The proper definition of “waters of the United States” is fiercely debated, and debatable. The Trump administration’s foray into the definition—the Navigable Waters Protection 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. That changed, however, on March 2, 2021, when the U.S. Court of Appeals for the Tenth Circuit lifted the stay in Colorado.1
The Tenth Circuit reversed the district court and lifted the stay because the state of Colorado failed to demonstrate irreparable injury absent injunctive relief—a dispositive holding that obviated the need for the court to evaluate all four preliminary injunction factors.
Central to its decision, the court reversed the district court’s determination that the NWPR would force Colorado to create its own enforcement program.2 Colorado’s sole supporting evidence was a declaration from the Water Quality Control Division’s Clean Water Program Manager (the “Manager”), which the court determined failed to support a showing of irreparable harm for two reasons:
- NWPR did not create an imminent harm. The Manager provided only “conclusory” and “vague assertions” that the NWPR creates an immediate compliance and enforcement burden without specifying why that may be the case.3 Colorado thus could not demonstrate that it would suffer an increased enforcement burden before the court reaches a decision on the merits of the case.4
- NWPR did not create actual or certain harm. The Manager’s declaration merely stated that in Colorado, the Environmental Protection Agency historically undertakes three to five enforcement actions annually related to dredge and fill violations.5 But the declaration provided no further information on those enforcement actions, including—critically—whether those actions related to waters previously regulated but no longer covered by the NWPR.6
The declaration therefore presented, “at most, the mere possibility of the potential for a small increase in Colorado’s enforcement burden at some point in the future.”7
The Tenth Circuit also rejected Colorado’s two alternative arguments, the first being its “permitting gap” argument. Colorado had argued that the NWPR would create a gap under which many dredge-and-fill projects would be prohibited, since state law prohibits all discharges of dredged or fill material into state waters in the absence of federal permits while the NWPR’s narrowed jurisdiction could lead to unpermitted discharges into state waters.8 That claim of injury, however, is not legally cognizable because the harm is not fairly traceable to the NWPR. The court determined that the alleged “permitting gap” is instead self-inflected by the Colorado legislature’s “decision to effectively prohibit dredge and fill activities in state waters not covered by the Clean Water Act.”9 And aside from that fact, Colorado provided no evidence of imminent harm flowing from its alleged inability to authorize dredge and fill activities, nor any evidence that Colorado would incur imminent costs by creating and administering a new permitting program.10
The court likewise rejected Colorado’s alternative argument that NWPR’s narrowed jurisdiction would leave half of its state waters unprotected and cause significant environmental harm.11 The Tenth Circuit agreed with the district court that “Colorado’s alleged chain of causation between the [NWPR] and the damage to state waters is pure speculation.”12 Colorado presented no specific facts showing that a previously permitted developer would decide to conduct dredge and fill activities illegally. As such, the court concluded that it is pure speculation that NWPR would increase, rather than decrease or maintain, the number of dredge and fill violations committed in Colorado.
With the stay now lifted, the NWPR is effective nationwide—for the time being. Courts continue to consider various challenges to the NWPR in jurisdictions across the country, including in Colorado. And it remains to be seen whether the Biden administration will attempt to rescind or modify the NWPR, and whether such efforts would survive challenges. In the interim, it is likely that legislation will be advanced in Colorado to create a new state dredge-and-fill permitting program. The Water Quality Control Division invited feedback in 2020 and early 2021 on the proper scope of waters impacted by the “permitting gap,” which will inform any new permitting program’s jurisdiction. However, critical details of the program are unknown, and there exist very few state dredge-and-fill permitting programs to provide clues. The “waters of the United States” debates continue.
This document is intended to provide you with general information regarding litigation over the federal Navigable Waters Protection Rule. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.
1 On March 1, 2021, the court also denied the government’s request to hold the case in abeyance.
2 Opinion, State of Colorado v. EPA, et al., Nos. 20-1238, 20-1262, 20-1263, at 18-21 (10th Cir. Mar. 2, 2021).
3 Id. at 19-20.
4 Id. at 20.
7 Id. at 21.
8 Id. at 22.
10 Id. at 23.
11 Id. at 24.