In what will be the first of many legal and regulatory challenges to the Trump administration’s scuttling of
an Obama-era effort to impose federal zoning on millions of acres of private land, a federal court has
tossed out Colorado’s request that the Environmental Protection Agency (EPA) and Army Corps of
Engineers (Corps) be enjoined from implementing the Trump rule pending a determination of the merits
of the case.
In its March 2 ruling in Colorado v. EPA, et al, the U.S. District Court of Appeals for the Tenth Circuit
overturned a lower court decision that had enjoined EPA and the Corps from carrying out the Trump
At issue is nearly five-decade-old confusion over what constitutes “waters of the United States” (WOTUS)
under the 1972 Clean Water Act (CWA). The CWA grants EPA and the Corps regulatory jurisdiction over
discharges into “navigable waters of the United States” but provides no real definition of its terms. Two
Supreme Court rulings and other legal challenges failed to clean up the mess.
Trump reverses Obama WOTUS rule
In 2015, the Obama administration “clarified’ the legal confusion by implementing a rule granting EPA
and the Corps sweeping powers to regulate activities on private land, including routine farming and
ranching operations. Two federal courts rejected key provisions of the Obama WOTUS rule. And in April
2020, the Trump EPA and Corps set aside much of the Obama rule and promulgated their own Navigable
Waters Protection Rule (NWPR). NWRP was an effort to reinsert the word “navigable” into the phrase
“waters of the United States,” so the feds wouldn’t be able to interfere with commercial activities on
private land that do not impinge on rivers, streams, bays, and other such bodies of water.
Had the Obama WOTUS rule, which expanded federal regulatory jurisdiction to such things as drainage
ditches and stock ponds, stayed in place, obtaining federal permits would have become a nightmare.
Landowners and small businesses would have faced the constant threat of lawsuits by environmental
groups alleging harm to bodies of water by almost any activity carried out on rural property.
Colorado, now politically dominated by urban interests, challenged NWPR, arguing that it didn’t provide
adequate protection to U.S. waters, and a district court agreed, issuing an order staying the effective
date of the NWPR and enjoining EPA and the Corps to continuing to administer the CWA under the then-
That decision has now been tossed out.
“The question before us is straightforward: Did the district court abuse its discretion when it granted
Colorado injunctive relief? The answer is yes,” the appeals court ruled. “Colorado asked for immediate
relief but hasn’t shown that it will suffer irreparable injury absent a preliminary injunction.”
March 9, 2021 at 03:40AM