State of Colorado v. EPA, 989 F.3d 874

Background

In April 2020 EPA and the Army Corps issued the Navigable Waters Protection Rule (NWPR), narrowing the agencies’ regulatory definition of “waters of the United States.”
Colorado sued under the APA and NEPA, challenging the NWPR as unlawful and arguing it would reduce federal protection for many state waters.
Colorado does not administer a Section 404 program and relies on Corps 404 permits; Colorado law broadly bans discharges into state waters absent authorization.
The district court granted a preliminary injunction (without a hearing) staying the NWPR in Colorado and ordered the Agencies to continue pre‑NWPR Section 404 administration; the Agencies appealed to the Tenth Circuit.
Colorado argued the NWPR would (1) create a permitting gap that delays projects or forces Colorado to set up costly permitting, (2) increase Colorado’s enforcement burden, and (3) cause environmental harm from illegal fills.
The Tenth Circuit reversed and vacated the preliminary injunction, holding Colorado failed to show irreparable harm (a required preliminary‑injunction element) and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion in granting a preliminary injunction against the NWPR in Colorado	Colorado: NWPR will cause immediate, irreparable harms (permitting gap, increased enforcement costs, environmental damage), justifying a §705 stay/prelim injunction	Agencies: Colorado failed to show irreparable, imminent, and non‑speculative injury; injunction is extraordinary and alters status quo	The district court abused its discretion because Colorado did not show irreparable harm; injunction reversed and vacated
Whether Colorado is likely to succeed on the merits (validity of NWPR under Rapanos and APA)	Colorado: NWPR conflicts with Supreme Court precedent (Rapanos) and is arbitrary, capricious, and procedurally defective	Agencies: NWPR is a permissible interpretation of the Act (closer to Rapanos plurality), provides clarity, and lawful under the APA	Court did not decide likelihood of success on merits because irreparable harm was dispositive; merits not reached on appeal
Whether Colorado will suffer an increased enforcement burden that is irreparable and imminent	Colorado: EPA/Corps enforcement will drop under NWPR, forcing Colorado to divert scarce resources to enforce state law, causing irreparable programmatic harm	Agencies: Colorado’s evidence (one declarant) is vague, lacks timing and causation; asserted burden is speculative and not shown to be imminent	Held that Colorado’s evidence was insufficient—enforcement burden was speculative, not shown to be certain, actual, or imminent; cannot support preliminary relief
Whether the permitting‑gap and environmental harms are cognizable and imminent	Colorado: Narrowing federal jurisdiction creates a permitting gap (state cannot authorize fills), leading to delayed projects, economic loss, and increased illegal fills harming wetlands	Agencies: Any economic injury is self‑inflicted by Colorado’s state law; environmental harm is speculative and depends on independent third‑party choices	Held that economic harms are self‑inflicted and environmental harms are too speculative and attenuated to establish irreparable injury or standing for preliminary relief

Key Cases Cited

Sackett v. EPA, 566 U.S. 120 (2012) (describing uncertainty over the scope of the Clean Water Act)
United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (deference to Corps’ inclusion of adjacent wetlands)
Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) (limits on Corps jurisdiction over isolated, intrastate waters)
Rapanos v. United States, 547 U.S. 715 (2006) (plurality and Kennedy concurrence framing competing tests for CWA jurisdiction)
Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018) (context for post‑2015 rule litigation and agency action)
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (establishing injunction standards and necessity of irreparable harm)
New Mexico Dep’t of Game & Fish v. U.S. Dep’t of the Interior, 854 F.3d 1236 (10th Cir. 2017) (preliminary‑injunction standard; irreparable harm dispositive)
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (third‑party causation and standing limits)
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987) (environmental injuries often irreparable)
Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (self‑inflicted injury doctrine affecting cognizability of claimed harms)