Waters of the United States and the Navigable Waters Protection Rule

The U.S. Environmental Protection Agency (EPA) published a revised Waters of the United States rule that took effect on June 22, 2020 — the Navigable Waters Protection Rule. The rule substantially rolls back federal protections established in 2008, and even some protections established prior to that time. It’s estimated 25% to 50% of Colorado streams, lakes, and wetlands could be impacted by this rule. Additionally, the change will impose significant burdens upon the State of Colorado. Colorado has relied on the federal government to protect these waters since Colorado does not have existing laws or regulations that allow state streams, lakes, and wetlands to be filled. 

The U.S. District Court for the District of Colorado previously granted the state a stay on implementing changes to the federal Waters of the United States rule. The stay meant that the federal government would continue using the more environmentally protective rule for permitting projects in Colorado.

On March 2, 2021, the 10th Circuit Court of Appeals reversed the stay of the Navigable Waters Protection Rule and the rule took effect in Colorado on April 26, 2021. Now that the stay was reversed, the department will continue to work with stakeholders on a solution that protects the beneficial uses of state waters no longer under federal jurisdiction.

On June 9, 2021, the EPA and Army Corps of Engineers announced their intent to initiate a new rulemaking process that would restore the protections in place prior to the 2020 Navigable Waters Protection Rule and to develop a new rule defining Waters of the United States. Until this years-long rulemaking process is complete and a new definition is established, an estimated 25% to 50% of Colorado streams, lakes, and wetlands will need state-level protection.

Stakeholder information

Meeting information and resources

Engagement overview

Now that the stay was reversed, the department will continue to work with stakeholders on a solution that protects the beneficial uses of state waters no longer under federal jurisdiction. The division held multiple stakeholder meetings between 2020 and 2021, and will schedule additional meetings during the General Assembly interim period.

Past meeting materials are available on the department’s public google drive

Meeting information

The department plans to host periodic stakeholder meetings during the interim period. Please sign up for email notifications to receive updates on our dredge and fill stakeholder meeting schedule.

Past meeting materials are available on the department’s public google drive

Other WOTUS resources

On April 15, 2019, the State of Colorado submitted the below comments on the draft proposed Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4154 (Feb. 14, 2019).

  • Comment Letter
  • Appendix 1 - Biological Importance of Ephemeral and Intermittent Streams and Non-Adjacent Wetlands in Colorado
  • Appendix 2 - More Information Regarding the Science of Tributaries

Contact

Please send questions or comments to cdphe.commentswqcd@state.co.us