Muddy Monday (AKA Wetland Wednesday)

December 30, 2019

Last Monday, the NEW Waters of the US (WOTUS) rules went into effect. Fourteen State’s Attorney Generals have field lawsuits just ahead of the effective date. The basis of the challenges is that the new regulation reduces Federal wetland protections.

One big difference with these lawsuits is that they all have to start in District Court. This is a result of a recent Supreme Court Ruling that requires Waters of the US challenges to start in District Court rather than Circuit Court which had been a strategy in the past. This somewhat alleviates the immediate Nationwide implications of a Circuit Court ruling. A successful challenge to the WOTUS would be limited to the District Courts jurisdictional area.

Right on the heels of the new WOTUS Part 1 rules is the Part 2 replacement rules that were published in draft form this past summer. The Trump Administration has announced plans for Final Part 2 rule to be published in a matter of weeks from now.