Colorado River District warns state dredge-and-fill rules could expand scope of regulation beyond federal precedent

Colorado River District officials told Rio Blanco County commissioners on May 20 that Colorado’s planned rulemaking to regulate dredge-and-fill activities could reach beyond waters historically regulated under federal law, creating new regulatory burdens for landowners and local projects.

“Several years ago, the Supreme Court issued a ruling in the Sackett case that substantially narrowed … what is Waters of The United States,” Andy Mueller, general manager of the Colorado River District, said. He and Peter Fleming, the district’s general counsel, described how Colorado has proposed that the state regulate “gap waters” left outside federal jurisdiction and is moving into a rulemaking phase under the Colorado Department of Public Health and Environment (CDPHE).

The River District officials said they supported carrying forward agricultural exemptions and urged that activities previously handled through broad federal authorizations remain subject to streamlined, nationwide-style permits to avoid costly, individualized permitting. “To the extent that you’re regulating beyond what was previously covered … anything that previously was covered under that type of authorization should continue to be covered under that to make it less burdensome,” Fleming said.

Why it matters: The River District represents 15 western Colorado counties and said the proposed rules could introduce regulatory uncertainty and higher transactional costs for irrigation, ditch maintenance and rural development. Mueller told commissioners the district’s board had directed staff to engage with rule writers to limit expansion of state authority and to preserve agricultural exemptions.

Officials said the CDPHE is already resource-constrained. “CDPHE … is slow. It’s backed up. It’s cumbersome. It’s transactionally very difficult and expensive,” Mueller said, adding that those traits could magnify if the agency implements an expanded dredge-and-fill program. Fleming and other district staff encouraged county officials to communicate with state lawmakers if the rules stray from the legislation’s intent.

Commissioners and attendees raised worries that the draft rules exceed the statute the legislature adopted. One county speaker, identifying himself only as Al, said the rule draft “exceeds the law that they wanted to have imposed upon the state” and urged an aggressive legislative push. Mueller noted River District staff — including lead contacts Rebecca, deputy general counsel Jason Turner and government affairs director Zane Kessler — will work with local contacts and offered to help identify legislators and channels for advocacy.

River District staff said they will monitor draft rules, submit comments and try to secure regulatory language that uses tested precedent on agricultural exemptions and that provides blanket authorizations or regional/nationwide-style permits where possible. They warned against draft provisions they described as unrealistic or burdensome (for example, a proposed requirement referenced in discussion to reapply for certain authorizations every five years).

Ending: County officials and River District staff agreed to stay engaged. Mueller asked Rio Blanco staff to raise local concerns early in the rulemaking so district legal and government-affairs staff can coordinate responses and legislative outreach.