• Mark Ryan

The WOTUS Rule Has Finally Published

The final WOTUS replacement rule that EPA and the Corps put on their websites in January has finally hit the Federal Register. See my January 23, 25, and Feb. 7 blogposts for my analysis of the rule. Here's a link to the Federal Register notice for the final rule:

The rule becomes effective June 22, 2020, unless it's stayed by the courts.

What happens now? Lots of litigation. Some of the states, enviro groups, possibly tribes and the PLF will likely sue. A group of states is already suing in the SDNY over the repeal rule. The litigation will take place in district courts around the country. Expect lots of forum shopping.

As I have written in the past, I don't see how this rule, which is largely Scalia-based, can survive challenges given that all of the Circuits Courts that have interpreted Rapanos have uniformly rejected the Scalia test as the sole basis of asserting jurisdiction. The district courts will likely follow suit. Given the Supreme Court's recent negative ruling in Department of Homeland Security v. New York on the imposition of nationwide stays by District Courts, I don't expect to see any here. That will leave us with another patchwork of states covered by the new rule or not. It will be fascinating to see who sues and where.

The likelihood of this rule ever becoming the law of the land, I think, comes down to the election. None of this litigation will play itself out before November. If Trump wins a second term, he'll litigate the rule up to the Supreme Court, where he now likely has the five votes he needs to adopt the Scalia test and therefore affirm this new rule. If Biden takes the Whitehouse, we can expect the new leadership at the EPA and the Corps to withdraw the rule, which will lead to lawsuits by industry and the ag lobbies to challenge the withdrawal. Then there will be a new round of litigation over the replacement rule, which would likely mimic the 2015 rule. In that event, the litigation over this rule will be with us for many years. Only Congress can truly fix this.

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