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Colorado Joins the WOTUS Litigation Free-For-All

The State of Colorado filed another challenge to the 2020 WOTUS rule in District of Colorado on May 22. The 49-page complaint makes several APA arguments against the new rule, many of which mimic those made in some of the other complaints recently filed. The State will likely be filing a motion to enjoy implementation of the new rule. See Complaint at 45. Here's a link to the complaint. https://coag.gov/app/uploads/2020/05/WOTUS-Complaint-5-22-20.pdf


The complaint also alleges that the Corps failed to comply with NEPA in promulgating the new rule. Id. at 31. The State alleges that section 511(c) of the Act exempts EPA from NEPA review, but not the Corps. Interesting argument. The Corps performed a NEPA analysis of the 2015 rule.


It is interesting that Colorado decided to go this alone. A group of other states recently filed in the N.D. of California (see my May 4 Blogpost for more on that case). The states' case in California includes California and New Mexico, which share many of the arid west issues Colorado faces. Perhaps because 68% of Colorado's waters are ephemeral or intermittent, see Complaint at 33, the State didn't want to get mixed up with arguments made by wetter eastern states.


Arkansas v. Oklahoma is going to play a role in this litigation. The complaint alleges that 19 downstream states receive water that flows out of Colorado. Id. plaintiffs in some of the other cases have made similar allegations.


This brings to at least six the number of cases filed challenging the WOTUS rule. I have heard that at least one other large environmental group intends to file. The rule goes final on June 22, so I suspect we'll see more between now and then. If you're aware of other cases, or motions to intervene in any of the existing cases, please drop me a line at mr@ryankuehler.com. You won't be quoted unless you want to go on the record.


Colorado v. EPA D. Co.

California, et al.* N.D. Cal.

Oregon Cattlemen's Assoc. D. Or.

New Mexico Cattlemen's Assoc. D.N.M.

SELC D.S.C.

Conserv. Law Foundation D. Mass.


These courts sit in the 8th, 9th (3), 4th and 1st, respectively.


*Plaintiffs are California, New York, Connecticut, Illinois, Maine, Maryland, Michigan, New Jersey, N. Carolina, Oregon, Rhode Island, Vermont, Wisconsin, Massachusetts, Virginia, the Dist. of Columbia and the City of New York.

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