I've heard rumors from several sources that the WOTUS replacement rule will be released tomorrow. Stay tuned.
Meanwhile, DOJ has filed a lengthy motion to dismiss the environmental groups' challenge to the repeal rule that is pending in the District of South Carolina. The main argument is that the plaintiffs lack standing because plaintiffs cannot show injury in fact or redressability. Alleging use of waters that were protected by the 2015 rule, but will no longer be protected after repeal, DOJ argues, is not enough. DOJ further argues that because the 2015 rule was invalidated in some of the state where plaintiffs reside, a favorable ruling in the present case would not result in re-instatement of the 2015 rule. Finally, DOJ argues the case is not ripe, and the court should wait to adjudicate it because the replacement rule is due out soon.
It's an interesting case to litigate because the regulatory oddness of it. The enviros are challenging a repeal of a rule, and that rule has been stayed in about half of the country. And the administration is about to issue a replacement rule. And that replacement rule will be challenged the minute it hits the streets. Endless litigation.
I unfortunately can no longer post documents to this Blog. Wix.com is considering a possible fix to its blogpost tool. In the meantime, you can obtain the pleading from PACER (the case no. is 2:19-cv-03006-DCN) or email me at email@example.com and I'll send you a copy.