If you are keeping notes, the wrangling, disputes, and litigating over what is and is not a regulated or jurisdictional water of the United States had a new entry into the ledger. This time the news comes from The United States Court of Appeals for the Tenth Circuit.
As you may recall, last April, the definition of regulated waters changed again. My colleague, Matt Schroeder, wrote in a blog on May 8, 2020: “On April 21, 2020, the Department of the Army (Corps of Engineers, Department of Defense) and the Environmental Protection Agency published ‘The Navigable Waters Protection Rule (NWPR): Definition of ‘Waters of the United States.’ This rule replaces the previous Waters of the United States (WOTUS) rule.”
Colorado joins the rest of the United States in defining waters of the US (Photo by Kait Herzog on Unsplash).
NWPR in 49 States
The NWPR was now the law of the land except for one state: Colorado. The State of Colorado filed a Complaint for Declaratory and Injunction Relief. According to the Complaint, the NWPR “…lacks any reasoned basis in science and is otherwise arbitrary and capricious under the Administrative Procedure Act (‘APA’), 5 U.S.C. §§ 551 et seq. Moreover, the U.S. Army Corps of Engineers (the ‘Corps’) has failed to consider the significant environmental impacts of this major federal action in violation of the National Environmental Policy Act (‘NEPA’), 42 U.S.C. §§ 4321 et seq.”
Three days before the NWPR took effect, U.S. District Judge William J. Martinez granted the state its request for a preliminary injunction. So, Colorado would continue to operate under the previous WOTUS rule.
According to Courthouse News Service, “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.” So, this ruling set Colorado apart from the rest of the United States in defining waters of the US.
Tenth Circuit Reverses District Court Ruling
Fast forward to March 2, 2021, when the United States Court of Appeals Tenth Circuit reversed the ruling by the US District Judge.
In the ruling, the 10th Circuit stated in part, “In sum, the district court abused its discretion when it granted Colorado’s request for preliminary injunctive relief. So we REVERSE and VACATE the district court’s order staying the effective date of the NWPR and enjoining the Agencies to continue administering Section 404 of the Clean Water Act in Colorado under the pre-NWPR regime. We also REMAND to the district court for further proceedings consistent with this opinion.”
An interesting side note pointed out in Courthouse News is the case was heard before U.S. Circuit Judges Carolyn B. McHugh, an Obama appointee, and Allison Eid, a Trump appointee, and Baldock, a Reagan appointee. A fairly diverse group of appointees.
Will Biden Hit Reset
With all 50 states now using the same NWPR to evaluate regulated waters, are we done with this debate? Maybe. From Bloomberg Law, “The Biden administration is expected to ask courts to put WOTUS litigation on ice to give the Environmental Protection Agency and the Army Corps of Engineers time to decide if and how to rewrite the Trump administration 2020 rule lifting federal protections for many small waterways nationwide.”
EPA Administrator Michael Regan
As reported in E&E News, “EPA administrator nominee Michael Regan yesterday appeared to somewhat ease Republican anxiety over the fate of President Trump’s controversial rule that rolled back federal protections for streams and wetlands by vowing to listen to farmers at the center of the fight.” Note: Regan has since been confirmed.
Regarding WOTUS/NWPR, Regan said, “What I’m hopeful for is that we don’t have to go with the slingshot approach, that we can look for a common ground where we give the farming community and the environmental community some certainty that as we move forward that we’re going to follow the science, follow the law, look at a pragmatic approach that doesn’t overburden the farmer.”
For now, the definition of regulated waters is the same in all states. Whether this definition changes under the Biden Administration will be closely watched.
If you have any questions or need assistance with an environmental issue, contact me at 248-932-0228, Ext. 125.
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