be pleased the court jonathan doctor bill from the united states justice department mister rover will speak for two of appellants fifteen minutes and i will reserve two of my remaining thirteen minutes for a while the district court erred by concluding that a famously fractured supreme court decision interpreted in a famously ambiguous statutory provision addressing a materially different legal court in san francisco correctly recognized when denying a nationwide preliminary injunction based on the same arguments regarding the same rule colorado had no likelihood of success on the merits and has in fact the just report plurality the justice kennedy concurrence with justice stevens dissent or simply not addressing the legal question presented by the now towards protection case was analyzing what the clean water act says the agencies may regulate how far can they reach that can they regulate any hydrologic new connected weapons they can trace to the city where the case was not addressing the legal issue relevant here what the language because the case is simply a distinction the dissent itself said all that they were doing in that case was looking to determine whether the agency's construction was reasonable they work looking at how far the rule m main water act must be now janus nevertheless seek to overturn the now of water protection will based on an implicit argument that they have to go for it but that cannot be the teaching  arguably forecloses every formulation of waters of the united states proposed in reponse or proposed by the agencies thus far for example eight justices rejected justice kennedy's case by case significant  approach to colorado is arguing that the agencies now should have to go back to what was the basis of the preliminary injunction you're honest despite that right red flag that something was really wrong with the logic of the district courts o in brand x and chevron still recognizes agency authority to reinterpret statutes notwithstanding contrary prior court decisions so brand x allows reinterpret reinterpretation of a statute so long as the statutory language doesn't unambiguous leave our interpretation taken by an agency and there's been no such agency here or excuse me or audits there's been no such argument made here the argument is that statute notwithstanding the whether there are potus decision was controlling up for its purpose is legal holding and it's facts or not now the interpretation of the clean water act in the medical waters protection is reasonable and we know that because the agencies actually thoughtfully harmonize to key features of all of the various major condemns in the reponse decision they use justice scalia's interpretation of navigable waters as a starting point the appropriate reading of the of the or limit to the clean water act be agencies here actually included waters and wetlands that have a connection to navigable waters or perennial or intermittent tributaries a stopping point to the term navigable waters short of the interstate commerce clause colorado points only to generalized objective provisions of the clean water act and scam but of history where the supreme court has repeatedly made clear of course th generalize policy provisions and not be used by courts and litigants indicate the text of more specific implementations of it and in fact in the supreme court's making eighty five riverside baby case the supreme court specifically said quote neither of the sources for sharing back to the legislative history and the objective provisions quote neither of these sources provides unambiguous guidance for the core a quote about how to interpret the waters of the united states and so those provisions can be used to contradict and say that the babylon is protection rule interpretation is unambiguous wrong you're right moreover the agencies have consistent with those sources given the term watchers that's the term statute watchers it broad reading consistent with the legislative history the agents agencies have continued to extend water after a stiction to include adjacent well lands not just the water but the only issue on which they found a repertoire are this enforcement issue had really significant evidentiary problems not to be clear the district court rejected all of the other theories of harm that were argued by colorado on developers they also rejected of course that there would be any environmental harm given the it given the existing colorado bar and then bars any discharges to any state waters and that very critically the court looked at the base line which was to say that nothing about the navigable waters protection would make allegations that people might pollute contrary to the law any more or less likely as a result of that of that of new rule therefore there's no harm traceable was done on a passing sentence of hearsay in one wind of one declaration and thereby a major federal regulatory problem which a district court in again in san francisco a look at all the same arguments and rejected whether they raised it directly we're looking at whether the district court abused its discretion in making the affirmative determination that this argument was raised correct you're looking at both your honor but but but even accepting that the argument was sufficiently raised and we think we think that that this argument was not sufficiently flagged for there to have been an injunction against a major regulatory program there are still multiple eviden joe let me get those real quickly so even if you accept there are three to five federal enforcement actions there is no evidence in the record that as to what federal regulatory enforcement policy is with respect to e p a enforce actions and whether that in foresman policy would ever have actions brought in the narrow d marginal disputed waters between the navigable water protection role any significant nexus so the courts flat out assumed that st of all there will be it that again while that has against that baseline there would be an incremental impact which it by the way studiously and very carefully rejected all of its other arguments but missed the boat entirely here but there was no evidence that the regulatory enforcement problem i'll see regularly brings actions or ever bring such actions in these disputed waters but secondly even if you soon they did the timing question that any such actions would not be brought in that gap the period of time it would irreparable harm to colorado as colorado your honor there is no such evidence and so it could easily be the case that after the kate after that after the being went to summary judgment and summary judgment was decided that th reactions could be brought later at that time and utilizing the preexisting law that would continue to to be on the books for you which in particular under the state law at that stage law has never changed in remains in force for both my colorado bright those time but will give them some time on rebuttal and that they can split however they decide on the fly right ok thank you thank you good morning i'm at least a card going rover on behalf of intervener a that when you have a batting well and such as they are indistinguishable that you are going to have this connection such that it is appropriate to include the wetlands in the regulation and if there are no further questions you would ask the court to reverse the district court on the likelihood of success and vacate the state as greg would you go ahead and set the clock for seventeen minutes so that i can give two minutes on  d thank you a great thank you very much judge q entering the stay here was well within the district court's discretion and this court should not disturb it for three reasons st it is not reasonable under chevron agencies to define waters of the united states using a definition that five justices have rejected and is inconsistent with the clean  purpose nd and independently agencies enacted the rule in violation of the administrative procedure act and the corps of engineers issued its rule in violation of the national environmental policy act  rd colorado faces substantial irreparable harm if the rule goes into effect and presented evidence of that harm to the district court turning st to the reponse of decision it makes clear the new rule is not reasonable under chevron the government the business interveners and colorado all agree that we are in chevron step to territory where we look the agency must  a rule that is reasonable and it is not reasonable here because five members of the supreme court have said the rule cannot be as the government now claims it is because five justices have said the rule cannot be as a government claims it is it is simply not reasonable for the agencies to enact that rule and we know that when we look at the reponse decision itself it says in the three key writings by justice scalia justice kennedy and justice stevens that five of the justices said a reasonable interpretation of the clean water act says that the floor must be navigable waters plus waters that have a significant nexus to those waters and under that determination the corps and  i'm looking at what each just just said because we're not in mark's territory or what's controlling because we agree with your honor that there is no controlling decision there but what we're looking at is each writing and we're looking at that the plurality opinion just as lee had four votes justice kennedy spoke alone and then justice stevens spoke in an opinion that was joined by four and when when you look at the totality of the opinion it was five votes said that a chevron applies keep in mind the plurality says chevron doesn't apply that rule can can mean and must only mean wetlands physically connected to relatively permanent and continuously flowing rotters five said chevron applies and under chevron a reasonable rule there's a lot of discretion for the agency but it must include at least those waters that have a significant  you look at the five and it's no surprise based on that this is not just sort of our theory here every court of appeals to have looked at this issue has concluded that the clean water act must cover at least that as set forth by justice kennedy the significant nexus test and the solicitor general the united states recognized in a filing last year that fact that every court of appeals to look at this has said the rule the test from a part of i significant nexus test and so when we when you have that backdrop for the agencies to come in and adopt a much lower standard is simply not reasonable under the joined by justice kennedy which said it was not in that particular case they said that rule specific rule was not consistent with the agency's obligations but if you took that same analytic framework and applied it to the rule at issue today in other words this rule was being challenge at the supreme court and the question was was it legal we know what the outcome would be under the riposte decision because justice kennedy would say no it is not because it does not opinion so not be reasonable so it was not that question was not squarely presented that is some advocacy by my friends to present the case saying it was it was it was different then it was what was presented was was that rule court said that definition was not but same too it's a question that that the district court was presented and we have in this case if he has this new rule consistent with the clean water act and we submit that under chevron where we all agree that this interveners a federal government and colorado agreement chevron step two it is simply not reasonable to adopt different agencies to adopt a rule that five justices have express what happened but we're required to show referable harm to entertain an injunction and if you disagree with us then we don't keep our injunction ok that i know that what i'm saying is we're are you were are the parties  country so the case would be ongoing all that's an issue here supplementary injunction or the a p a five section seven thousand and five power to stay the enforcement of the rule right now in colorado the old rule applies take a real stringent requirement in that you're not going to fill in the wetlands or any of that were not given you any a permit but if the government grants you permit then we will recognize that permit now why should you get a plymouth airy injunction on colorado's own creation where the law is d regard is because you have no laws because for decades colorado has relied on the stream miles in colorado is our estimate of what would no longer be covered without giving us the time we absolutely agree that ballpark we could put in place a regulatory regime that could fill that gap but we can't do that in sixty days which is all that they gave us under the rule and that's why we are irreparably harmed because we haue a lot of legislature was not in session from the time the rule was issued to the to its effective date and they purposely  well your honor our constitution limits the number of days our legislature can be in session and with kobe those days have shrunk that is correct but but importantly we have not had an opportunity to fix this in the notice i think very telling what the federal government relies on in this reliance argument that we made in their reply brief page nine they point to page nine to eleven they say look we recognize the references there say we recognize that it takes political capital and just the resources to change state law but we're not going to stick you late on what the government's going to or state governments are going to do in response to this rule but we acknowledge that colorado has no permanent process and so we submit the harm from giving a sixty days to stand up a permanent process when under the current constitution our legislature wasn't even in session during that time and we tried our level best to try to get something going but we need a legislative  authority for that to happen and that is arbitrary and capricious in our view and creates harm now of course if they gave us twelve months this argument be much much weaker because it would have the time and the ability to put up the resources to put that new permanent process in place but when they drop the scope of waters by roughly thirty percent covered waters in colorado from around eighty percent to thirty percent of the waters and they don't give us time to put in or a very regime to fix that and the permanent process is really important because this information forcing rule it requires polluters to come to us and say we're going to do this here's how we're going to minimize damage here's how we're going to put it back when we're done and here's how we're going to mitigate it elsewhere without that state to create your own enforcement program and that that in the end what i call the enforcement burden on the state is the irreparable harm here correct and  sides of the same coin because the resources that we have to expand are much greater because there is no permanent process it's a difference between people coming to the government to say i plan to do this may i have permission  us required then this is a harm the district court found for us to go out and find people over thirty percent of the waters that now are our waters and not the federal government waters and rather than them come to us we have to go to them and that's the harm the district court the corps of engineers refuse me to administer that program like forty five other states for two thousand and thirty some years and so in the context of that substantial reliance for a tremendous amount of time it is not unreasonable for colorado to not have a backup permanent process at the go in the event that the rule changes we submitted in april th in our comments to this proposed rule and said exactly this if we don't have a permanent  process and it would cause harm to us for it to be implemented takes time for state laws to change in the government when they issue the rule in april of two thousand and twenty and give us sixty days which was under any fair reading of  they're going to change the rule several times but until the final rule is issued what's the st indication that we had made the comment about state in forstmann and that that comment did not lead to a change in the policy so we did not know the rule request that if it does send it back to the district court to address in the st instance that the court do what it did in rutherford united states which is use the authority under five u s c seven o five which is the basis of the district court's stay  here keep the stay in place keep the status quo in place in colorado while the district court addresses those issues and this i can make one last point on irreparable harm the government spends a lot of time talking about the gaps in our evidence but they had an opportunity to present evidence to the district court of how the federal enforcement works they knew our arguments we submitted declarations from state workers state folks that administer this including this roughan who talked about the harm from enforcement the government never responded with evidence so the district court ruled on what it had before it mcgovern had a chance an opportunity to make those arguments using facts rather than after the fact legal arguments and they chose not to do so and we think that would be a very unfair basis i've got to ask you this question who has the burden to show our acuity we have the burden of showing harm we showed district court with evidence if i may answer and the government did not present evidence going the other direction even though they had a full opportunity to do so so we don't think it's fair for us to present evidence and the government not to present evidence and then them to say now our evidence is sufficient or not enough it was a factual inquiry and the government chose not to or that evidence and of course you can can come and say what we showed wasn't enough but for them to say that what we showed has all these holes and gaps about their conduct and they chose not to present any evidence is a step too far from our perspective  were limited to twenty two pages to address all the issues they have the burden to present evidence to be all for winter factors they did not do so we didn't cite evidence to the record that they were to take judicial notice of the many justice said maybe maybe not meet the more evidence and forty four dollars justices said merely that it was reasonable to read the act that part that's the that was all the farther than those four justices when not with all due respect that they must reach whether the court's definition is reasonable and they went on to say the definition is plainly reasonable but on its face and in terms of the purposes of the afterall so they were not holding that that's unambiguous we required that the statute must reach those wetlands or other similar but it's an open not a question now let me read to the harm they also said they only had sixty days as as your honor pointed out they had all kinds of notice and this was an argument that was maybe too high and rejected by the district court and time you are thank you for your arguments yea we will take this under advisement