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Natural Resources Assessment <br />P125 Gravel Mine - Southwest of State Highway 66 and County Road 17 <br />Weld County, Colorado <br /> <br />ERO Project #24-180 5 <br />ERO Resources Corporation <br />During the 2024 site visit, a black-tailed prairie dog (Cynomys ludovicianus) colony was observed in the <br />northern portion of the project area (Figure 2). <br />Wetlands and Other Waters of the U.S. and Waters of the State <br />Clean Water Act Section 404 <br />The Clean Water Act (CWA) protects the chemical, physical, and biological quality of WOTUS. The U.S. <br />Army Corps of Engineers’ (Corps) Regulatory Program administers and enforces Section 404 of the CWA. <br />Under Section 404, a Corps permit is required for the discharge of dredged or fill material into wetlands <br />and other WOTUS (streams, ponds, and other waterbodies). Since the regulatory program was initiated, <br />the definition of WOTUS has changed frequently due to United States Supreme Court (Supreme Court) <br />decisions and new rules proposed by presidential administrations. On August 29, 2023, the U.S. <br />Environmental Protection Agency and Corps announced a final rule amending the 2023 definition of <br />“waters of the U.S.” to conform with the Supreme Court ruling under Sackett v. Environmental <br />Protection Agency, No. 21-454. The amended rule reduces the jurisdiction of the CWA over wetlands <br />adjacent to bodies of water that do not have a continuous surface connection to other known WOTUS, <br />as well as streams that do not have continuous flowing or relatively permanent water. The amended <br />rule removes the “significant nexus” standard that was created under Rapanos v. United States, <br />removes interstate wetlands from the definition of WOTUS, and revises the definition of “adjacent” to <br />mean “having a continuous surface connection.” Potential rulings and guidance in the future could <br />change the results of this report regarding the jurisdictional status of waters and wetlands in the project <br />area. While ERO may provide its opinion on the likely jurisdictional status of wetlands and waters, the <br />Corps will make the final determination of jurisdiction based on the current rulings. <br />State Dredge and Fill Program <br />On May 6, 2024, the Colorado Legislature passed House Bill (HB) 24-1379, which creates a dredge and <br />fill permit program (program) for the State of Colorado. The program will apply to all state waters, <br />including wetlands, that are not protected under the federal CWA Section 404. If a CWA Section 404 <br />Permit is obtained from the Corps, or the project has a valid approved jurisdictional determination from <br />the Corps that was issued prior to May 25, 2023, then authorization from the state would not be <br />required. The program will require authorization from the Colorado Department of Public Health and <br />Environment (CDPHE) for the placement of dredged or fill material into state waters where the wetlands <br />or open water have been determined to not be WOTUS. CDPHE has until December 31, 2025 to go <br />through rulemaking, which will create general and individual permits similar to CWA Section 404 <br />Permits. <br />Until the program is in place, CDPHE has issued Clean Water Policy 17, which allows for enforcement <br />discretion for activities in state waters that would have previously required a CWA Section 404 Permit. If <br />a project would impact state waters that are no longer considered WOTUS and require a CWA Section <br />404 Permit, Clean Water Policy 17 applies. The policy allows for enforcement discretion if permanent <br />impacts on state waters would be less than 0.10 acre on wetlands or 0.03 acre on streambeds and