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Waters of the United States (WOTUS)

The Clean Water Act gives the EPA and the United States Army Corps of Engineers the authority to define "waters of the United States" in regulations. "Waters of the United States" refers to bodies of water such as rivers, lakes, and streams that the federal government protects. In Colorado (and 47 other states), the Army issues 404 permits to protect the waters of the United States from dredge and fill activities. 

On May 25, 2023, the Supreme Court issued a decision in Sackett v. EPA that reinterprets the scope of federal jurisdiction under the Clean Water Act. The Court’s decision holds that the significant nexus test, used by EPA and the Corps to determine the scope of federal Clean Water Act jurisdiction since the Rapanos decision, is no longer valid. The Court articulated a new jurisdictional test for adjacent wetlands that extends Clean Water Act jurisdiction to only those wetlands that are as a practical matter indistinguishable from waters of the United States. 

This requires a party asserting jurisdiction over adjacent wetlands to establish first that the adjacent body of water constitutes “waters of the United States,” which the Court defines as “a relatively permanent body of water connected to traditional interstate navigable waters.” Second, a party asserting jurisdiction must also show that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends, and the “wetland” begins. 

Although the Court’s decision directly addresses only the scope of “adjacent wetlands,” its description of “waters of the United States” as including only relatively permanent bodies of water connected to traditional interstate navigable waters will likely result in ephemeral and intermittent waters, which constitute the majority of Colorado’s stream miles, being outside the scope of federal Clean Water Act jurisdiction.

This Supreme Court decision will result in less water quality protections for Colorado. These water quality protections have been in place since the 1980s and the division is engaging stakeholders on a draft policy for enforcement of unpermitted dredged and fill material into state waters that is intended to continue protecting Colorado’s waters under Colorado law. 

Stakeholder information

How to get involved

 

Please sign up for email notifications to receive updates on Waters of the United States and related meetings.

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

 

On November 13, 2024, the State of Colorado submitted comments on the proposed Definition of "Waters of the United States" Under the Clean Water Act, 79 Fed. Reg. 63594 (Oct. 24, 2014).

On April 15, 2019, the State of Colorado submitted the comments below 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

On September 3, 2021, the State of Colorado submitted the following comment letter and documents to the EPA regarding their notice of public meeting dates and solicitation of pre-proposal feedback

  • Comment letter
  • Appendix 1 - Biological Importance of Ephemeral and Intermittent Streams and Non-Adjacent Wetlands in Colorado with 2021 addendum
  • Appendix 2 - More Information Regarding the Science of Tributaries
  • Attachment 3 - Considerations in Response to the 2020 Navigable Waters Protection Rule
  • Attachment 4 - Summary of gap waters and stakeholder discussions

On February 27, 2022, the State of Colorado submitted comments on the proposed Revised Definition of "Waters of the United States," 86 Fed. Reg. 69372 (Dec. 7, 2021). 

 

 

The division held a stakeholder process in 2020 and 2021 to evaluate the Navigable Waters Protection Rule impacts and to identify solutions. Below are links to the developed stakeholder materials. 

 

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