2024 Conservation Laws Affecting Construction Projects

The Colorado General Assembly passed two conservation laws in the 2024 Legislative Session which affect construction in Colorado. These laws are intended to: (1) restore protection of wetlands and streams lost because of recent changes in federal law; and (2) authorize and encourage the use of graywater in Colorado. 

Protection of Wetlands and Streams

“Dredge and fill activities involve digging up or placing dirt and other fill material into wetlands or surface waters as part of construction projects.” [1] Colorado’s wetlands and waters were previously protected from dredge and fill activities under the Clean Water Act implemented by the Environmental Protection Agency (EPA). In 2023, however, the U.S. Supreme Court issued a ruling in Sackett v. U.S. Environmental Protection Agency, 598 U.S. 651 (2023) (Sackett), limiting the EPA’s authority to regulate wetlands and streams and ending federal permitting requirements applicable to many wetlands and waters. 

In 2024, Colorado responded to Sackett by becoming “one of the first states in the country to pass legislation to restore protections to wetlands and streams from development activities.”[2] The new law is detailed and landowners, developers, and construction industry professionals are encouraged to read it in its entirety before proceeding with any dredge and fill operations which might affect wetlands or surface waters. Here are three takeaways from the new legislation:

• It requires the Colorado Water Quality Control Commission (CWQCC) to promulgate rules by December 31, 2025 which implement a state dredge and fill discharge authorization program modeled after the Army Corps of Engineer’s Section 404 permit program;
• Tasks the Colorado Department of Public Health and Environment’s Division of Administration (Division) with implementing and enforcing the program subject to detailed statutory requirements and guidance; and
• Sets up an interim plan for dredge and fill activities until the CWQCC issues its new rules, including a decision that:
  • General permits issued by the United States Army Corps of Engineers constitute valid authorization to discharge dredged or fill material into state waters not subject to federal authority;
  • The Division’s Clean Water Policy 17, “Enforcement of Unpermitted Discharges of Dredged and Fill Material into State Waters,” remains in effect; and
  • The Division may issue temporary authorization (which may not exceed two years) related to the discharge of dredged or fill material into state waters subject to conditions that protect public health and the environment.

HB24-1379, codified at Colo. Rev. Stat. §§ 25-8-205, 25-8-205.1, 25-8-103, 25-8-210, 37-60-122.2, 39-29-109.3, 25-8-305, is effective May 29, 2024.

Graywater Use Authorized and Encouraged

“Graywater” is wastewater from sinks, baths, showers, washing machines, and other household appliances which is no longer safe to drink, but is clean enough to reuse in toilets and as irrigation water. To preserve Colorado’s natural resources, the new law authorizes and encourages the installation of graywater treatment systems in new construction projects as well as the use of graywater statewide unless such use is expressly prohibited by a local government.

HB24-1362, codified at Colo. Rev. Stat. §§ 25-8-205.4, 25-8-205, 25-8-205.3, 30-11-107, 31-15-601, is effective January 1, 2026.

Landowners, developers, and construction professionals with questions about the impact of any of the laws discussed above are encouraged to contact BHGR’s Water and Conservation Group.

[1] Colorado House Democrats, Signed! Legislation to Protect Streams, Rivers and Wetlands, https://www.cohousedems.com/news/signed!-legislation-to-protect-streams%2C-rivers-and-wetlands.

[2] A. Teegarden, Colorado Bill Protects Wetlands & Streams, https://www.colorado.edu/center/gwc/2024/05/08/colorado-bill-protects-wetlands-streams.