Supreme Court’s Sackett ruling narrows federal reach; Colorado reviews options to protect wetlands

The Water Resources and Agriculture Review Committee heard an overview of federal wetlands law and Colorado’s response during an educational session that emphasized legal uncertainty and state options following the U.S. Supreme Court’s Sackett v. EPA decision.

Gabe Bridal, an attorney with Vranish and Reich, traced Clean Water Act permitting back to the act’s two programs — Section 402 for point-source discharges and Section 404 for dredge-and-fill — and summarized how Supreme Court decisions over decades have narrowed federal jurisdiction. "There has to be a continuous surface connection between the wetland and another water body," Bridal said, characterizing the Court’s two‑part test in Sackett and how it rejected the broader 'significant nexus' approach used in some prior decisions.

The change has practical consequences, Bridal said: adjacency and whether a human‑made structure severs a connection are now central legal questions. He explained that EPA and the U.S. Army Corps of Engineers subsequently promulgated revised rules removing the significant‑nexus language; those rules are the subject of pending litigation that focuses on how adjacency should be applied.

Nicole Rowan, director of the Water Quality Control Division at the Colorado Department of Public Health and Environment, described Colorado’s approach since the decision. Rowan said Colorado’s statutory definition of "state waters" predates recent federal changes and has long been broader than the federal definition. She said the state formed a 2023 task force, held sector meetings and adopted a July 2023 interim policy using enforcement discretion "to continue to protect Colorado waters but really make sure that ... construction activity and development can occur," while stakeholders consider long‑term options.

Rowan outlined the task force’s options: a short‑term reliance on enforcement discretion and three long‑term pathways, including full assumption of the federal Section 404 program and two state permitting approaches of differing scope. She emphasized that any state program would need clear exemptions and exclusions so regulated parties understand what does — and does not — require permitting.

Committee members pressed for greater legal certainty and asked whether the state Attorney General had opined on conflicts between Colorado’s long‑standing definition of state waters (in statute since the mid‑1960s) and the Supreme Court’s test; Rowan said no formal analysis had been reported to the committee. On the interim policy’s duration, she said it "does not have an expiration date" but is reviewed routinely and could be rescinded if a state permitting program is established.

Why it matters: wetlands and ephemeral streams perform water‑quality filtering, provide habitat and increase watershed resilience; Rowan noted Colorado has lost roughly half of its wetland acreage since the late 1800s. With federal scope narrowed, state choices could change which waters require permitting and which do not — affecting landowners, developers, conservation efforts and enforcement exposure.

What’s next: Rowan and other agency staff described ongoing stakeholder engagement and options analysis. The committee did not consider legislation at the meeting; presenters and staff said they are available for follow‑up briefings and that longer‑term policy choices are still under study.