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Regulate Dredge & Fill Activities in State Waters

Concerning the regulation of state waters in response to recent federal court action, and, in connection therewith, making an appropriation.
2024 Regular Session
Bill Summary

The bill requires the water quality control commission (commission) in the department of public health and environment (department) to promulgate rules by May 31 December 31 , 2025, as necessary to implement a state dredge and fill discharge authorization program (program) and requires the division of administration (division) in the department to administer and enforce authorizations for activities that will result in the discharge of dredged or fill material into state waters. The rules must focus on avoidance of, and minimization of adverse impacts and on compensation for the unavoidable adverse impacts of dredge and fill activity (activity) include application requirements, and be at least as protective as the guidelines developed pursuant to section 404 (b)(1) of the federal "Clean Water Act".

The bill establishes duties for the division in administering the program, as follows:

  • The division shall issue individual authorizations consistent with the rules promulgated by the commission;
  • The division shall issue general authorizations for the discharge of dredged or fill material into state waters from certain categories of activities that have minimal effects adverse impacts on state waters and the environment;
  • The division shall include compensatory mitigation requirements in all individual authorizations and in general authorizations where the division determines that the proposed discharge of dredged or fill material will result in greater than one-tenth of an acre of unavoidable adverse impacts to wetlands or greater than three-hundredths of an acre of unavoidable impacts to streams.
  • The division shall utilize the existing structure of preconstruction notifications in the nationwide and regional permits established by the United States Army Corps of Engineers, and issue including general authorizations to be effective for categories of activities that do not require preconstruction notification; and
  • The division may include conditions in a notice of authorization, on a case-by-case basis, to clarify the terms and conditions of a general authorization or to ensure that an activity will have only minimal individual and cumulative adverse effects impacts on state waters.
  • The division may establish guidance to assist in administering the dredge and fill discharge authorization program.
  • The division may, to the extent resources allow, establish one or more staff positions in the western slope region of the state to assist with dredge and fill program administration in that geographic area.

Compensatory mitigation is required in all individual authorizations and in general authorizations where unavoidable adverse impacts to wetlands will affect over one-tenth of an acre or, for streams, where unavoidable adverse impacts greater than the threshold established by the commission by rule will occur. Compensatory mitigation may be accomplished through the purchase of mitigation bank credits, an in-lieu fee program, or project-proponent-responsible mitigation.

Until the rules become effective and the division issues general authorizations under the rules :

  • The division's Clean Water Policy 17, "Enforcement of Unpermitted Discharges of Dredged and Fill Material into State Waters", continues to be effective;
  • For projects activities that do not qualify for enforcement discretion under the division's Clean Water Policy 17, the division may issue temporary authorizations for the discharge of dredged or fill material into state waters only under certain conditions; and
  • Temporary authorizations must include conditions necessary to protect the public health and the environment and to meet the intent of the bill.

The division may issue a temporary authorization for a period not to exceed 2 years.

The bill deems certain activities exempt and therefore does not require a discharge authorization for, or otherwise require regulation of, such activities. The bill also excludes certain types of waters from the bill's regulatory requirements.

The bill clarifies that "state waters" includes wetlands.

In current law, with certain exceptions, an applicant for any water diversion, delivery, or storage facility that requires an application for a permit, license, or other approval from the United States must inform the Colorado water conservation board, the parks and wildlife commission, and the division of parks and wildlife of its application and submit a mitigation proposal. The bill extends the same requirement to an applicant for any such facility that requires an individual authorization from the division.

For the 2026-27 state fiscal year and for each state fiscal year thereafter, the state treasurer shall transfer $248,304 from the general fund to the clean water cash fund. For the 2024-25 state fiscal year, the bill appropriates $747,639 to the department of public health and environment from the clean water cash fund. Any money not expended prior to July 1, 2025, is further appropriated to the department for the 2025-26 state fiscal year.

(Note: Italicized words indicate new material added to the original summary; dashes through words indicate deletions from the original summary.)

(Note: This summary applies to the reengrossed version of this bill as introduced in the second house.)


Became Law


Bill Text

The effective date for bills enacted without a safety clause is August 7, 2024, if the General Assembly adjourns sine die on May 8, 2024, unless otherwise specified. Details