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The Navigable Waters Protection Rule—the rule replacing the Waters of the United States (WOTUS) Rule—went into effect July 22. However, the state of Colorado was successful in receiving a stay against the new rule. Pictured here, wetlands in Powell County, MT.

The Navigable Waters Protection Rule (NWPR) took effect Monday, July 22 in all states but one: Colorado. The rule replaces the Waters of the United States (WOTUS) Rule and is largely supported by agriculture and industry groups.

A federal judge in California blocked an effort by 17 state attorneys general to request a stay against the rule, but Colorado was successful in suing the Trump administration and receiving a preliminary injunction against the rule’s implementation.

In a lawsuit led by Colorado Attorney General Phil Weiser against the Environmental Protection Agency and the U.S Army Corps of Engineers, Colorado argued the new rule conflicts with the text of the Clean Water Act (CWA) and “ignores sound science.” The state also claims NWPR will “deprive the state of effective tools to keep its streams and wetlands clean.”

Colorado alleged NWPR violates the Administrative Procedures Act (APA) as well as the National Environmental Policy Act (NEPA).

The suit further reads the new rule leaves a substantial portion of Colorado’s ephemeral streams and wetlands without federal protections, which the state has relied on for many years. The state argued NWPR reduces federal jurisdiction to the smallest number of Colorado waters since the CWA was passed in 1972, based on the rule’s new definitions of tributaries and wetlands.

The rulings

Judge William Martinez of the U.S. District Court for the District of Colorado ruled in favor of the state June 19. In a 27-page document, Martinez agreed the new rule violates the APA and that the public interest is served by not allowing the rule to take effect at this time.

On the same day as Martinez’s ruling, Judge Richard Seeborg of the U.S. District Court for the Northern District of California denied a nationwide stay request from California, Washington, Oregon, New Mexico, and 13 other states.

In his ruling, Seeborg stated, “Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different.”

However, the complaint was limited to whether the rule was in compliance of APA.

“In the absence of precedent construing what must be included as ‘waters of the United States,’ plaintiffs are left with little more than policy arguments that the narrowness of the 2020 Rule serves poorly to carry out the objectives of the CWA,” Seeborg wrote. “As compelling as those arguments may be, they do not provide a sufficient basis for a court to substitute its judgment for the policy choices of the agency.”

Additional challenges to NWPR are in the works in other federal courts, as the definition of WOTUS has been the subject of controversy and litigation ever since the CWA’s passage.

In his ruling, Seeborg outlined that in order for a stay to be issued, the plaintiff must establish: It will succeed on the merits; it will suffer irreparable harm; the balance of equities tip in its favor; and an injunction is in the public interest.

The judge concluded “WOTUS” is ambiguous, but since precedent does not exist in terms of what must be included as “WOTUS,” the states were relying primarily on policy arguments. To which Seeborg wrote he cannot substitute his judgement for EPA policy choices.

National Cattlemen’s Beef Association (NCBA) was one of several groups to file motions against the states’ complaint. “The Trump administration’s rewrite of the 2015 WOTUS definition provides much-needed clarity for agricultural producers and maintains important agricultural exemptions,” NCBA said in a released statement.

WOTUS background

The redefinition of WOTUS was in the works shortly after President Donald Trump took office, and was finalized in late January 2020. The new NWPR specifies four specific categories of waterways that are regulated by the federal government.

According to a report by DTN, traditionally regulated bodies such as territorial seas and major rivers, “perennial intermittent tributaries,” certain lakes and ponds that contribute to navigable waterway flow, and wetlands “adjacent to jurisdictional waters” fall under federal rule.

Farm watering ponds and artificial lakes will not be regulated, nor converted croplands or wetlands not near a jurisdictional water body.

NCBA has voiced its support for the new rule since its finalization, with Past President Jennifer Houston saying back in January, “NCBA relentlessly fought WOTUS on Capitol Hill, at the agencies, and in the courts. Today, we can rest a little easier knowing that some power has been put back in the hands of landowners.”

However, New Mexico Cattle Growers’ Association has had a case against the new rule since last fall, arguing the new rule doesn’t roll back enough protections. Oregon Cattlemen’s Association and Washington Cattlemen’s Association also filed complaints last spring. — Anna Miller, WLJ editor

Lawsuit: Rule “ignores sound science”

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