In a landmark move, the Colorado State Legislature has passed House Bill 1379, a pioneering state law aimed at regulating the discharge of dredge and fill activities in the state’s waters. This legislative action, taken on May 16, 2024, is a direct response to the United States Supreme Court’s decision in Sackett v. EPA, 143 S.Ct. 1322 (2023), which significantly narrowed the scope of waters protected under the federal Clean Water Act (CWA). With Colorado leading the charge, other states are expected to follow suit in addressing the regulatory gaps left by the Sackett ruling.
The Clean Water Act, the cornerstone of U.S. water pollution control, relies heavily on the term “waters of the United States” (WOTUS) to determine its jurisdiction. However, the CWA itself does not define WOTUS, leaving it to the Environmental Protection Agency (EPA) to establish a regulatory definition. Over the years, the definition has evolved through various regulatory actions and Supreme Court decisions, most notably Rapanos v. U.S. in 2006 and the recent Sackett ruling.
The Sackett decision marked a significant shift in the regulatory landscape. The Supreme Court, in a bid to provide clarity, adopted a narrower interpretation of WOTUS. The ruling limited the definition to include only relatively permanent bodies of water such as rivers, lakes, and streams, along with wetlands that have a continuous, unbroken surface connection to these waters. This effectively excluded many ephemeral streams, isolated wetlands, and intrastate waters that were previously protected under the CWA.
In response to the Sackett decision, Colorado’s H.B. 1379 aims to fill the regulatory void by establishing a state-level permitting program. The bill mandates that, except for certain exempted activities or excluded water types, no person may discharge dredged or fill material into state waters without obtaining a permit from the Colorado Department of Public Health and Environment (CDPHE). The bill’s definition of “state waters” is notably broad, encompassing “any and all surface and subsurface waters that are contained in or flow in or through this state, including wetlands.”
The legislation also provides detailed definitions for key terms such as “discharge of dredged or fill material,” “dredged material,” and “discharge of fill material.” These definitions are crucial for understanding the scope of activities regulated under the new law. For instance, “discharge of dredged or fill material” includes any addition of dredged or fill material into state waters, while “dredged material” refers to material excavated or dredged from these waters. The bill also outlines specific exclusions, ensuring that certain activities and water types, such as excavated ditches, artificial lakes, and prior converted cropland, are not subject to the new regulations.
The passage of H.B. 1379 is a significant step for Colorado, as it extends regulatory oversight to a greater number of waters and wetlands than the current federal definition of WOTUS. This move is seen as a proactive measure to protect the state’s water resources in light of the reduced federal protections resulting from the Sackett decision. Environmental advocates have lauded the bill, arguing that it will help safeguard Colorado’s diverse aquatic ecosystems and ensure clean water for future generations.
However, the new law is not without its critics. Some industry groups have expressed concerns about the potential for increased regulatory burdens and permitting costs. They argue that the broader definitions and expanded jurisdiction could complicate development projects and agricultural activities. Despite these concerns, the Colorado State Legislature’s decisive action underscores the state’s commitment to environmental protection and water quality.
As other states watch closely, Colorado’s H.B. 1379 could serve as a model for state-level water regulation in a post-Sackett era. The bill’s passage marks a pivotal moment in the ongoing effort to balance economic development with environmental stewardship, highlighting the critical role of state governments in filling regulatory gaps and protecting vital natural resources.