On August 30, 2021, the U.S. District Court for the District of Arizona issued an Order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. Following the Court’s Order, U.S. EPA and the Army Corps of Engineers issued a joint statement on U.S. EPA’s website indicating the that Agencies have halted implementation of the Navigable Waters Protection Rule and are reverting back to the pre-2015 regulatory regime for interpreting the meaning of “waters of the United States” (WOTUS) subject to federal jurisdiction under the Clean Water Act. See U.S. EPA-Army Corps joint statement here.
We have learned from Ohio EPA (through its conversations with Corps representatives) that any Jurisdictional Determination, based on the 2020 Navigable Waters Protection Rule, that was issued by the Army Corps prior to September 3, 2021 will not be revisited in light of the Agencies’ recent decision to revert back to the pre-2015 WOTUS regime. However, any Jurisdictional Determination that was made based on the 2020 Navigable Waters Protection Rule and issued on or after September 3, 2021 will be re-evaluated based on the pre-2015 WOTUS regime; going forward, any Jurisdictional Determinations yet to be issued will also be based on the pre-2015 WOTUS regime.