• Mark Ryan

Another WOTUS Challenge Is Filed Today

Earthjustice today is filing a 29-page complaint in the W.D. of Washington challenging the WOTUS rule. This brings to at least seven the number of lawsuits filed against EPA and the Corps over the new WOTUS rule. Interestingly, three of them are in the 9th Cir. (PLF in Oregon, 18 states in N.D. Cal. and now Earthjustice in the W.D. Wa.). Earthjustice is representing the Sierra Club, Puget Soundkeeper, the Idaho Conservation League and Mi Familia Vota. A companion case is being filed in Arizona.

Because the complaint includes the Idaho Conservation League as a plaintiff, any stay issued by the court would likely apply to at least Washington and Idaho if a nationwide stay is not granted (likely). That would be interesting result because the State of Washington is a plaintiff in the N.D. Cal. case, which just denied a PI motion.

The complaint covers much of the same ground as in the other complaints, but notably singles out the waste treatment exclusion and challenges the repeal rule. (Remember, after the SCOTUS ruling on the 2015 rule challenge, complaints are now filed under the APA in District Court, and not in the Circuit Courts under CWA § 509(b). Section 509(b) has a 120-day deadline for filing suite. The APA’s limit is six years.) The waste treatment exclusion is an interesting issue with a sordid past. Part of the old rule was “suspended” many years ago without public notice and comment, and surprisingly, no one sued EPA over it. When I was at EPA, we all knew that provision was troublesome, but the agency never got around to fixing it. The new iteration of the exclusion is not clear, but appears to allow jurisdictional waters to be converted to non-waters. It will be interesting to see if plaintiffs file a motion for a PI.

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