In dry, western Colorado, near the town of Glade Park, a high-elevation meadow is surrounded by aspens and firs. The grass is surprisingly bright green. That’s a clue, said Abby Burk: there’s water here. But at first, it’s not apparent.
“There are some wetland plants that are here that let us know – it’s kind of like being a sleuth,” said Burk, who works for Audubon Rockies, which advocates for birds and their habitats.
We comb through the brush, into a clearing and spot it. A tiny stream glitters in the sunlight. The trickle is barely audible over the buzz of a fly and birds chirping. It might dry up after more summer heat.
Burk, who lives not too far from this wetland, knows this place is more than meets the eye.
“This is a pretty wet spot, and wildlife know that, as well,” she said. “They come here for their groceries if you will.”
But three years ago, places that look like this became more vulnerable. In 2023 the U.S. Supreme Court dramatically narrowed the 1972 Clean Water Act in Sackett v. EPA.
In ruling in favor of an Idaho couple, Michael and Chantell Sackett, who sought to build a house on their property containing some wetlands, the court hollowed out protections for an estimated 63% of the country’s wetlands and nearly five million miles of streams, an EPA official told the Washington Post in 2023.
Now, bulldozers could move in and pave over formerly protected waters for subdivisions, industrial parks or roads, without going through extensive federal “dredge-and-fill” permitting.
“With a light switch decision, all of a sudden a tremendous amount of acreage was exposed,” Burk said.
The court decision said wetlands needed a “continuous surface connection” to a protected lake, river or stream to keep federal safeguards, and that protections only apply to waters that are “relatively permanent, standing or continuously flowing.”
Burk said that language doesn’t reflect how water works in the arid West, where intermittent streams can run dry the bulk of the year and ephemeral streams fill only after storms. But these temporary arteries support abundant wildlife and connect to more substantial waters downstream.
Hand off to the states
The Sackett ruling effectively shifted more clean water oversight to states. About half already had their own wetland protections on the books, according to the Environmental Law Institute. Arizona and Wyoming state laws provided some clean water protections. But in the rest of the Mountain West, states relied on federal law to limit pollution.
Wetland protections in the West
- Colorado created Regulation 87, a state dredge-and-fill permitting program for many wetlands and streams that lost federal protection after the Sackett decision.
- New Mexico is developing a state permitting program that would regulate both pollutant discharges and dredge-and-fill in state waters beyond those protected under federal law.
- Wyoming created a narrower state permit for filling certain wetlands and streams that are protected under state law but, in some cases, no longer under federal law.
- Arizona developed a surface water protection program before Sackett that extends state water quality protections to some waters that are no longer federally regulated.
- Idaho, Montana, Nevada and Utah have limited state-level protections for wetlands that lost federal jurisdiction. However, Utah is studying the impacts of lost federal wetland protections.
“Colorado kind of saw the writing on the wall,” Burk said. “Unless the state came together and created our own program, we could be at the mercy of pendulum swings in protections and in jurisdiction. And that creates uncertainty for everyone.”
So, Colorado stepped in. It became the first state after the Supreme Court decision to create a new permitting program for waters that lost federal protection.
But building this new state system wasn’t easy. There were two competing bills in the statehouse. Some business groups were worried that new state regulations would go beyond the old federal ones. Boulder water attorney Gabe Racz testified about those concerns on behalf of the Colorado Water Congress, a wide range of water users.
“I think there was concern about an expansion of coverage,” he said. “That could present difficulties for the state economy and development in the state.”
Colorado lawmakers eventually reached a bipartisan compromise in 2024. It includes expanded protections for isolated wetlands and requirements to offset harmful impacts but also includes exemptions for agriculture.
The Colorado Department of Public Health and Environment and the Colorado Water Quality Control Commission spent the next year writing the rules and held 48 public meetings. Parts of the permitting program launched in spring 2026, with more coming online later this year. Now, developers or organizations will need to go to the state if their projects will affect waters that were previously federally regulated.
The big question on Racz’s mind is whether the state has the capacity to take this on.
“We don't know yet whether the program is adequately resourced in order to issue permits on the schedule that's necessary,” he said. “I do think resources are going to be a big part of whether this is a successful program.”
Filling the gap
Colorado’s new state permitting program is under the purview of Nicole Rowan, director of the Department of Public Health and Environment’s Water Quality Division.
Her agency is authorized to hire around five staffers to work on the permitting program. The state legislature could also adjust it in the annual budgeting process.
But Colorado’s workload could soon get bigger. Last year, the Trump administration proposed more Clean Water Act rollbacks that could leave even more wetlands and streams under the state’s responsibility.
“I do think if it continues to shrink and shrink, then Colorado is going to have to take on more of the burden of permitting, and so it is a cost concern,” Rowan said.
Still, she said, Colorado’s new state program is designed to protect the state’s waters even as the federal landscape changes. And the idea is spreading.
New Mexico’s legislature passed a law in 2025 to develop a permitting program that would set up a similar structure as Colorado, plus it would regulate pollutant discharges. About 96% of the state’s streams are intermittent or ephemeral, meaning a large portion lost protection after the Sackett decision. A state board aims to finalize the rules of the program by the end of the year.
Portia Osborne, the executive director of the National Association of Wetland Managers, said she applauds the responses from these two western states. But she’s not surprised more states haven’t taken a similar path since the Supreme Court ruling.
“It takes political will, and it takes a big effort at the state level to go about getting the approval, putting funds in place to fund a program, and then all of the work of developing the rules, hiring and training staff, and building up a program,” Osborne said. “It's a big ask.”
Osborne also said the federal government played an important role in enforcing Clean Water Act regulations and was able to coordinate protections under other federal laws like the Endangered Species Act.
“This patchwork of protections is never going to ensure as strong of a protection to our aquatic resources as a strong federal protection and program would,” she said.
For Burk in Colorado, however, the work isn’t finished.
“Is this a mic drop moment? I think we have come a tremendous way,” she said. “But we’re not done yet.”
Now comes the most important part, she said. Ensuring Colorado’s new permitting program delivers on protecting wetlands and small streams.
This story was produced in partnership with The Water Desk, an independent reporting initiative at the University of Colorado Boulder’s Center for Environmental Journalism.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio, Boise State Public Radio in Idaho, KUNR in Nevada, KUNC in Colorado and KANW in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.
