Waters of the United States and the Navigable Waters Protection Rule

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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.
 

Stakeholder information

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Meeting information and resources

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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 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

 

Contact

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