In State v. U.S. Environmental Protection Agency, 989 F.3d 874, 879 (10th Cir. 2021), the Tenth Circuit reversed the district court’s decision to enjoin implementation of the EPA’s and Army 10th Circuit SpotlightCorps of Engineer’s Navigable Waters Protection Rule (NWPR). At the district court, Colorado obtained a preliminary injunction against the NWPR’s implementation. On appeal, without reaching the merits of Colorado’s APA challenge, the circuit court held that Colorado had not shown sufficient irreparable injury and vacated the preliminary injunction.

Clean Water Act

“Congress passed the Clean Water Act in 1972 ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ To that end, the Act prohibits ‘the discharge of any pollutant by any person’ without a permit into ‘navigable waters,’ which it defines as ‘waters of the United States.’” Id. at 879-80 (citing 33 U.S.C. §§1251(a), 1311(a), 1362(7), (12)). Id. There is no clear definition of “waters of the United States,” leaving the EPA and the Corps (the “agencies”) with the authority to regulate, but not without risk of legal challenges. Id. (“Rather than provide a reasonably clear rule regarding the scope of the Clean Water Act, Congress delegated that duty to the EPA and the Corps.”).

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