WOTUS, Sackett, and Colorado Regulation 87: What Livestock Producers Need to Know in 2026

WOTUS continues to evolve following the Supreme Court’s Sackett decision. The federal WOTUS definition is only part of the regulatory picture for Colorado Producers. In response to the Supreme Court decision, Sackett vs the United States Environmental Protection Agency (EPA), Colorado established its own dredge-and-fill permitting program, now implemented through Colorado Regulation No. 87. As a result, a determination that a wetland or water feature is not federally regulated as WOTUS does not necessarily mean it is unregulated in Colorado.

How Sackett Changed WOTUS

The Clean Water Act regulates discharges into “navigable waters,” defined by Congress as “waters of the United States.” Federal agencies, courts, and presidential administrations have disagreed for decades over how broadly to interpret that phrase. In Sackett, the Supreme Court rejected the controversial “significant nexus” test previously used to establish jurisdiction over certain wetlands. The effects were especially significant in western states such as Colorado, where intermittent and ephemeral streams and seasonal wetlands are common. The decision substantially limited federal jurisdiction, particularly over wetlands lacking the necessary continuous surface connection to federally covered waters.

Colorado Regulation 87

In 2024, Colorado enacted House Bill 24-1379 in direct response to Sackett. The legislation created a state dredge-and-fill program administered by the Colorado Department of Public Health and Environment and expressly included wetlands within the definition of Colorado “state waters.”

The Colorado Water Quality Control Commission subsequently adopted Regulation No. 87 on December 10, 2025, establishing rules governing certain discharges of dredged or fill material into state waters. Colorado’s jurisdiction can extend beyond the post-Sackett federal WOTUS definition. That makes “not WOTUS” very different from “not regulated.”

This creates important distinctions for Colorado agriculture:

· At the federal level, the question may be: Is this feature WOTUS?

· At the state level, producers must also ask: Is this a Colorado state water, and does my proposed activity require state authorization?

What Does This Mean for Agriculture in Colorado?

Colorado’s law includes important agricultural protections. Normal farming and ranching activities are exempt under specified circumstances. The law covers activities such as plowing, seeding, cultivating, minor draining, harvesting, and certain soil and water conservation practices. Construction and maintenance of certain farm ponds, stock ponds, farm lagoons, irrigation ditches, and farm roads are also exempt.

However, producers should not assume that every project on agricultural property automatically qualifies for an agricultural exemption. This is especially important when a livestock operation plans a significant expansion, develops a new site, constructs infrastructure, modifies drainage, or undertakes substantial earthwork. The type of activity, the characteristics of the water feature, and the project specifics can all matter. For livestock operations, these questions may arise during the construction of facilities, roads and crossings, drainage improvements, water infrastructure, ponds, lagoons, utilities, or other site improvements.

WOTUS Is Still Changing at the Federal Level

The federal picture remains unsettled. The EPA and the Army Corps of Engineers proposed another WOTUS rule in November 2025 to further implement Sackett. The proposal would clarify key concepts, including “relatively permanent” waters and “continuous surface connection.” It could be particularly important in Colorado because of how it treats seasonal, intermittent, and ephemeral waters. According to the EPA's website, it has not published a final rule since the comment period ended on January 5, 2026. Regardless of what happens with the federal rule, Colorado producers must now account for Regulation 87.

Plan Before Moving Dirt

For Colorado livestock producers, the practical lesson is straightforward: do not assume that a feature outside federal WOTUS jurisdiction can be disturbed without further regulatory review. A producer considering facility expansion, site development, roads, crossings, drainage work, or other construction should evaluate both federal and Colorado jurisdiction early in the planning process. Identifying potential wetlands and state waters before engineering and construction begin can help avoid permitting delays, redesigns, and unexpected costs.

AGPROfessionals works with livestock producers on environmental compliance, permitting, engineering, land-use planning, and facility development. As federal WOTUS policy continues to evolve and Colorado implements Regulation 87, early regulatory due diligence is increasingly important. Knowing whether a water feature is WOTUS still matters. For Colorado agriculture, it is no longer the only question to ask.

Link to updated definition of WOTUS on the EPA website HERE