• Mark Ryan

More Thoughts on Lucero

Since posting three days ago on the Ninth Circuit's Lucero case, I've spoken with several colleagues about it, and a lot of people are scratching their heads on this one. I've been reading CWA cases for more than 30 years, and I don't ever recall seeing the word "water" in 502(6) elevated to prima facie case importance. And the dissent is even whackier than the majority, suggesting that heating water in a tea kettle could violate the CWA, and the knowledge requirement should be extended to WOTUS determinations. That would likely put an end to criminal convictions under the CWA if the defendant had to know something met the definition of intermittent stream or adjacent wetland under the 2020 rule (or any version of WOTUS, for that matter). It'll be interesting to see if DOJ seeks rehearing en banc on this one. It's also interesting to note that two of the three judges on this panel were Trump appointees, which may explain the sudden shift in the law and more surprises to come as those 200 new judges settle in.

If you have some thoughts on Lucero, please comment on this blogpost. Or send me an email. I'd be interested to hear what others think.

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