Waters of the United States and the Navigable Waters Protection Rule

The U.S. Environmental Protection Agency published a revised Waters of the United States (WOTUS) rule that took effect on June 22, 2020 — the Navigable Waters Protection Rule. The rule substantially rolled back federal protections that were in place for decades. It’s estimated 25% to 50% of Colorado streams, lakes, and wetlands could have been impacted by the rule. Additionally, the rule imposed significant burdens upon the State of Colorado. Colorado has relied on the federal government to protect these waters since Colorado does not have a permitting program to issue 
“dredge and fill” permits. 

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 WOTUS. 

On Sept. 3, the EPA announced that in response to a decision from the U.S. District Court for the District of Arizona that they are interpreting WOTUS using the pre-2015 regulatory regime until further notice. 

As long as the definition of WOTUS under the federal Clean Water Act protects our state waters, we do not plan to seek legislative authority for a state gap waters program. We will focus our efforts on supporting the federal agencies with their current rulemaking process and effort to find a durable solution and regulatory regime for WOTUS.

CDPHE and the Polis administration remain committed to ensuring that Colorado's waters are protected, and will reevaluate the need for any state-level action should the legal landscape change in the future.

Given the fluctuating definition of WOTUS over the past few years, we offer this guidance: if a project has a permit from the Army Corps of Engineers for waters that were WOTUS using the pre-2015 regulatory regime, the department does not plan to initiate any enforcement activities. For entities that received a jurisdictional determination from the Corps between April 26 and Sept. 3 that identified waters as non-jurisdictional under the 2020 Navigable Waters Protection Rule, we recommend either re-submitting an application to the Corps for a new jurisdictional determination to establish whether the project will impact WOTUS using the pre-2015 regulatory regime or just obtaining 404 permit coverage for dredge and fill activity in waters that are potentially WOTUS using the pre-2015 regulatory regime.