• Mark Ryan

EPA Appeals the Colorado WOTUS Stay

EPA filed a notice of appeal with the 10th Cir. yesterday, appealing the Dist. of Colorado decision staying the 2020 WOTUS rule in Colorado. (See my June 22 Blogpost for more on that decision.) The judge ruled that Rapanos foreclosed the new rule based on the plurality opinion in Rapanos. EPA argues that it is free to reinterpret the CWA's definition of WOTUS and nothing in Rapanos says they can't. I think five justices of the Supreme Court clearly rejected Scalia's RPW test in Rapanos, and that's the law until SCOTUS revisits the issue. But the 10th Cir. may disagree with me. I suspect the plaintiffs in the N.D. Cal. case will appeal to the 9th Cir. Stay tuned.

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