new definitions that could further narrow which waterways receive protection under the Clean Water Act.
“They're even worse, perhaps, than we had feared,” he said.
According to an EPA analysis, about 97% of wetlands in Colorado could be excluded from federal protections under the proposal.
“The way that we see things going, the state's going to have to take on even more protections for our waters,” said Gillespie.
Even fewer wetlands would remain under federal jurisdiction in Arizona, Wyoming and Nevada, though an agency spokesperson noted the data may not be precise. The EPA is accepting public comment on the proposal through Jan. 5.
Crafting Colorado’s new permitting rules
While the law behind Colorado’s permitting program reflected a compromise between environmental groups and industry, debates over how the program would work continued into early December hearings.
The Water Quality Control Commission held 48 meetings over the course of a year, and in the end, voted 9-0 to adopt the rules. Stakeholders agreed the commission considered a wide range of views.
“While we didn't agree with every component of the final program, there were a number of decisions that really kept the rule grounded in statute and avoided unnecessarily broad or burdensome requirements,” said Carly West, the executive director of the American Petroleum Institute’s (API) Colorado chapter.
API and other oil and gas groups remain concerned about permit fees. Still, they supported the commission’s decision to exclude a “public interest review,” in which environmental groups had wanted to evaluate the potential community impacts from proposed projects.
Despite that concern, water quality advocates said the program marks an important step forward.
“This regulation helps protect Colorado's waterways that provide our state with clean drinking water, help sustain our state's outdoor recreation economy and conserve wildlife habitat,” said Carrie Sandstedt, a senior officer with Pew Charitable Trusts’ U.S. conservation project.
Colorado will formally launch the permitting program in February.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio, Boise State Public Radio in Idaho, KUNR in Nevada, KUNC in Northern Colorado, KANW in New Mexico, Colorado Public Radio, KJZZ in Arizona and NPR, with additional support from affiliate newsrooms across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting and Eric and Wendy Schmidt.
