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used by EPA and the Corps to determine the scope of federal Clean Water Act jurisdiction since the Rapanos decision, is no longer valid.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.