Click the link to read the article on the Audubon Rockies website (Nathan Boyer-Rechlin):

January 28, 2025

Colorado is in the midst of a nation-leading rulemaking for its state-waters protection program, established by HB24-1379: Regulate Dredge & Fill Activities in State Waters (HB1379) which Governor Polis signed into law on May 29th. This bill establishes a state regulatory program to permit dredge and fill activities that impact state waters not covered by the Clean Water Act (CWA). This encompasses removal, filling, or other alteration of wetlands and ephemeral streams from activities such as mining and infrastructure development. Audubon Rockies told the story of why Colorado needed new legislation following the Supreme Court’s Sackett Decision—which removed crucial wetland protections—and how the bill passed with bi-partisan support in our June 2024 blog post, “A Colorado Program the Colorado Way.”

The core of this program’s regulatory jurisdiction are ephemeral streams and isolated wetlands. Existing federal and state-managed regulatory programs tend to undervalue these types of streams and wetlands, and inadequately mitigate for loss of these habitats and their ecological functions. HB1379 has given Colorado the opportunity to lead the nation in developing a regulatory program that not only fills the gap left by Sackett, but effectively addresses impacts to these key habitats that birds, and humans, rely on. Although the bill set a strong framework for the regulatory program, the gains made during the legislative session could be minimized if the next step isn’t done well. That next step, the rulemaking process, is currently underway.

Anatomy of a Rulemaking

Most of us who grew up with the American public school system likely remember Bill, that “sad little scrap of paper” who only ever dreamed of becoming a law (revisit that Schoolhouse Rock clip for a trip down memory lane). However, what our schoolhouse rock education left out was the long road ahead once poor Bill finally achieves his dream. Sadly for him, it’s not over yet. In most cases, a bill that passes through the state or federal legislature is a sketch or outline which sets the structure and parameters for how a law will function. The rulemaking process fills in the color and detail. 

In our bill’s case, HB24-1379 outlines key requirements and structure for a state program to regulate dredge and fill impacts to state waters which are not covered under the Supreme Court’s current interpretation of the Clean Water Act. The bill directs Colorado’s Department of Public Health and Environment’s (CDPHE) Water Quality Control Commission (WQCC) to develop and promulgate rules detailing how the program will be administered by December 31, 2025. These rules will determine regulatory requirements for stream restoration projects; determine how permits are evaluated, including standards avoiding and minimizing impacts to state waters; and establish a compensatory mitigation program to ensure that all lost stream and wetland functions due to permitted activities are replaced. How these rules are written will determine how effectively the state program meets the bill’s objectives.

CDPHE began convening stakeholders, including Audubon and our partners, in September 2024.  They then released the first draft of new regulations on December 6th. CDPHE is holding monthly stakeholder meetings through November 2025 to build consensus on priorities and draft additional language. WQCC will begin the formal rulemaking process in August 2025, which will include a public comment period for the proposed rules and the rulemaking hearing will be held on December 8, 2025.

What’s at Stake?

The United States Geological Survey’s National Hydrography Dataset estimates that 24 percent of Colorado’s streams are ephemeral and 45 percent are intermittent. These streams provide key habitat for more than 400 bird species throughout Colorado and are vital for mitigating climate and drought impacts, protecting water quality in downstream riverways by capturing sediment and other pollutants, and regulating late season flows and stream temperatures.

One of the most critical components of a dredge and fill permitting program is compensatory mitigation. In the federal dredge and fill permitting program ((§) 404 of the CWA), which Colorado is modeling its program after, permittees must first avoid and minimize all impacts to regulated waters and then compensate for all unavoidable impacts. Wetland compensatory mitigation most commonly takes place through mitigation banks, where permittees purchase credits from a mitigation bank that has previously constructed wetlands. Mitigation can also be done through an in-lieu fee program or onsite, where the impacts are taking place, by the permittee.

While wetland mitigation has been a well-established practice for decades, stream mitigation has only become common in the last 20 years. Due to challenges unique to streams, and particularly ephemeral streams which are more challenging to create or replace through mitigation banks, stream mitigation has been largely ineffective at replacing the functions lost through dredge or fill impacts. One review of the efficacy of stream mitigation programs found that “existing methods often devalued partially degraded, small, and non-perennial streams and thus discouraged protection and restoration of these stream types.” Developing a compensatory mitigation program that effectively replaces the functions of ephemeral streams that are lost through unavoidable impacts is a key challenge this rulemaking will address.

HB24-1379 included three key provisions to ensure the program adequately protects ephemeral streams and isolated wetlands:

1. The rules must focus on avoidance and minimization of all adverse impacts [of permitted projects] and describe avoidance and minimization standards.
2. The rules must implement a compensatory mitigation program for all unavoidable impacts [of permitted projects]. Compensatory mitigation must compensate for all “functions of state waters that will be lost as a result of the authorized activity”
3. The rules must include an exemption [from permitting] for stream restoration projects in ephemeral streams that are designed solely for ecological lift. Ecological life refers to improvement in the biological and/or hydraulic health of the stream.

While the first draft regulation has been released, many of the sections of the rules that will address these issues are still under development.

Better Together – Working Collaboratively for the Environment

Audubon and our partners have been actively engaged with CDPHE through their stakeholder engagement processes to advocate for strong rules in these three areas. In November, Audubon along with 10 other conservation organizations contributed and signed on to a letter to CDPHE detailing our priorities. This coalition, Protect Colorado’s Waters, also submitted specific feedback on the draft regulations in early January and are continuing to be engaged in advocating for strong rules that ensure avoidance and minimization of wetlands impacts and effective mitigation when needed. Our priorities also include ensuring that qualified stream restoration projects, designed for ecological lift, can continue without undue regulatory burden.

While Audubon and our partners secured a major victory for birds and people with the passing of HB24-1379, our bill’s journey is not done yet. If CDPHE can develop and promulgate rules for this program that ensure that permitted projects are the least damaging available alternative, ensure any lost functions are replaced through mitigation, and streamline permitting for voluntary stream restoration projects, then Colorado’s program will be the first of its kind to effectively protect these vital habitats. To stay engaged and attend future stakeholder meetings, visit CDPHE’s dredge and fill engagement website.