• 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.

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