The U.S. Court of Appeals for the Tenth Circuit reversed the Colorado injunction of the Trump administration's Navigable Waters Protection Rule, siding with a coalition of trade groups including the, American Farm Bureau Federation, National Cattlemen's Beef Association and National Pork Producers Council.
The Court ruled that Colorado failed to show irreparable injury on the record before the Court. Due to this ruling, NWPR is now effective law in Colorado and all 50 states are now must abide by the water definitions laid out with the Trump rewrite of the Waters of the U.S. rule.
NWPR was issued in mid-2020 and effective in all places except Colorado, due to an administrative stay issued by Judge William Martinez on June 19, 2020. The appeals court overturned that stay in action March 2.
Under the Obama administration in 2015, the EPA and the U.S. Army Corps of Engineers issued a new WOTUS rule that gave EPA broad jurisdiction over U.S. waters to include upstream waters and intermittent and ephemeral streams. The WOTUS rule was immediately challenged in court and subject to several preliminary injunctions.
EPA and the Corps have struggled for more than 40 years in defining "waters of the United States" and the Supreme Court has also taken up cases on several occasions. The Court most recently considered the breadth of the Corps' jurisdiction over wetlands in Rapanos v. United States. The Rapanos plurality suggested wetlands fall within the scope of the Clean Water Act only when they (1) are adjacent to a "relatively permanent body of water connected to traditional interstate navigable waters" and (2) have "a continuous surface connection with that water."
The NWPR defines "waters of the United States" as: (1) "The territorial seas" and traditional navigable waters; (2) "Tributaries" of those waters; (3) "Lakes and ponds, and impoundments of jurisdictional waters; and (4) Adjacent wetlands." Although it's unclear precisely how many miles of waterways and acres of wetlands the NWPR puts outside the reach of the Clean Water Act, the rule undisputedly represents a significant reduction in the scope of jurisdiction the Agencies have asserted in the past, the district judge notes in overturning Colorado's stay.
The only specific evidence Colorado presented to support its claim of harm associated with the increased enforcement burden it would bear under the NWPR is the declaration of Nicole Rowan, the Clean Water Program Manager for the State's Water Quality Control Division. In her declaration, Rowan asserted that "Colorado will need to and will take enforcement action against illegal fill activity in state waters" because of the NWPR's reduction in Clean Water Act jurisdiction.
And because the Water Quality Control Division lacks dedicated funding to undertake this enforcement effort, Rowan explained, Colorado will have to divert resources from other clean water programs to the detriment of those programs. Rowan also noted that the EPA "has historically completed between three and five enforcement cases in Colorado per year for 404 permit violations."
The judge concludes: "On this record, it is pure speculation whether the NWPR's reduction in federal jurisdiction would result in an increase, rather than a decrease or no change, in the number of dredge and fill violations committed in Colorado. When predictions are so uncertain, an injury is not cognizable—let alone sufficient to warrant the extraordinary remedy of preliminary injunctive relief."