(CN) — The U.S. Environmental Protection Agency on Wednesday asked the 10th Circuit to restore its narrow definition of water protected by the Clean Water Act, struck down at Colorado’s request by a federal judge.
In April, the EPA passed a final definition of water in an attempt to clarify which waters are protected by the Clean Water Act that would require federal permits for the “the discharge of any pollutant by any person.”
The previous rule defined the protected waters as “navigable waters.” The new definition specifies tributaries, lakes and wetlands among other categories, but in doing so cuts the number of federally protected waters in Colorado by half.
Colorado sued the Trump administration this past May. A month later, U.S. District Judge William J. Martinez, appointed by Barack Obama, granted the state a preliminary injunction.
In a remote hearing before a three-judge 10th Circuit panel on Wednesday, U.S. Attorney Jonathan Brightbill argued the rules were narrowed to provide clarity in the wake of three Supreme Court cases.
Several parties intervened in the appeal and sided with the U.S.’s request to overturn Colorado’s injunction, including the American Farm Bureau Federation, the American Petroleum Institute and the U.S. Poultry & Egg Association.
“Against this thoughtful interpretation of navigable waters and in light of the Supreme court precedent, including the SWANCC decision which definitively holds there is a stopping point to the term navigable waters short of the Interstate Commerce Clause, Colorado points only to generalized objective provisions of the Clean Water Act,” Brightbill said referring to the 2001 case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.
On behalf of Colorado, state Solicitor General Eric Olson underscored how the EPA’s new water rules leave out important protections.
“The floor must be navigable waters plus waters with a significant nexus,” Olson said. “This is not our theory, every court of appeals that looked at this issue has concluded the Clean Water Act must cover at least that.”
Senior U.S. Circuit Judge Bobby Ray Baldock, appointed by Ronald Reagan, drilled into the irreparable harm that Colorado would suffer if the panel reversed the stay on enforcing the new rule.
“It appears to me that Colorado could correct this right quick by the Legislature adopting some provision that gives them permitted requirements to fill wetlands,” Baldock said. “Why should you get a preliminary injunction because of your own creation of this, because Colorado has no laws?”
Olson explained that Colorado is one of 48 states that previously relied on the federal permitting system and that the new rule was implemented during a state legislative session shortened by Covid-19.
“We absolutely agree we could put in a regulatory regime that could fill that gap, but we can’t do that in 60 days, which is all that they gave us under the rule,” Olson said.
U.S. Circuit Judge Carolyn McHugh, also an Obama appointee, challenged this narrative.
“That’s self-inflicted because the Colorado approach has been there will be no dredge-and-fill permits,” McHugh countered. “The [federal] response was you’ve known since the executive order was signed, isn’t that fair notice?”
U.S. Circuit Judge Allison Eid, appointed by Donald Trump, rounded out the panel. The panel did not indicate when or how it would decide the issue of preliminary injunction as the case continues before Judge Martinez in the U.S. District of Colorado.
The EPA and the Colorado Attorney General’s office both declined to comment.
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