Thursday, March 04, 2021

10th Circuit Rules Against Colorado in ‘Waters of the US’ Dispute (written by a judge who interviewed me 47 years ago for Senate staff)

The federal government should not be blocked from implementing in Colorado a Trump-era regulation defining what waters are protected by the Clean Water Act, a 10th Circuit panel ruled Tuesday. In April 2020, the U.S. Environmental Protection Agency and the Army Corps of Engineers defined what constitutes “waters of the United States” in a regulation called the Navigable Waters Protection Rule. The definition clarifies which waters are protected by the Clean Water Act and require permits for the discharge of pollution. The rule narrowed the definition of protected waters to a “smaller number of Colorado waters than at any time since the passage of the Clean Water Act in 1972,” according to the state’s complaint, filed in May 2020. The state claimed the rule was unlawful, arbitrary and capricious, suffered from procedural flaws and violated the National Environmental Protection Act. Three days before the rule took effect, U.S. District Judge William J. Martinez, a Barack Obama appointee, granted the state its request for a preliminary injunction, which required federal agencies to continue to administer the Clean Water Act under the prior regulations. A key point of Martinez’s ruling was the Section 404 permit process, which pertains to the Army Corps of Engineers’ authority under the Clean Water Act to issue permits for the release of dredged or fill material into “navigable waters.” According to Martinez’s ruling, the state was working to amend a statute to set up its own Section 404-type permitting program but that effort was disrupted by the Covid-19 pandemic. “In other words, regardless of cause, the record shows that violations of Section 404 consistently happen, requiring enforcement action,” Martinez wrote. “At least some of that enforcement burden (i.e., filling in Disputed Waters) will now fall in Colorado’s lap. That share of the enforcement burden is not at all minimal or speculative. Colorado asserts, and the Agencies do not dispute, that about half of state waters protected by the Current Rule will be unprotected by the New Rule.” “For these reasons, the Court finds that Colorado is poised to suffer an injury in fact that is fairly traceable to the New Rule, and would be redressed by a favorable ruling in this case. Moreover, that injury is certainly impending and would be irreparable,” Martinez added. The federal agencies, along with 14 national trade associations, appealed, and on Tuesday the 10th Circuit panel ruled in their favor, finding that Colorado did not prove it would suffer “irreparable injury” without a preliminary injunction and that the lower court abused its discretion when it granted the state such relief. “The record evidence raises, at most, the mere possibility of the potential for a small increase in Colorado’s enforcement burden at some point in the future,” Senior U.S. Circuit Judge Bobby Baldock wrote in the panel’s ruling Tuesday. U.S. Circuit Judges Carolyn B. McHugh, an Obama appointee, and Allison Eid, a Trump appointee, joined Baldock, a Reagan appointee, on the panel...MORE


In 1974, the newly elected US Senator from NM, Pete Domenici, decided he wanted someone with an ag background on his staff. I was encouraged to apply, and the Senator had Baldock, who was in private practice in Roswell, NM at the time, conduct my initial interview. Guess I did OK, because I was then interviewed by the Senator's AA, Dennis Howe and was offered the position. Much has transpired since then, but I should take the time to write about the interview and how I was hired.

Sure glad Baldock got it right on water, too. Here is his decision.

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