On June 19, a federal judge in San Francisco denied a bid by a coalition of 18 Democratic state attorneys generals to put the regulation on hold nationwide, ruling that the plaintiffs didn't show they had a strong enough chance of winning their challenge to the Navigable Waters Protection rule to warrant a preliminary injunction. The rule goes into effect today.

Friday’s hearing was the first big day in court for the EPA's rewritten Waters of the U.S. rule and is the first of several challenges working their way through the district courts warning of imminent and irreparable harm if the rule takes effect. 

U.S. District Judge Richard Seeborg concluded that the central Supreme Court case addressing the scope of the 1972 Clean Water Act, Rapanos v. United States , was focused on the maximum reach of the law but didn't address the minimum extent of its coverage — the question at issue in blue states' challenge. "In the absence of precedent construing what must be included as 'waters of the United States,' plaintiffs are left with little more than policy arguments that the narrowness of the 2020 Rule serves poorly to carry out the objectives of the CWA. As compelling as those arguments may be, they do not provide a sufficient basis for a court to substitute its judgment for the policy choices of the Agency," Seeborg wrote.

However, just a couple hours after Seeborg ruled, a federal judge in Colorado granted that state's request to put implementation of the rule on hold there. U.S. District Court Judge William Martinez concluded that the state was likely to succeed in proving that the Trump administration's definition of protected waterways violated the Rapanos ruling and that allowing the rule to go into effect, only to later be struck down, "would likely create unnecessary confusion among the regulated community about what standard really applies."

Click here for more information on the Navigable Waters Protection Rule.

Politico, 06/22/2020

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