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WOTUS LITIGATION NEWS

The N.D. of California today denied the states' motion for a PI on the 2020 rule, knocking down just about every argument they made on the merits. The judge gave great Chevron deference to EPA and the Corps. Most importantly, he granted the agencies discretion to interpret Rapanos in a way that allowed them to adopt the Scalia standard, rather than Kennedy. Interestingly, he cites neither Healdsburg or Robertson, both 9th Cir. decisions adopting the Kennedy standard. It will be interesting to see if the plaintiffs do an emergency appeal. I missed this one; I hadn't expected the court to rule this way. It will be interesting to see if the judges in the other challenge cases pick up on it.


Meanwhile, WOTUS revisited the 6th Cir. with oral arguments yesterday in the appeal of the District Court's denial of an injunction in Ohio and Tennessee's challenge to the 2015 rule. Based on press reports, the court seemed skeptical of enjoining a rule that has been repealed and replaced by the 2020 rule. The court seemed ready to let the case sit for awhile pending resolution of the other legal challenges to the repeal rule and the 2020 rule.


With regard to the 2020 WOTUS rule, which goes into effect on Monday, I've been getting questions about what will change. Will water quality decline? Assuming the rule is not stayed, the most immediate impact, I think, will be to wetlands. Many wetlands are nonjurisdictional under the new rule, and subject to filling. The 2020 rule on intermittent streams is, however, so confusing, that it will be risky to take on any wetlands adjacent to those water bodies without a JD from the Corps. Other wetlands that do not abut or have a direct surface connection to an otherwise jurisdictional water body won't need a 404 permit to fill as of Monday. Since only Michigan and New Jersey have 404 programs, we may see a significant impact on wetlands in the short term as developers and farmers rush to fill wetlands before the rule is overturned. More prudent land owners will likely hold off until the issue sorts itself out in the courts.



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