A pivotal webinar hosted on February 11 by Audubon and the Healthy Headwaters Working Group (HHWG) brought together hundreds of environmental practitioners, conservationists, and stakeholders to demystify Colorado’s Regulation 87, a critical component of the state’s dredge and fill program. This comprehensive online session, featuring insights from Annette Quill and Kelly Morgan of the Colorado Water Quality Control Division (WQCD), offered an essential roadmap for navigating the complexities of permitting, exemptions, and inter-agency coordination pertinent to stream and wetland restoration projects across the state. The initiative underscores a collaborative commitment to protecting Colorado’s invaluable aquatic resources in an evolving regulatory landscape.
The Genesis of Regulation 87: Responding to Federal Shifts
Regulation 87, officially known as Colorado’s Dredge and Fill Program, represents a significant evolution in the state’s approach to water quality and aquatic ecosystem protection. Its genesis is deeply rooted in recent shifts in federal jurisdiction over "Waters of the United States" (WOTUS) under the Clean Water Act. For decades, the U.S. Army Corps of Engineers (USACE) regulated the discharge of dredged or fill material into WOTUS under Section 404 of the Clean Water Act. However, a series of Supreme Court decisions, notably Rapanos v. United States (2006) and more recently Sackett v. Environmental Protection Agency (2023), significantly narrowed the scope of federal oversight, particularly impacting isolated wetlands, ephemeral streams, and other aquatic features lacking a clear "significant nexus" to traditionally navigable waters.
This narrowing of federal jurisdiction created a regulatory gap, leaving many vital state waters vulnerable to unregulated degradation. Recognizing the imperative to protect these resources, Colorado, like several other states, moved to establish its own comprehensive dredge and fill program. Regulation 87 was promulgated to fill this void, ensuring that activities involving the discharge of dredge or fill material into "state waters" not covered by federal jurisdiction would still be subject to environmental review and permitting. The regulation became effective to safeguard the ecological integrity and hydrological functions of streams, wetlands, and other aquatic environments that are crucial for Colorado’s water supply, biodiversity, and resilience against climate change impacts. The WQCD, under the Colorado Department of Public Health and Environment (CDPHE), is the lead agency for implementing and enforcing Regulation 87, demonstrating the state’s proactive stance in environmental stewardship.
Colorado’s Water Landscape and the Imperative for Protection
Colorado, an arid western state, relies heavily on its intricate network of streams, rivers, and wetlands, which serve as the headwaters for major river systems supplying water to millions across the Southwest. These aquatic ecosystems provide indispensable services, including water filtration, flood attenuation, groundwater recharge, and critical habitat for a diverse array of fish, wildlife, and migratory birds. For example, Colorado is home to over 100 species of fish, many of which depend on healthy stream habitats, and its wetlands support countless bird species, acting as vital stopovers along migratory flyways.
Despite their ecological significance, Colorado’s wetlands and streams face ongoing threats from development, agricultural expansion, and climate change. Historically, the state has lost a significant percentage of its original wetland acreage. While precise, up-to-date figures are often challenging to compile, national trends indicate substantial wetland loss over the past century. Protecting and restoring these diminishing resources is not merely an environmental concern but an economic and public health necessity. Healthy aquatic systems bolster water security, support agricultural productivity, and enhance recreational opportunities, contributing significantly to Colorado’s economy. The implementation of Regulation 87, therefore, is not just a regulatory formality but a strategic investment in the state’s natural capital and long-term sustainability.
The February 11 Webinar: A Deep Dive into Compliance
The recent webinar, a collaborative effort between Audubon’s Rockies office, which champions healthy rivers and watersheds, and the Healthy Headwaters Working Group (a coalition dedicated to protecting and restoring Colorado’s headwaters), served as a critical educational platform. It aimed to clarify the practical implications of Regulation 87 for on-the-ground restoration practitioners, who often grapple with navigating complex environmental regulations. The event’s timeliness was underscored by the recent implementation phase of Regulation 87, leaving many with questions regarding compliance pathways.
The session, expertly guided by WQCD’s Annette Quill and Kelly Morgan, provided a structured walkthrough of the regulation. Abby Burk, from Audubon, and Jackie Corday from the HHWG, facilitated the discussion, ensuring that practitioner-specific concerns were addressed. The webinar commenced with a welcome and introductions, setting the stage for an in-depth exploration of Regulation 87’s background and implementation. A significant portion of the initial segment focused on defining what constitutes "dredge and fill" activities under the regulation and outlining the various authorization pathways available.
A key segment of the webinar delved into the specifics of obtaining different types of authorizations:
- Temporary Authorizations: These are typically for projects with minimal and short-term impacts. The WQCD representatives explained the requirements and streamlined process for these authorizations, which are often sought for smaller-scale restoration activities or those involving limited disturbance.
- General Authorizations: Designed to cover categories of activities that are similar in nature and have minimal individual and cumulative adverse environmental effects. The webinar highlighted the "Isolated State Waters General Authorization" as an existing pathway and announced the state’s plans to develop additional general authorizations. These are crucial for streamlining the permitting process for common restoration practices, such as certain types of bank stabilization or habitat enhancement projects, thereby reducing administrative burdens while maintaining environmental safeguards. A notable point was how Colorado intends to leverage federal permits; if a project qualifies for a federal general permit (e.g., a Nationwide Permit from the USACE), it may also be covered by a corresponding state general authorization, promoting inter-agency efficiency.
- Individual Authorizations: Reserved for projects with potentially more significant or unique impacts that do not fit the criteria for temporary or general authorizations. These require a more detailed review process, ensuring thorough assessment of potential environmental effects and the development of appropriate mitigation strategies.
- Certification of Project Completion: The webinar also clarified which projects require a formal certification of completion, ensuring that authorized activities are carried out as planned and environmental conditions are met post-construction.
Crucial Exemptions and Exclusions for Restoration Efforts
Perhaps one of the most anticipated segments for restoration professionals was the detailed discussion on exemptions and exclusions from Regulation 87. The WQCD and Audubon representatives emphasized that the regulation is designed to protect aquatic resources without unduly hindering beneficial restoration work. Understanding these provisions is critical for efficient project planning and implementation.
Key exemptions and exclusions highlighted included:
- Voluntary Restoration in Ephemeral Streams: This is a particularly significant exemption, recognizing the ecological value of ephemeral streams—those that flow only in direct response to precipitation—and encouraging voluntary efforts to restore their function without triggering extensive permitting requirements. Such streams, while often dry, play a crucial role in hydrological connectivity and sediment transport.
- Maintenance of Managed Wetland Complexes: Activities related to the routine maintenance of existing, managed wetland complexes, such as those within wildlife refuges or conservation areas, are often exempt. This provision acknowledges the ongoing management needs of these complex systems to maintain their ecological benefits.
- Wildlife Habitat Management Activities: A broad exemption covers activities primarily aimed at enhancing wildlife habitat. This is vital for organizations focused on biodiversity conservation, allowing them to undertake necessary habitat improvements without excessive regulatory hurdles, provided these activities are carefully planned and executed.
- Specific Excluded Waters: The webinar clarified that 11 specific types of waters are entirely excluded from Regulation 87, meaning projects impacting these waters would not require state authorization. Practitioners were advised to consult the regulation’s specific language to determine if their project falls within these exclusions.
- Exemption & Exclusion Request Form: To further assist practitioners, the WQCD introduced a dedicated form for requesting official determinations on whether a project qualifies for an exemption or exclusion, providing a clear pathway for certainty.
This focus on exemptions for restoration work reflects a nuanced approach by Colorado regulators, aiming to distinguish between activities that degrade aquatic resources and those that actively improve them. The goal is to incentivize and facilitate ecological restoration while ensuring that all interventions are undertaken responsibly.
Interplay with Federal Regulations and Other Jurisdictions
A recurring theme in the webinar, and a major point of clarification for practitioners, was the intricate relationship between Colorado’s Regulation 87 and existing federal environmental laws, particularly Section 404 of the Clean Water Act, administered by the USACE. Projects that impact WOTUS, as federally defined, still require a Section 404 permit. Regulation 87, therefore, primarily applies to "state waters" that fall outside this federal jurisdiction. The webinar explained that some projects might require both federal and state authorizations, necessitating careful coordination. Speakers from WQCD detailed how the state program coordinates with federal agencies, emphasizing the importance of early consultation with both the USACE and CDPHE to determine applicable permits.
Questions from attendees also touched upon other jurisdictional complexities:
- Projects on Federal Land: The webinar clarified whether projects on federal lands are subject to state permitting. Generally, federal agencies are expected to comply with state environmental laws, but specific inter-agency agreements or federal preemption might apply in certain cases, necessitating direct consultation with both federal land managers and state regulators.
- Water Rights Considerations: Colorado’s unique system of water rights, governed by the "prior appropriation" doctrine, is a critical aspect of any water-related project. The webinar addressed how Regulation 87 interfaces with existing water rights, reassuring practitioners that the permitting process for dredge and fill activities does not supersede or alter established water rights but rather regulates the physical alteration of the streambed or wetland.
- County-Specific Regulations: The discussion also briefly covered how state regulations interact with local, county-specific ordinances, advising practitioners to always check for additional local requirements that might apply to their project sites. This multi-layered regulatory environment underscores the need for comprehensive due diligence in project planning.
Enhancing Restoration Outcomes and Best Practices
A significant portion of the Q&A segment focused on how Regulation 87 is expected to improve restoration outcomes in Colorado. WQCD representatives expressed confidence that by bringing previously unregulated activities under a consistent framework, the state can prevent piecemeal degradation of aquatic resources and ensure that restoration projects adhere to best management practices. The regulation provides a mechanism for environmental oversight, promoting accountability and encouraging scientifically sound restoration approaches.
Best practices for consultation with CDPHE were strongly emphasized:
- Early Engagement: Practitioners were urged to initiate discussions with CDPHE/WQCD early in the project planning phase. This proactive approach can help identify potential permitting needs, clarify exemptions, and address concerns before significant resources are committed.
- Comprehensive Project Information: Providing detailed project descriptions, including maps, design plans, and impact assessments, facilitates a more efficient review process.
- Utilizing Available Resources: The webinar itself, along with online guides and contact information provided by WQCD, are intended as primary resources for practitioners.
The webinar concluded by reinforcing the idea that Regulation 87, while adding a new layer of oversight, is ultimately a tool for better environmental stewardship. By clarifying the regulatory pathway for restoration, it empowers practitioners to undertake vital work with confidence, ensuring that Colorado’s aquatic ecosystems are protected for future generations.
Stakeholder Perspectives and Future Outlook
The enthusiastic participation in the webinar, drawing a diverse audience from across the state, highlighted the strong interest and need for clear guidance on Regulation 87. For conservation groups like Audubon and the HHWG, the regulation represents a critical step in safeguarding Colorado’s natural heritage. From their perspective, the program helps close loopholes that could lead to the degradation of essential habitats and water sources. The collaboration with state agencies in hosting such informational sessions is vital to bridge the gap between policy and practice, ensuring that the regulation facilitates rather than impedes beneficial conservation work.
Restoration practitioners, while initially concerned about potential new administrative burdens, generally welcomed the clarity provided by the webinar. The detailed breakdown of exemptions and general authorizations was particularly reassuring, signaling that the state intends to streamline processes for environmentally beneficial projects. The ability to request official determinations on exemptions is seen as a practical measure to reduce uncertainty.
Looking forward, the WQCD plans to continue developing additional general authorizations, further simplifying the permitting process for common restoration activities. Ongoing educational outreach and adaptive management of the regulation will be crucial to ensure its effectiveness. The dialogue initiated by this webinar is expected to foster continued collaboration between state regulators, environmental organizations, and on-the-ground practitioners, all working towards the shared goal of protecting and enhancing Colorado’s vital stream and wetland ecosystems. The proactive engagement demonstrated by all parties involved underscores a collective commitment to maintaining the ecological health and resilience of the state’s natural resources in the face of environmental challenges.