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Tenth Circuit Reinstates Navigable Waters Protection Rule

Yesterday, the Tenth Circuit Court of Appeals reinstated the Navigable Waters Protection Rule (NWPR) in Colorado, meaning that the NWPR is now effective across the entire country. In a decisive win for AFBF, the Court reversed the District of Colorado’s decision to preliminarily enjoin the rule, which had prevented the NWPR from becoming effective in Colorado. The Court sharply rebuked the lower court’s decision, finding that the State of Colorado had failed to demonstrate it would be irreparably harmed by the NWPR. Notably, the Tenth Circuit panel was made up judges appointed by Presidents Barack Obama, Ronald Regan, and Donald Trump.

AFBF and a broad coalition of business and industry organizations intervened in the case (among many others) to defend the NWPR. Over the last several years, AFBF has led the charge to repeal and replace the 2015 Waters of the United States (WOTUS) rule and has been heavily involved in litigation that succeeded in blocking that rule in 22 states (and parts of New Mexico). The NWPR provides much greater clarity in identifying WOTUS than previous rules and guidance provided by EPA.

The Tenth Circuit decision can be found here.