Supporters of the new Navigable Waters Protection Rule (NWPR), formerly the WOTUS Rule, were pleasantly surprised  on June 19 when the Federal District Court for Northern California ruled against 17 states, the District of Columbia, and New York City, which sought a nationwide preliminary injunction to stop the rule from taking effect across the country on June 22.  Supporters and opponents of the rule alike had expected the judge to grant the injunction.

In a straightforward, well-reasoned and thoughtfully worded decision, the judge found the states to be making “policy” arguments over how to implement the Clean Water Act (CWA). The ruling states that the CWA leaves legal room for different policy interpretations and that EPA and Army Corps had adequately explained their policy decisions within CWA’s lawful boundaries, including why the “science” does not dictate a different rule. The decision exposes numerous flaws in the legal merits of the states’ arguments, raising serious questions about how they will fare not only when the suit gets to summary judgment in this court, but also when such arguments are used in other federal courts when additional suits are filed.  (See State of California, et al., v. Andrew Wheeler, et al., Case No. 20-cv-03005-RS.)

The exception is Colorado. A  judge in the Federal District Court for Colorado, on June 19, granted an injunction against the rule taking effect in that state pending further arguments and a summary decision. The opinion is confusing as it includes internal inconsistencies, and its discussion would appear to lead to a different decision.  For now, the pre-2015 WOTUS rule, supplemented by the EPA’s guidance, is now in effect in Colorado.  (See State of Colorado v. U.S. Environmental Protection Agency et al., case number 1:20-cv-0146).

While this is a setback for NWPR, it is limited in scope. Supporters of NWPR take heart in the strength and clarity of the views expressed by the federal court in California and have confidence that those arguments will ultimately prevail in the broader federal legal system, including the Supreme Court.

Please contact UEP staff if you would like copies of either court’s decision.