News flash: While the much-beleaguered Waters of the United States (WOTUS) Rule has been ricocheting around the federal courts, the rest of the world has not stopped turning. The federal government, land developers, and advocacy groups have been hot at it in federal courts battling over the limits of federal “waters of the United States” jurisdiction, and courts have had to hear the evidence and decide. Courts have done so largely without paying much attention to the WOTUS Rule, and have developed evidentiary principles that may make the WOTUS Rule, if it ever becomes a final rule free of litigation challenges, a bit of a non-event.
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