On May 16, 2024, the Colorado State Legislature passed House Bill 1379, a state law intended to regulate the discharge of dredge and fill activities in waters of the state. H.B. 1379 was passed directly in response to the United States Supreme Court ruling in last year’s Sackett v. EPA, 143 S.Ct. 1322 (2023), which limited the number of waters covered by the federal Clean Water Act (“CWA”). While Colorado is the first state to pass such a law, other states are expected to follow.
Background: CWA, Sackett, & Waters under WOTUS
The Colorado State Legislature introduced and passed H.B. 1379 in response to the Supreme Court’s decision in Sackett, and the Environmental Protection Agency’s (“EPA”) subsequent revision of the regulatory definition of the CWA term “waters of the United States.” The CWA is the primary federal law regulating water pollution in the United States. It does so in part by implementing a permitting program which prohibits the unpermitted discharge of pollutants from a point source into any waterbody classified as a “water of the United States” (“WOTUS”). Although WOTUS is a crucial term for determining which waterbodies are subject to the CWA’s permitting jurisdiction, the text of the statute does not contain a formal definition of WOTUS. Instead, Congress left it to EPA to craft a regulatory definition for the term.
Over the years, there have been numerous changes to the definition of WOTUS due in part to regulatory actions from EPA and decisions issued by the Supreme Court. In 2023, the definition of WOTUS was significantly altered following the Supreme Court’s ruling in Sackett v. EPA. That case centered around a previous Supreme Court decision, Rapanos v. U.S., 547 U.S. 715 (2006), which focused on the degree to which wetlands could be included in the definition of WOTUS. In the Rapanos decision, the Court failed to reach a majority opinion and instead issued a plurality opinion authored by Justice Scalia and a concurring opinion authored by Justice Kennedy. Each opinion proposed a different test to determine whether a wetland should be considered a WOTUS.
In the plurality opinion, the Justices concluded that the definition of WOTUS should include only those waters that are “relatively permanent, standing, or continuously flowing” such as streams, rivers, and lakes. Then, only those wetlands that share a continuous, unbroken surface connection with such waters would fall under CWA permitting jurisdiction. The concurring opinion took a different approach. There, Justice Kennedy concluded that wetland jurisdiction should be determined on a case-by-case basis, based on whether the wetland possessed a “significant nexus” to a recognized WOTUS. According to Justice Kennedy, a significant nexus exists when a wetland “either alone or in combination with similarly situated lands in the region, significantly affect[s] the chemical, physical, and biological integrity of other covered waters[.]”
Following the Supreme Court’s decision in Rapanos, courts and the EPA tended to apply Justice Kennedy’s significant nexus test either on its own or in combination with the relatively permanent standard from the plurality opinion. In the years since Rapanos was issued, different presidential administrations have attempted to redefine WOTUS to include the Court’s decision but have struggled to find a lasting definition. In an effort to resolve many of the questions left after Rapanos, the Supreme Court agreed to hear Sackett which directly asked the Court to revisit the case. Specifically, the plaintiffs in Sackett asked the Court to reconsider the scope of wetlands jurisdiction under the CWA and to formally adopt the relatively permanent standard and overturn the significant nexus test.
In a decision issued in May 2023, the Supreme Court formally adopted the relatively permanent standard and rejected the significant nexus test. The Court in Sackett held that the definition of WOTUS should be limited to include only open, flowing bodies of water such as rivers, oceans, lakes and streams, and those wetlands that are “indistinguishable” from such waters due to sharing an unbroken surface water connection. Shortly after the Court issued the Sackett decision, EPA released a new WOTUS definition that was updated to reflect the recent ruling. Under the new WOTUS definition, the categories of covered waterbodies were largely limited to those waters that either met the relatively permanent standard or could be used to facilitate foreign and interstate commerce. The only wetlands included in the new WOTUS definition were those that shared a continuous, unbroken surface water connection with such waters. To learn more about the update WOTUS definition, click here. More information on the Sackett decision is available here.
While Sackett and the updated WOTUS definition resolved many of the questions that stemmed from the Rapanos decision, many waters which had previously been covered by the CWA are no longer regulated under the new definition. Wetlands that do not share a direct surface water connection with a WOTUS, ephemeral streams, and numerous intrastate waters that were once regulated by the CWA are considered no longer jurisdictional. This has left some states looking to enact their own permitting programs to regulate pollution in waters that were once covered by the CWA. Colorado has become the first state to adopt such a program.
New Colorado Statute
According to the text of Colorado’s H.B. 1379, the bill is a direct response to the Supreme Court decision in Sackett and is meant to cover certain state waters and wetlands that are no longer regulated under the CWA. The bill notes that this is a first-of-its-kind program for Colorado and will specifically focus on requiring permits for the discharge of dredge and fill material.
H.B. 1379 provides that, “except when conducting an exempted activity […] or when discharging into an excluded type of water,” no person may discharge dredged or fill material into state waters without first obtaining either an individual or general permit issued by the Colorado Department of Public Health and Environment (“CDPHE”). According to the text of the bill, “state waters” is broadly defined to include “any and all surface and subsurface waters that are contained in or flow in or through this state, including wetlands[.]” In turn, “wetlands” are defined as “areas that are inundated or saturated by surface or groundwater at a frequency and for a duration sufficient to support, under normal circumstances, a prevalence of vegetation typically adapted for life in saturated soil conditions.” While there are a variety of waters that are specifically excluded from H.B. 1379’s definition of state waters – including certain types of excavated ditches, artificial lakes and ponds, artificially irrigated areas, groundwater, water-filled depressions, groundwater, and prior converted cropland – it is still much broader than the current definition of WOTUS. Based on this, it appears that H.B. 1379 will extend jurisdiction to a greater number of Colorado waters and wetlands than the CWA.
Under H.B. 1379, “discharge of dredged or fill material” is defined to mean “any addition of dredged or fill material into, including redeposit of dredged or fill material other than incidental fallback within, state waters.” From there, the bill goes on to define “dredged material” as “material that is excavated or dredged from state waters” and “discharge of fill material” as “the addition of fill material into state waters” including placement of material that is necessary for construction of a structure, the building of any structure or impoundment, fill to develop a site for residential, industrial or other uses, construction of dams, levees, or liners, and any placement of slurry, tailings, or similar mining materials. As with the “state waters” definition, there are various activities which are specifically excluded from the definitions for dredged and fill material. Those exclusions include: incidental fallback; activities that involve only the cutting or removing of above ground vegetation such as mowing or using a chainsaw; the placement of pilings; and any plowing, cultivating, seeding, or harvesting of crops for the production of food or fiber.
Along with issuing individual permits, H.B. 1379 would allow the CDPHE to issue general permits for activities that are similar in nature, have a similar impact to water quality, and in general cause only minimal adverse impacts to state waters. The categories of activities covered by such general permits must “correspond” with both nationwide and regional general permits issued pursuant to the CWA. General permits will only cover those dredge and fill activities that have a minimal impact to state waters. Projects that result in “unavoidable adverse impacts” that exceed one-tenth of an acre of wetlands or three-hundredths of an acre of streambed cannot be authorized by a general permit. Such projects must be authorized by an individual permit in order to proceed.
Importantly, H.B. 1379 outlines numerous activities that are exempt from any permitting requirements. Many of these exemptions specifically include agricultural activity. For example, H.B. 1379 excludes “normal farming, silviculture, and ranching activities” from its permitting requirements. The bill describes normal farming activities to include plowing, seeding, cultivating, minor draining, application of “on-farm chemicals,” harvesting, and soil and water conservation practices. The construction and maintenance of farm ponds, stock ponds, farm lagoons, and irrigation ditches are also excluded from permitting requirements, as is the construction and maintenance of farm roads. Other exclusions include general maintenance of various water infrastructure; construction of temporary sediment basins on a construction site; emergency response activities; maintenance of water reuse facilities; wildlife habitat management activities; and any project authorized by a CWA permit that was authorized prior to the Supreme Court issuing its decision in Sackett.
Going Forward
H.B. 1379 is currently awaiting signature from the Governor of Colorado. While it is still possible the Governor could veto the bill, H.B. 1379 cleared the Colorado State Legislature with near-unanimous support. Once the bill formally becomes law, the Colorado Water Quality Control Commission will have until December 31, 2025, to adopt the rules and regulations necessary to implement H.B. 1379’s permitting program. Once those rules are finalized, the CDPHE will begin issuing permits pursuant to the new program. Starting in 2026, anyone discharging dredge or fill material into a water in the State of Colorado will need to determine whether they need a state dredge or fill permit to authorize their project.
While Colorado is the first state to create its own water permitting program in response to the Sackett decision, it is likely that other states will follow. Such programs are likely to regulate more strictly than the federal CWA, and agricultural producers in states that are considering adopting their own water permitting programs should remain aware of any new requirements.
To read the text of H.B. 1379, click here.
To read the Supreme Court’s decision in Sackett v. EPA, click here.
To read the text of the CWA, click here.
For more CWA resources from the National Agricultural Law Center, click here.