10th Circuit Rules Against Colorado in ‘Waters of the US’ Dispute

(CN) — The federal government should not be blocked from implementing in Colorado a Trump-era regulation defining what waters are protected by the Clean Water Act, a 10th Circuit panel ruled Tuesday. 

In April 2020, the U.S. Environmental Protection Agency and the Army Corps of Engineers defined what constitutes “waters of the United States” in a regulation called the Navigable Waters Protection Rule. The definition clarifies which waters are protected by the Clean Water Act and require permits for the discharge of pollution. 

The rule narrowed the definition of protected waters to a “smaller number of Colorado waters than at any time since the passage of the Clean Water Act in 1972,” according to the state’s complaint, filed in May 2020. The state claimed the rule was unlawful, arbitrary and capricious, suffered from procedural flaws and violated the National Environmental Protection Act.  

Three days before the rule took effect, U.S. District Judge William J. Martinez, a Barack Obama appointee, granted the state its request for a preliminary injunction, which required federal agencies to continue to administer the Clean Water Act under the prior regulations. 

A key point of Martinez’s ruling was the Section 404 permit process, which pertains to the Army Corps of Engineers’ authority under the Clean Water Act to issue permits for the release of dredged or fill material into “navigable waters.” 

According to Martinez’s ruling, the state was working to amend a statute to set up its own Section 404-type permitting program but that effort was disrupted by the Covid-19 pandemic.  

“In other words, regardless of cause, the record shows that violations of Section 404 consistently happen, requiring enforcement action,” Martinez wrote. “At least some of that enforcement burden (i.e., filling in Disputed Waters) will now fall in Colorado’s lap. That share of the enforcement burden is not at all minimal or speculative. Colorado asserts, and the Agencies do not dispute, that about half of state waters protected by the Current Rule will be unprotected by the New Rule.”

“For these reasons, the Court finds that Colorado is poised to suffer an injury in fact that is fairly traceable to the New Rule, and would be redressed by a favorable ruling in this case. Moreover, that injury is certainly impending and would be irreparable,” Martinez added.

The federal agencies, along with 14 national trade associations, appealed, and on Tuesday the 10th Circuit panel ruled in their favor, finding that Colorado did not prove it would suffer “irreparable injury” without a preliminary injunction and that the lower court abused its discretion when it granted the state such relief. 

“The record evidence raises, at most, the mere possibility of the potential for a small increase in Colorado’s enforcement burden at some point in the future,” Senior U.S. Circuit Judge Bobby Baldock wrote in the panel's ruling Tuesday.

The panel was also unpersuaded by the state’s alternative theories that the rule would result in a “permitting gap” — resulting in the delay or cancellation of development and infrastructure permits — and cause irreparable and significant environmental harm. 

“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,” Baldock wrote. “When predictions are so uncertain, an injury is not cognizable — let alone sufficient to warrant the extraordinary remedy of preliminary injunctive relief. Because Colorado has failed to show the NWPR poses an actual and imminent risk of environmental harm within the State, we decline its invitation to affirm the district court’s order based on this alternative claim of irreparable injury.” 

U.S. Circuit Judges Carolyn B. McHugh, an Obama appointee, and Allison Eid, a Trump appointee, joined Baldock, a Reagan appointee, on the panel.

Colorado Attorney General Phil Weiser:

“We are disappointed with the court’s ruling," Colorado Attorney General Phil Weiser said in a statement Wednesday. "We will review it closely in the coming days and determine how best to protect Colorado’s water. We hope that the new administration will take a more sensible approach to this critical issue.”

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