District Court Vacates Navigable Waters Protection Rule

Troutman Pepper
Contact

Troutman Pepper

A recent decision by the U.S. District Court for the District of Arizona vacated and remanded the 2020 Navigable Waters Protection Rule (NWPR) issued by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (together, “Agencies”) that clarified the scope of federal jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Before the promulgation of the NWPR, there had been several rulemakings and much litigation on this complicated issue, causing nationwide confusion on the application of a uniform standard. In 2015, the Obama administration promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”). The NWPR sought to provide certainty as to which waterbodies meet the features of WOTUS by creating clear categories of jurisdictional waterbodies.

In Pasqua Yaqui Tribe v. EPA, Case No. 4:20-cv-00266, in response to a challenge to the NWPR, the Agencies requested that the court voluntarily remand the rule for reconsideration of the definition of WOTUS. In addition to remanding the rule consistent with the Agencies’ request, the court found that the WOTUS definition had “fundamental, substantive flaws” regarding its scientific foundation and even conflicted with government reports. According to the court, such an error could not “be cured without revising or replacing the NWPR’s definition.”

It is not clear if the district court’s ruling is intended to apply nationwide, which re-introduces the considerable uncertainty that had faced the regulated community before the NWPR was finalized as to which prior interpretation of WOTUS applies. The court has requested additional briefing on the Repeal Rule, and a ruling on this issue could provide some clarity on how to interpret WOTUS. Before the court’s decision in Pasqua Yaqui Tribe, the Agencies had already announced their intention to revise the NWPR’s definition of WOTUS and revert to a pre-2015 version of the rule.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Troutman Pepper | Attorney Advertising

Written by:

Troutman Pepper
Contact
more
less

Troutman Pepper on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.