For the next piece in our Sackett series, we will look at public participation and environmental review provisions applicable under the Clean Water Act’s existing dredge and fill program. Colorado’s program needs similar procedural protections in any permitting program designed to effectively protect state waters and fill the gap left by Sackett. There are models to draw on from other states around the country, like California, which have already developed successful state-run programs.
I. Federal Public Participation and Environmental Review pre-Sackett
At the federal level, public participation regarding proposed dredge and fill activities are governed by the Clean Water Act and begin during the permitting stage. The public's type and level of involvement varies depending on the proposed project's impacts. Once an applicant applies for a dredge and fill permit, the Army Corps of Engineers (Corps) must provide public notice of receipt of a complete application and solicit comments from the public, adjacent property owners, interested groups or individuals, local agencies, state agencies, and federal agencies for all permit types.¹ After this notice, the Corps opens the public comment period for 15 to 30 days depending on the type of activity. When the comment period closes, the applicant is given an opportunity to respond to comments from the public notice.²
The Corps then considers all public comments and responses from the applicant. They may require additional information from the applicant or project modifications to reduce environmental impacts. This form of participation is typically referred to as notice and comment and occurs early in the permitting process because it is vital for ensuring that regulating agencies take a wholistic view of the proposed activities that analyze the viewpoints of all interested parties.
After notice and comment, the Corps conducts a public interest review and determines whether Clean Water Act Section 404(b)(1) guidelines have been or will be followed.³ The public interest review determines the foreseeable impacts of the proposed project on public interest factors by analyzing which alternatives are the least damaging to the environment and considers the cost to implement each alternative.4 If the Corps finds that the project will not harm public interest values and is the least damaging alternative, the Corps then decides on whether or not to grant a permit. They must explain that decision in a decision document, either a Record of Decision or Statement of Findings, which is incorporated into the Environmental Assessment (EA) or Environmental Impact Statement (EIS) as part of the National Environmental Policy Act (NEPA) if implicated by an individual project with “significant impacts”.5
For individual projects that are expected to have a “significant impact” on the surrounding environment, the public has more opportunities to participate pursuant to NEPA’s public involvement requirements. NEPA is triggered when the Corps initiates a permit review and mandates analysis of the direct, indirect, and cumulative impacts of a proposed project on the environment.6 The Corps provides notice for both an EIS and the scoping associated with its preparation.7 The public, through this process, can suggest alternatives, help define the scope or scale of anticipated effects, and assure the Corps considers all relevant effects on the environment prior to making a decision. The cumulative impacts requirement is especially important when the Corps is considering general or nationwide permits that would cover a category of activities that may not have individually significant impacts but, as a whole, result in more consequential impacts to the environment.
Specifically, the Corps is looking at impacts to threatened and endangered species, water quality violations, loss of wetland habitat, and analyzes the public comments on the draft EIS among other variables. The Corps documents these impacts in a final EIS and must notify the public of opportunities to comment on the agency’s findings that document the anticipated effects of a dredge and fill project on the surrounding environment.8 Therefore, for individual projects with “significant impacts” the Corps provides three opportunities for the public to comment on agency findings: (1) at the permit application stage, (2) during preparation of the EIS, and (3) after EIS findings have been published.
For other individual projects with lesser impacts, the Corps will still conduct an environment review in the form of an Environmental Assessment (EA), which will consider the direct, indirect, and cumulative effects of the project. However, the EA is more streamlined than an EIS and is not typically subject to public comment.9
The NEPA process is also coordinated with federal agencies that implement specific program areas under the Endangered Species Act (ESA) and the National Historic Preservation Act (NHPA). These programs provide an additional layer of substantive environmental review and, in more limited circumstances, additional public involvement.
- Section 7 of the ESA Requires Consultation with the Expert Wildlife Agency
The ESA provides an important safeguard for imperiled species by requiring consultation between the permitting agency and the expert federal wildlife agency. This consultation process is implicated where a dredge and fill project may affect a threatened or endangered species or critical habitat of those species.10 When this consultation process is triggered, the Army Corps consults with the Fish and Wildlife Service (FWS) and or the National Marine Fisheries Service (NMFS) to ensure that projects will not affect endangered or threatened species or result in the destruction or adverse modification of critical habitat.11 There is no public notice or comment associated with the ESA consultation process; however, effects on listed species and critical habitat are addressed during the NEPA process.
- NHPA Provides Stand-alone Public Participation, where Implicated
The NHPA requires public participation where dredge and fill operations may affect historic properties. Under Section 106 of the NHPA, States, Tribes, and other affected communities must have the opportunity to comment on any proposed actions affecting historic properties on the National Register. Public input is embedded into the NHPA through the NEPA process because all potential impacts to historic properties must be analyzed and documented before the lead agency (Corps) releases their decision document. Even if the project is considered a categorical exclusion and does not require the formation of a decision document, section 106 requires that measures be taken to resolve adverse effects through a Memorandum of Agreement (MOA). Therefore, the NHPA provides public participation and allows affected parties to comment on the potential impacts of the proposed activity for listed historic properties where implicated by projects requiring a Section 404 permit.
Thus, under the Clean Water Act, the National Environmental Policy Act, and other federal statutes, the Corps is required to notify and engage the public and to fully consider and disclose the environmental effects of proposed permits prior to making a final decision. These procedural requirements have proven to be essential to ensuring that the agencies faithfully implement their statutory direction and protect public resources while allowing for balanced development.
II. Appeals & Judicial Review
Once a permit has been approved or denied by the Corps, an applicant can appeal the decision either administratively or through judicial review. Administrative reviews are limited to the party seeking an application from the Corps and require the applicant to submit a request for appeal to the appropriate division office.12 Division offices will review the permit decision to ensure that the denial was based on substantive factors and was not the product of an arbitrary or capricious action.
Judicial review is available at the federal level for affected parties that have exhausted any administrative appeals13 and allows them to seek review of the Corps decision to issue the permit and/or the NEPA review documents.14
Federal courts generally conduct review of section 404 permitting decisions and NEPA review documents pursuant to the Administrative Procedure Act (APA). For example, a finding of no significant impact by the Corps under NEPA or the issuance of a permit by the Corps for the discharge of dredge or fill material into waters covered under 33 U.S.C. §1344 and 33 C.F.R. Part 230 are subject to judicial review under the APA. Thus, affected citizens concerned about environmental impacts or permit applicants concerned with the terms and conditions of a permit can seek review in federal court, which serves as a check and balance on the functions of the administrative agency.
Under the APA, federal courts will either hold the agency action unlawful or set aside their findings and conclusions which are:
a. Arbitrary, capricious, an abuse of power, or otherwise not in accordance with law;
b. Contrary to constitutional right, power, privilege, or immunity;
c. In excess of statutory jurisdiction, authority, or limitations, or short of statutory right
d. Without observance of procedure required by law15
Judicial review provisions, therefore, act as a balancing measure that provides an additional layer of independent review to assure that the Corps has acted reasonably and in compliance with applicable law. An effective Colorado program that fills the gap left by Sackett should provide permit applicants and affected members for the public with similar public participation opportunities and judicial remedies.
III. Potential Protections in Colorado
Colorado Statute §25-8-502(2)-(5) provides for some basic participation requirements within the state. These requirements could arguably apply to a dredge and fill regulatory program within the state because it requires that, “A complete and accurate application for all discharges shall be filed” with the Water Quality Control division.”16 Under the Water Quality Control Act, a release of dredge or fill material qualifies as a “discharge” under state law. Any application for a discharge must contain plans, specifications, water quality data, and other information related to the discharge. The applicant may request a meeting with the division before submitting the application to ensure they have met all applicable permit requirements.17
The division will evaluate the permit application to determine if the anticipated discharge will comply with all of the federal and state statutory and regulatory requirements.18 Upon receipt of a complete application the division shall provide public notice and advise interested parties of the “opportunity to submit written comments on the proposed discharge or request a public hearing on the matter where good cause is shown.”19 The notice provided by the division must be given via at least one publication in a newspaper of general circulation and mailed to any person or group upon request.20 In addition, a copy of the permit application and the preliminary analysis of the proposed discharge must be maintained in the office of the county clerk and recorder in the county where the proposed discharge will occur.21 The legislature also requires the issuance of a temporary permit if the division has not issued or denied a permit within 180 days after the receipt of the permit application.22
Although Colorado might have statutory public participation protections that provide notice and the opportunity to comment on dredge and fill permits, the state lacks the environmental review and disclosure protections provided by NEPA, and where implicated, the ESA and NHPA. Without these additional protections in place that analyze all of the potential impacts, there is no opportunity to ensure that Colorado state agency decision-making is comprehensive and based on foreseeable direct, indirect, and cumulative impacts of the proposed activities. This is a critical gap that policymakers in Colorado should consider as they craft a state-based program.
To fully protect the state of Colorado, the legislature needs to enact new participation standards that mirror those available at the federal level and include review of all potential impacts which can be commented on by the public.
IV. Protections in Other States that have Dredge and Fill Regulatory Programs
Colorado can look to other states for potential guidance in establishing a state managed dredge and fill regulatory program. California’s is a notable example because it has been successfully implementing its state-based program since 2020. The regulatory program was initially instituted in 2001 in response to the earlier SWANCC decision23 to address part of the “gap” of protections available for state “isolated wetlands” not falling under federal jurisdiction.24 This program led to a set of Procedures developed by the State Water Resources Control Board as part of their rulemaking authority.25 State Water Boards and developers looking to obtain permits for dredge and fill of state waters not covered under the Clean Water Act must use these procedures to guide them during the application process. In addition, they established a definition of wetlands that is largely similar to the definition used by the Corps and established guidelines for processing Waste Discharge Requirements (WDRs).
An area qualifies as a wetland if, under “normal circumstances”
- The area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both;
- The duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and
- The area’s vegetation is dominated by hydrophytes or the area lacks vegetation.
Anytime an individual plans to engage in a project requiring either dredging or filling of state waters that qualify as a wetland, they must apply for Waste Discharge Requirements. These requirements mandate that applicants provide the water board with information pertaining to adherence of the California Endangered Species Act and the Native Plan Protection Act; both of those protections are entirely unique to California because they are state level programs that protect listed endangered and threatened species under the Act. California will also differ from other states' implementation of a state-level regulatory program because they have their own version of NEPA, called the California Environmental Quality Act or CEQA. CEQA was designed to mirror the protections available at the federal level and provides holistic environmental review of development projects by emphasizing mitigation of potential harm.
In addition to California-specific requirements, applicants must provide an alternatives analysis which looks at the direct, indirect, and cumulative impacts of the proposed action and indicate which alternative is the least environmentally damaging practicable alternative similar to review provided by the NEPA process and Section 404(b)(1) guidelines.26 Outside of the mandatory requirements, applicants may be asked to provide compensatory mitigation on a case-by-case basis to adhere to California’s no-net loss policy.27 The Water Board, after certifying that the applicant has provided a complete application, must make the application available for public comment for at least 30 days before taking action to approve, or deny the application.
Colorado could benefit from adopting policies similar to California’s wetland procedures because California has ensured that the state permitting authority considers the direct, indirect, and cumulative effects of proposed activities and includes the public in this environmental review process. The requirement to consider indirect and cumulative effects is particularly important if Colorado intends to provide general or statewide permits that would offer a streamlined way to approve smaller or more routine categories of activities. Those potential cumulative impacts should be considered up front before issuing general permits and be informed by public participation. If Colorado can take some of this language and infuse it into their regulatory program, it can help to ensure that the state program incorporates the key elements of public participation and environmental review that have proven to be critical components of the federal effort.
The need for these reforms has never been more pressing than it is now because over two-thirds of Colorado’s waters have temporary flows.29 Speaker McCluskie remarked on the opening day of the 2024 Colorado legislative session, “Water is intrinsic to the Colorado Spirit, and the lifeblood of our agriculture industry and tourism economies. The recent United States Supreme Court decision about the definition of Waters of the United States leaves many of our waterways in Colorado unprotected. In the wake of the difficult decision, we have an opportunity to take action to reestablish these critical protections.”30
1 U.S. Army Corps of Engineers Permitting Process Information at 3 https://www.lrl.usace.army.mil/portals/64/docs/regulatory/permitting/permittingprocessinformation.pdf [last accessed December 21, 2023].
3 40 C.F.R. Part 230.
5 U.S. Army Corps of Engineers Permitting Process Information at 1 https://www.lrl.usace.army.mil/portals/64/docs/regulatory/permitting/permittingprocessinformation.pdf
6 40 C.F.R. Part 1508.1(g) (2020).
9 40 C.F.R. Part 1501.5(e) (2020).
10 See 33 C.F.R. §352.2(a)(2) (1986).
12 U.S. Army Corps of Engineers Permitting Process Information at 5 https://www.lrl.usace.army.mil/portals/64/docs/regulatory/permitting/permittingprocessinformation.pdf
13 33 C.F.R. Part 320.1(a)(2) (2000).
14 See 33 C.F.R. §331 et seq.
15 5 U.S.C §706(2) (1996).
16 Colo. Rev. Stat. § 25-8-502(2)(a).
17 Colo. Rev. Stat. § 25-8-502(2)(b).
18 Colo. Rev. Stat. § 25-8-502(3)(a).
19 Colo. Rev. Stat. § 25-8-502(3)(b)
20 Colo. Rev. Stat. §25-8-502(4)(a)-(d).
22 Colo. Rev. Stat. §25-8-502(5)(a)(I).
23 Solid Waste Agnecy if Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001).
24 See Report to the Legislature Supplemental Report of the 2002 Budget Act Item 3940-001-0001, (April 2003) https://www.waterboards.ca.gov/publications_forms/publications/legislative/docs/2003/wetlands_02supprpt.pdf [last accessed Jaurary 19, 2024].
25 State Water Resources Control Board, State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, https://www.waterboards.ca.gov/water_issues/programs/cwa401/wrapp.html [last accessed Janurary 19,2024].
26 State Water Quality Control: State Wet land Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State, https://www.lrl.usace.army.mil/portals/64/docs/regulatory/permitting/permittingprocessinformation.pdf [last accessed January 3, 2024].
27 Exec. Order W-59-93. https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/wrapp2008/executive_order_w59_93.pdf [last accessed January 3, 2024].
28 California Code, Water Code, §13176.5
29 Sackett v. EPA (No. 21-454), Brief of Amicus Curiae State of Colorado in Support of Respondents at 3.
30 Julie McCluskie, Personal Remarks delieved for opening of the Second Regular Session of the 74th General Assembly, January 10, 2024. https://www.cohousedems.com/news/speaker-mccluskie-delivers-opening-day-remarks [last accessed Janurary 11, 2024].