Why Colorado Should Evaluate Clean Water Act Section 404 Program Assumption

By: John Kolanz – February 2022

Published in the Colorado Environmental Law Journal

“The world hates change, yet it is the only thing that has brought progress.”
– Charles Kettering*

For over four decades, Colorado, like virtually every other state, has been content to allow the federal government to regulate the discharge of dredged and fill material into the waters within its borders. During this time, the United States Army Corps of Engineers (“Corps”) has dutifully navigated the Clean Water Act (“CWA” or “Act”) Section 404 program through the ever-intensifying challenges of Colorado’s complicated water rights system, its explosive population growth, and its competing interests in a limited resource, all against a background of seemingly constant turmoil over the Act’s reach. These challenges certainly help explain Colorado’s reluctance to jump into the Section 404 fray, but they also, paradoxically, constitute the very reasons the state may need to do just that.

Colorado has recently been contemplating the creation of a dredge and fill permitting program that would operate in addition to the Corps’ program. The effort, intended to fill a gap in federal protection for certain state waters, took most stakeholders by surprise, generating significant confusion and alarm. Despite the lukewarm reception for this limited gap filler program, the state should consider something bolder. This article explains why it is time for Colorado to engage in a comprehensive stakeholder process to reevaluate the merits of taking over full administration of the CWA Section 404 program from the federal government.

1 AZ QUOTES, https://www.azquotes.com/author/7948-Charles_Kettering (last visited Sept. 20, 2021).

John Kolanz