State Wetland Protection Support

In 2023, the U.S. Supreme Court’s Sackett v. EPA decision significantly narrowed the scope of federal protections under the Clean Water Act, excluding many wetlands and intermittent or ephemeral streams from federal jurisdiction. This left a regulatory gap in Colorado, where state action was urgently needed to protect vulnerable waters.

ERG was tasked by the Colorado Department of Public Health and Environment (CDPHE) to strengthen state-level protections of wetlands and waterways. ERG helped implement Clean Water Policy 17 and provided multi-faceted support for development of a state dredge and fill program to regulate activities affecting wetlands and streams no longer covered by federal law. For example, ERG played a key role in drafting new state regulations and preparing CDPHE’s Wetland Program Development Grant, aligning with the U.S. Environmental Protection Agency’s (EPA’s) February 2023 Tribal, State, And Territory Wetlands Program Core Element Framework. As a result of ERG’s work, CDPHE was awarded a grant from EPA to support development of its dredge and fill program. ERG’s support was instrumental in the passage of House Bill 24-1379, making Colorado the first state to enact legislation restoring protections to wetlands and streams impacted by the Sackett ruling. ERG assisted CDPHE in establishing temporary authorization letter requirements mandated by the bill—work that involved reviewing U.S. Army Corps of Engineers (USACE) Colorado mitigation procedures, mitigation requirements from other states, USACE Regional Permit requirements, and Colorado-specific CWA Section 401 certification requirements. To streamline authorizations, ERG developed a temporary authorization application form designed to complement USACE’s Nationwide Permit Pre-Construction Notification Form. The form captures key information needed for CDPHE to evaluate dredge and fill project requests. ERG also created an electronic tracking system to monitor application details and authorization status. These tools will be integral to Colorado’s new dredge and fill program, ensuring continued protection for wetlands and streams not covered under federal law.