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Colorado v. U.S. Environmental Protection Agency

ELR Citation: 50 ELR 20151
Nos. 20-cv-1461-WJM-NRN, (D. Colo., 06/19/2020) (Martinez, J.)

A district court stayed the Navigable Waters Protection Rule, which substantially narrows the definition of "waters of the United States" that are subject to federal regulation under the CWA, in Colorado. Colorado argued that the Supreme Court's ruling in Rapanos v. United States foreclosed the approach taken in the rule, which intended to take Justice Scalia's plurality opinion in Rapanos, including its categorical exclusion of "channels containing merely intermittent or ephemeral flow," and make it the new law of the land. The court found that while nothing in Rapanos foreclosed reinterpretation of "waters of the United States," the decision did foreclose the reinterpretation at issue here, and thus concluded that Colorado was likely to succeed in proving at least that the rule was "not in accordance with law." It therefore stayed the rule in Colorado.