The Colorado Water Quality Control Commission recently approved Regulation 87, establishing a new state-level dredge and fill permitting program for projects throughout Colorado. This change introduces new permitting requirements that project teams must account for, especially as projects move from design into construction.
For many project teams, the immediate challenge is understanding the new rule and how it applies to projects already in design or nearing construction. Teams must now consider both federal and state jurisdictions, as waters no longer covered by federal regulations may fall under state oversight.
Why This Change Matters for Projects
Following the U.S. Supreme Court’s decision in Sackett v. EPA, federal jurisdiction under the Clean Water Act was narrowed. In response, Colorado created a state dredge and fill program to address impacts to certain state waters that are no longer federally regulated. As a result, features previously excluded from federal jurisdiction may now require state review and approval. For example, an ephemeral stream that no longer meets federal jurisdictional criteria may still be regulated under the state program, requiring permitting and mitigation.
For consultants, municipalities, utilities and developers, this introduces a new permitting layer that must be evaluated early in project planning.
What to Expect as the Program Rolls Out
Implementation of the program will be led by the Colorado Department of Public Health and Environment (CDPHE) and will occur in phases. Temporary authorizations are currently in place and serve as an interim mechanism while the state finalizes its broader framework. General authorizations are expected to take effect starting in September 2026 and will largely be based on conditions similar to federal nationwide permits. This structure is intended to provide continuity for teams familiar with federal processes.
In the meantime, teams should be prepared for:
Additional coordination with the state.
New or evolving documentation expectations.
Application timelines that may not yet be fully predictable.
Fees associated with state authorization.
Common Challenges and Practical Takeaways
Across projects, a consistent set of questions continues to emerge, including:
If it’s not federally jurisdictional, is a permit still required?
If an impact is temporary, does it still trigger state authorization?
How should state impacts and mitigation be handled when the U.S. Army Corps of Engineers has issued a Nationwide Permit verification without a jurisdictional determination?
What changes once general authorizations are in place?
These are valid considerations, and in many cases the answers depend on project-specific conditions. However, a consistent theme is that early evaluation and coordination help reduce downstream risk and schedule impacts.
Below is a list of key takeaways to help guide planning and coordination as requirements continue to evolve:
Do not assume lack of federal jurisdiction means no permitting is required.
Evaluate state requirements at the outset of project planning.
Build time into project schedules for coordination with the state.
Consider mitigation options early. This is especially important for projects with unavoidable permanent impacts, as established mitigation banks, such as the Park Creek Station Wetland Mitigation Bank, may provide a more predictable path while the state program continues to evolve.
Additional clarification is likely to emerge on how the state will handle different types of impacts and how the transition to general authorizations will affect project timelines. Staying engaged with the process and understanding how it applies to real projects will be critical moving forward.