Public Notice: Water Quality Certification for Ditch-Related Activities in Colorado within Indian Country and Lands of Exclusive Federal Jurisdiction

Summary

The U.S. Environmental Protection Agency (EPA) received a request from the U.S. Army Corps of Engineers (USACE) for a Clean Water Act (CWA) Section 401 water quality certification (WQC) for Regional General Permit (RGP) 5, “Ditch-Related Activities in Colorado” (SPA-2026-00092), under CWA section 404 and section 10 of the Rivers and Harbors Act of 1899. Section 401(a)(1) of the Clean Water Act requires applicants for Federal permits and licenses that may result in any discharge into waters of the United States to obtain certification or waiver from the certifying authority where the discharge would originate. 

EPA acts as the certifying authority in areas of Indian country[1] for which Tribes have not been authorized for treatment in a similar manner as a state (TAS) for Section 401. In this case, the Southern Ute Indian Tribe has authority to provide CWA section 401 certification for discharges occurring within any lands on the Southern Ute Indian Reservation that are held in trust for the Tribe by the United States, and the Ute Mountain Ute Tribe has that authority for discharges occurring within all lands on its Ute Mountain Ute Reservation in Colorado. However, the Southern Ute Indian Tribe does not have that authority for discharges occurring within any lands on its Reservation that are not held in trust by the United States for that Tribe. Also, neither the Southern Ute Indian Tribe nor the Ute Mountain Ute Tribe have that authority for discharges occurring within the state of Colorado on any Indian country lands outside of their reservations (except for one parcel held in trust for the Southern Ute Indian Tribe contiguous to its Reservation[2]). EPA also acts as the certifying authority on lands of exclusive federal jurisdiction in relevant respects.[3]

EPA will act on this certification request by either: 

1. granting certification;
2. granting certification with conditions; 
3. denying certification; or 
4. expressly waiving certification consistent with CWA Section 401 and EPA’s implementing regulations at 40 CFR 121.

USACE issued a public notice for comments on RGP 5, “Ditch-Related Activities in Colorado” (SPA-2026-00092), on March 4, 2026; comments are being accepted until April 3, 2026. This RGP is a re-issue and the current version expires July 30, 2026. The re-issued RGP will be valid for a period of five years following the date it is issued. The proposed certification would provide a water quality certification for RGP 5, “Ditch-Related Activities in Colorado” (SPA-2026-00092), within Indian country lands and lands of exclusive federal jurisdiction in the state of Colorado, such that individual water quality certifications would no longer be required during the permit term.

Project Description

Applicant’s Name

U.S. Army Corps of Engineers (USACE), Omaha District, Colorado Regulatory Office

Waterways 

Discharges into waters of the U.S. in the State of Colorado within the following categories of lands: 

• Indian country lands within the Southern Ute Indian Reservation that are not held in trust by the United States for that Tribe;
• Any Indian country lands of the Southern Ute Indian Tribe or the Ute Mountain Ute Tribe outside of their reservations (except for one parcel held in trust for Southern Ute Indian Tribe contiguous to the Tribe’s Reservation); and
• Lands of exclusive federal jurisdiction in relevant respects.

RGP 5 authorizes certain discharges of dredged or fill material into waters of the United States in Colorado into irrigation and drainage ditches (ditches) and any directly associated wetlands. Irrigation ditches convey irrigation water to or away from irrigated lands. Drainage ditches increase the drainage of a particular land area. To the extent that a Corps permit is required, activities authorized by this RGP include:

• Construction of irrigation ditches,
• Relocation/realignment of existing irrigation ditches,
• Converting existing ditches into pipes,
• Filling of existing ditches, and
• Lining or armoring existing ditches.

This RGP also authorizes temporary structures, fills, and work, including the use of temporary mats, necessary to conduct the ditch related activity. In accordance with 33 CFR 322.2(f)(1), this RGP authorizes activities that are substantially similar in nature that would result in no more than minimal individual and cumulative adverse effects on the aquatic environment, when conducted under the terms and conditions of this permit. 

Information relating to the reissuance of SPA-2026-00092 with associated restrictions and special conditions can be found at the USACE website.

Public Comments

Submit comments as described in the “How to Comment” box at the righthand side of this webpage. Comments must be submitted by 11:59 pm on April 25, 2026.

Contact Jeffrey Ullman, R8CWA401@epa.gov and 303-312-6329, to request additional information, public notice updates, submit comments or provide additional information relevant to this certification.

At this time there is no opportunity to review the submitted material and documents in person at an EPA office. These documents are only available electronically and can be provided upon request.

Notification and details of any public comment period extension will be posted to this page only. Interested parties on our email list will also be notified by email.  

Public Hearings

Any person may request, in writing, within the comment period specified in this notice, that a public hearing be held to consider this application. If the Administrator, in his or her discretion, determines that a public hearing is appropriate or necessary, EPA will schedule a public hearing. You may request a public hearing using the information in the “How to Comment” box on the right-hand side of this page. 

Project Applicant 

Benjamin Wilson (Benjamin.R.Wilson@usace.army.mil)
U.S. Army Corps of Engineers (USACE)