• Mark Ryan

10th Cir. Reverses Colorado WOTUS Case

Colorado was the only state that manage to sneak out of the 2020 WOTUS rule, but no more. The Tenth Circuit, in a well-reasoned opinion, reversed on narrow grounds, sending the case back down to the district court. The case was argued by the prior administration. It will be interesting to see what the Biden DOJ does with this. As soon as EPA has an administrator, it will likely coalesce around a WOTUS policy going forward. In meantime, expect to see a rear-guard action in the courts.

Colorado v. EPA, ___ F.3d ___, 2021 WL 790999 (10th Cir. 2021) (reversing district court PI enjoining the 2020 WOTUS rule in Colorado, held that the district court abused its discretion in issuing the injunction because the state had not shown that it would suffer irreparable injury absent an injunction; the state did not prove that a regulatory enforcement burden was certain from the withdrawal of waters under the 2020 rule and it did not prove that the new rule would result in illegal dredging and filling in disputed waters)

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