• Mark Ryan

WOTUS Litigation Heats Up

Two new WOTUS cases were filed last week. As expected, a group of states filed a complaint on Friday in the Northern District Court of California, challenging the WOTUS replacement rule, which was promulgated on April 21. Also, several enviro groups filed a complaint in the District of Massachusetts. This brings to at least six the number of lawsuits filed against the new rule.

The states' 29-page complaint highlights the obvious problems with the rule: it relies on the Scalia test, which all of the lower courts have rejected, and it fails to account for the scientific record that was assembled as part of the 2015 rule. The complaint also argues that the about-face on the WOTUS was not adequately explained in the record, and, interestingly, that the term "typical year" is confusing. The harm section at pages 18-21 of the complaint is interesting, and worth a read. Here's a link to the complaint.

The states that joined in on the complaint are: California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and Wisconsin. It will be interesting to see if any right-leaning states filed countersuits, like the PLF, arguing that the rule is not deferential enough to state's rights.

The 49-page Conservation Law Foundation complaint filed in Massachusetts, which several other enviro groups joined, makes now familiar arguments: (1) the rule doesn't consider its effects on the nation's water quality, (2) the agencies didn't rely on the science, (3) the new rule draws arbitrary lines between what is covered and what isn't, (4) the rule does not clarify jurisdiction as promised by the agencies, and (5) the rule is improperly based on the Scalia test.

Cases are now pending in Oregon, New Mexico, California, New York, Massachusetts and South Carolina. I expect more complaints will be filed. Industry and ag groups will likely intervene or file their own challenges. This is turning into a litigation monster, and we'll likely see inconsistent results from the courts, resulting in a hodgepodge of states that are covered by the new rule or not.

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