Court Ruling Means Navigable Waters Protection Rule Now in Effect in Colorado

On March 2, the 10th Circuit Court of Appeals overturned a preliminary injunction on the Navigable Waters Protection Rule (NWPR) issued by the Colorado District Court. The ruling means that all states are now regulated by the Navigable Waters Protection Rule (NWPR) — at least until the Biden administration develops a new rule or an amendment.

The state of Colorado challenged the NWPR and sought a preliminary injunction due to the impacts the rule would have on the state’s protection of certain waters. To succeed with a preliminary injunction motion, the plaintiff must prove a likelihood of success on the merits, an irreparable harm, the balance of the equities weighs in favor of the plaintiff and it is in the public interest.

The 10th Circuit’s ruling addresses only Colorado’s failure to prove irreparable harm. The 10th Circuit was critical of the district court’s reasoning. It rejected:

• The district court’s holding that the NWPR would place an increased enforcement burden on Colorado.
• Colorado’s theory that the NWPR would freeze development projects because Colorado currently does not have its own Section 404 permitting program. The court said this was a self-inflicted harm.
• Colorado’s theory that the NWPR’s narrowing of federal jurisdiction would cause environmental harm because developers would violate state law and illegally dredge and fill waters. The 10th Circuit said this was pure speculation.

As a result of the ruling, the NWPR is now in effective in Colorado.

Learn more about the NWPR on nahb.org.