Court Overturns Injunction Regarding Colorado Water

Ruling muddies regulatory waters for the Navigable Waters Protection Rule.

March 09, 2021

WOTUS Ruling Clean Water Act

WASHINGTON, D.C.—A federal appeals court overturned an injunction that had blocked the Trump administration's Navigable Waters Protection Rule from taking effect in Colorado, reports It is unclear what impact this may have on the Biden administration’s plans on this Rule and adds to the uncertainty of how this may impact some convenience and gas station retailers in the state.

The ruling means that the federal government should not be blocked from implementing in Colorado a Trump Administration regulation that defines what waters are protected by the Clean Water Act, which will now be in effect nationwide.

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

Government officials in Colorado requested an injunction, saying the rule was unlawful, arbitrary and capricious, suffered from procedural flaws and violated the National Environmental Protection Act. The U.S. District Court for the District of Colorado granted the injunction based on the state's argument that it would face an increased enforcement burden.

However, the 10th Circuit panel ruled 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 appeals court judges said that the state's arguments about this increased burden amounted to "vague assertions," and that the district court "crossed over from reasonable inference to pure speculation" at the time it concluded that the state would have to take on a similar number of enforcement actions under the new rule. 

The EPA is expected to revisit the question at the heart of the rule—which waterways should be protected by the Clean Water Act—although the recent ruling points out issues the Biden Administration could encounter.

“Beyond the legal process and implications of this decision, NACS is watching to see whether the Biden Administration proposes to expand which waters will be protected under the Clean Water Act,” said Paige Anderson, director of government relations, NACS.

Expanding what waters will fall under WOTUS could lead to increased permitting and compliance costs,” Anderson said. “For example, if a convenience store or gas station is near or touching a protected waterway or site, the retailer could face additional permitting and Clean Water Act requirements.”

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