In what will be the first of many legal and regulatory challenges to the Trump administration’s scuttling ofan Obama-era effort to impose federal zoning on millions of acres of private land, a federal court hastossed out Colorado’s request that the Environmental Protection Agency (EPA) and Army Corps ofEngineers (Corps) be enjoined from implementing the Trump rule pending a determination of the meritsof the case.

In its March 2 ruling in Colorado v. EPA, et al, the U.S. District Court of Appeals for the Tenth Circuitoverturned a lower court decision that had enjoined EPA and the Corps from carrying out the Trumprule.

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 overdischarges into “navigable waters of the United States” but provides no real definition of its terms. TwoSupreme 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 EPAand the Corps sweeping powers to regulate activities on private land, including routine farming andranching operations. Two federal courts rejected key provisions of the Obama WOTUS rule. And in April2020, the Trump EPA and Corps set aside much of the Obama rule and promulgated their own NavigableWaters 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 onprivate 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 drainageditches 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 environmentalgroups 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 provideadequate protection to U.S. waters, and a district court agreed, issuing an order staying the effectivedate of the NWPR and enjoining EPA and the Corps to continuing to administer the CWA under the then-current regulations.

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 immediaterelief but hasn’t shown that it will suffer irreparable injury absent a preliminary injunction.”​

Though narrowly focused, the ruling represents a setback for those hoping for a quick legal killing of theTrump rule. The Biden administration, filled to the gills with environmental activists, will no doubt targetthe Trump rule for extinction. As the 10th Circuit Court’s decision shows, however, the federal judiciary,now stocked with over 230 Trump-appointed judges and three Supreme Court justices, will be lessfriendly to an overreaching administrative regulatory state.

Siding against Colorado in its failed lawsuit were Chantell and Michael Sackett, a couple who were keptfrom building their lakefront dream home in northern Idaho by the Obama EPA. Their propertycontained no “waters of the United States,” navigable or otherwise. Thanks to the Pacific LegalFoundation, the Sacketts won a Supreme Court case that allowed them to challenge EPA’s action.Joining the Sacketts in opposing Colorado’s challenge were such groups as the American Farm BureauFederation, American Road and Transportation Builders Association, National Alliance of Forest Owners,National Cattlemen’s Beef Association, and the U.S. Poultry and Egg Association.


By Bonner Cohen, Ph. D. |March 9th, 2021

March 9, 2021 at 03:40AM