Comment Letter: Colorado’s Regulation No. 87 for Permitting and Mitigating Dredge and Fill Activities

Following the Sackett vs. EPA Supreme Court case that reduced the scope of federal protections of wetlands and streams, Colorado’s state legislature directed the Colorado Department of Public Health and Environment (CDHPE) to create regulations (specifically “Regulation No. 87”) for permitting and mitigating dredge and fill activities (CO HB 24-1379, May 2024). The regulation will protect “state waters” - wetlands and streams no longer defined as federal Waters of the United States (WOTUS) and thus no longer protected at the federal level. The regulation is expected to be published in December of 2025, with the Water Quality Control Division implementing the regulations by August 2026. 

With regard to mitigation, the regulation largely copies the national 2008 rule on aquatic compensatory mitigation, with some exceptions, for waters that are non-WOTUS state waters. However, there are moderate differences, particularly in how different mitigation types are treated in the mitigation preference hierarchy.

Our comment letter includes:

1. Recommendations to Assure Timely Mitigation Bank and ILF Instrument Review

2. Recommendations to Avoid ILF Program Risks

3. Recommendations to Support the Mitigation Preference Hierarchy and Reduce Confusion

4. Recommendations Beyond Edits to the Regulation - Tracking Review Timelines, and Creating a Holistic Permit and Mitigation Tracking System

5. A kudos section where we identified recommendations and best practices in the past, and see them incorporated in Regulation No. 87

The comments provided are based on research conducted over the last 15+ years on compensatory mitigation at the national and state level (including data analysis and an in-depth programmatic audit of an in-lieu fee program), as well as recommendations published by Dr. Martin Doyle from Duke University and US Army Corps of Engineers leadership.