Mar 92021

Trump Navigable Waters Protection Rule Revived in Colorado by the Tenth Circuit

Samuel B. Boxerman and Allison H. In
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The U.S. Court of Appeals for the 10th Circuit has vacated a stay of the Navigable Waters Protection Rule (NWPR) in Colorado, reversing the one court that had stayed the Trump administration’s rule redefining the meaning of “waters of the United States” under the Clean Water Act. In Colorado v. EPA, the 10th Circuit held that the District Court for the District of Colorado abused its discretion in granting injunctive relief to the State of Colorado to preliminarily enjoin the NWPR.  A unanimous panel held that the State had failed to demonstrate that it will suffer irreparable injury if the rule went into effect.  This decision came shortly after the 10th Circuit rejected the Biden administration’s request to stay the appeal of the district court’s ruling for 60 days.  In February, the Department of Justice, on behalf of the U.S. Environmental Protection Agency and the Army Corps of Engineers, had asked for the stay in order for the agencies to review the NWPR pursuant to President Biden’s Executive Order 13990.  The 10th Circuit declined to address the other factors relied on by the district court in granting the preliminary injunction in remanding the case for further proceedings.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Allison H. In

ain@sidley.com

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