Cutting the Sacketts from Slack: How Relaxing the Clean Water Act forced Colorado to get Stricter

By: Noah Weiser

In response to the Supreme Court case Sackett v. EPA, 598 U.S. 651, 678 (2023), Colorado’s Governor Polis convened a task force to explore options to ensure Colorado’s waterways stayed protected from dredging and filling activities. The legislation’s intent is to ensure Colorado waters are protected from the repercussions of the Supreme Court’s ruling from Sackett.

In Sackett, the Supreme Court limited the scope of the Clean Water Act’s jurisdiction. U.S. at 678. The Sacketts owned property in Idaho and wanted to backfill some wetlands near their property. Id. at 662. The wetlands on the Sacketts’ lot were adjacent to a tributary, which fed into a non-navigable creek; the creek then fed into Priest Lake, an intrastate body of water. Id. at 663. The EPA concluded the Sacketts, by filling in their wetlands, would contaminate and pollute Priest Lake. Id. At the time, the EPA interpreted “waters of the United States” to include all waters that could impact interstate or foreign commerce in addition to wetlands adjacent to those bodies of water. Id. EPA leadership directed appropriate officials to assert jurisdiction over wetlands adjacent to non-navigable tributaries when those wetlands had a significant nexus to traditional navigable waters. Id. Both the District Court and the Ninth Circuit affirmed the EPA’s decision confirming that adjacent wetlands with a significant nexus to traditional navigable waters are protected under the Clean Water Act. Id.

The Supreme Court granted certiorari to determine the proper test for determining whether wetlands are “waters of the United States.” Id. The Supreme Court reversed the decision of the Ninth Circuit and held that the Clean Water Act only extends to wetlands indistinguishable from waters of the United States. Id. at 678. In their reasoning, the Supreme Court affirmed the Clean Water Act’s use of “waters” includes only relatively permanent, standing, or flowing bodies of water such as streams, oceans, rivers, and lakes. Id. at 671. This ruling will allow parties to dredge, drain, or fill in wetlands that are not constantly filled or connected to a permanent, navigable body of water that is important to commerce. See generally Sackett v. EPA.

In response to this ruling, Colorado has enacted a new law to regulate dredging and filling activities that impact the state’s waters. The new bill, HB-24-1379, directs the Water Quality Control Division to develop a dredge and fill authorization program and the Water Quality Control Commission to establish permitting and mitigation rules by December 31, 2025. Representatives Julie McCluskie, Karen McCormick, and Senators Dylan Roberts and Barbara Kirkmeyer sponsored the bill to protect and preserve Colorado’s wetlands.

The new bill acts as a protective supplement now that the Clean Water Act no longer protects wetlands and seasonal bodies of water. The bill focuses on avoiding and minimizing adverse impacts and requires parties that dredge or fill to compensate injured parties. Moreover, the bill incorporates guidelines pursuant to section 404(b)(1) of the federal Clean Water Act. The Water Quality Control Division must issue authorizations for the discharge of dredged or fill material into state waters from certain categories, even when individual impacts are minimal, yet cumulative effects may harm state waters and the environment. In addition, new management practices are required to protect isolated state waters, and projects cannot be authorized where the entire project’s unavoidable adverse impacts exceed one-tenth of an acre of wetlands or three-hundredths of an acre of a streambed. Overall, HB-24-1379 is an important piece of legislation to reaffirm Colorado’s commitment to protect and preserve its natural resources, specifically when the Supreme Court has narrowed the appropriate federal law.

After Sackett, the Supreme Court held that “any wetlands that do[] not connect at its surface to another body of federally protected water [will] not merit the same degree of protection.” As a result of this ruling, many of the mountain brooks and streams in Colorado are no longer federally protected. In Colorado, the state’s headwaters and many of the headwaters of Western rivers and rivers of the Great Plains are made up of streams that do not have year-round flow because, for a portion of the year, they are under snowpack. Furthermore, many Colorado wetlands are seasonal wetlands and wet meadows that flood in the spring and summer when the snow melts. After Sackett, these headwaters and seasonal wetlands were no longer protected; however, Colorado’s new legislation protects these ecosystems even if they are not permanently connected to bodies of water year-round. Experts estimate that ninety percent of fish and wildlife in Colorado rely on the state’s semi-permanent wetlands at some point in their lifecycle. Another expert’s estimated that forty-five percent of Colorado’s streams are intermittent and twenty-four percent are short-term in their life span, without Colorado’s new legislation this would have left two-thirds of Colorado waters outside of “waters of the United States’” protection.

HB-24-1379 serves as an important piece of legislation that protects Colorado’s ecosystems from over-development, pollution, and contamination. Protecting these waters proximately protects the dozens of rivers and millions of people who rely on Colorado’s waterways for tourism, construction, sanitation, and recreation activities.