• Mark Ryan

WOTUS Litigation Update

The PLF filed a motion for a preliminary injunction on May 26 in its New Mexico case to enjoin two words in the 2020 rule. That's right. Two words. The case number is 1:19-cv-00988-JRH-SCY. See my April 27, 2020 Blogpost for more on the PLF complaints.

PLC argues for the enjoining of the EPA and the Corps "from enforcing the two words 'or intermittent' in 33 C.F.R. § 328.3(c)(12), and subsections 328.3(c)(1)(ii)-(iv), in the Navigable Waters Protection Rule published by EPA and the Army at 85 Fed. Reg. 22,250, 22,338-39 (April, 2020)." Nobody will accuse these plaintiffs of being over broad.

Their argument is that intermittent and non-navigable wetlands that don't abut navigable rivers and lakes are not "navigable waters" under the CWA. Given that SCOTUS in Riverside Bayview didn't so limit the interpretation of navigable waters, PLF is clearly aiming to reshape the law by getting in front of the new 5 conservative justice majority in the Supreme Court. They now argue that Kavanaugh is the 5th vote supporting the plurality opinion in Rapanos. They may be right if their case ever gets to SCOTUS, but in the meantime, I think they have their cart before the horse with that argument.

If you would like to receive email notifications of new blogposts, go to the signup button above, leave your email, and you'll be alerted to updates.


Recent Posts

See All

A Slew of New CWA Cases

As I mentioned in my October 3 blogpost, the courts have been on a tear. Since October 3, I've blogged about 15 new cases, and today I add seven more to that number (plus a summary of the SF Baykeeper

EPA Wins an Iowa CAFO Case

An EPA ALJ today ruled in EPA's favor in a CAFO enforcement action in Armstrong, Iowa. A copy of the 108-page decision is attached below. The case was filed in 2016, and went to hearing in December 20

© 2016 by Ryan & Kuehler PLLC.

  • Facebook Basic Black
  • LinkedIn Basic Black
  • Twitter Basic Black