AG testimony: Before the Senate Committee on Finance regarding H.B. 24-1379 (May 3, 2024)

Chair Mullica and members of the Committee, thank you for this opportunity to testify today in favor of House Bill 24-1379 (“H.B. 24-1379”). This bill addresses a regulatory gap left in the wake of the United States Supreme Court’s Sackett v. EPA decision, a gap that is now up to the states and to Colorado to fill.

The Sackett decision shrinks the scope of federal jurisdiction under the Clean Water Act and eliminates federal permitting authority for discharges of dredge and fill material into many of Colorado’s wetlands and temporary streams. We fought hard against this gutting of the Clean Water Act, as it would leave Colorado unprotected against the undermining of our water quality. Notably, because Colorado had not created its own state permitting program, we were reliant on the federal program. Without it, critical infrastructure projects are now caught in regulatory limbo with no certainty as to whether they can proceed.

This bill creates a Colorado-crafted framework in which projects can move forward and important safeguards for protecting water quality remain in place. The bill provides for streamlined approval processes, Colorado-specific protections, and clear guidelines for which waters and projects are subject to regulation and which are exempt. Those exemptions include ones we called for at the federal level, including for agriculture. And it does so in ways that complement the federal program, which will continue to apply to projects under federal jurisdiction.

To implement this important bill, if enacted into law, it is important that the Department use robust stakeholder engagement, such as that used in developing CDPHE’s Direct Potable Reuse drinking water rule. Such a model will ensure that all affected stakeholders have meaningful input in crafting the program.

For this new program to be successful, it is also critical that it enable swift yet responsible approvals for projects to proceed. To that end, the bill allows projects subject to preconstruction notification to commence if the Water Quality Control Division does not object within 45 days of receiving notice. We expect many of the projects under a new state program could take advantage of this process. Other aspects of the bill also provide for a streamlined process, such as the clear list of statutory exemptions and exclusions that clarify which activities and waters do not require discharge authorizations at all.

The success of this program will also depend, in part, on adequate funding to ensure CDPHE has the resources and staff necessary to ensure this program functions efficiently and effectively, acting on permits in a timely manner. Importantly, the bill funds itself by allowing the Water Quality Control Commission to establish fees through a public rulemaking process.

Lastly, I am glad to report that our suggestions for an even more efficient and responsible implementation have been incorporated in recent amendments to the bill:

• First, for the interim period between enactment and completion of rules for the new program, we will authorize projects to proceed under the existing Army Corps nationwide and regional general permits and make clear that operating under those permits will comply with state requirements.
• Second, the bill further streamlines the permitting process by requiring CDPHE to fully process—while ensuring all necessary environmental safeguards—all permits, even for the most complex cases, within two years of receiving the completed application.
• Finally, to allow enough time for robust, transparent stakeholder engagement, the rulemaking deadline has been extended to December 2025. This will enable the type of stakeholder engagement I discussed above.

I appreciate the sponsors’ willingness to work with us in making these refinements and am grateful for their leadership in bringing this critical legislation forward.

Thank you for the opportunity to testify in support of HB 24-1379. I am happy to answer any questions you may have.