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EARL e-news: Update 2 on WOTUS

Updates on Environmental, Administrative and Regulatory Law

September 9, 2015

The federal district judge in North Dakota who granted an injunction to thirteen states for changes to the scope of the jurisdiction of the Clean Water Act has refused to expand his injunction nationwide. EPA has stated that it will only respect the injunction in the thirteen states granted injunctive relief.

This means that unless another court grants a nationwide injunction the remaining thirty-seven states (including North and South Carolina) will be subject to newly promulgated EPA WOTUS rule. The practical effects will be a potentially differing review of jurisdictional wetland delineation, Section 404 permit application reviews and potential Corps enforcement action for sites which are now deemed to be jurisdictional wetlands.

Because of the multi-jurisdictional challenges to the WOTUS rule, the Sixth Circuit Court of Appeals will determine in October whether to consolidate all of the challenges and which court will control the litigation.