An Arizona federal court has vacated the Trump Administration’s Navigable Waters Protection Rule (NWPR). In the case of Pasqua Yaqui Tribe v. EPA, No. CV-20-00266 , the Court ruled that the Trump Administration’s regulatory effort to define the scope of the Clean Water Act (i.e. which rivers, streams and lakes are federally regulated) had “fundamental, substantive flaws” and, therefore, vacated the NWPR.
The Court’s ruling dealt a major blow to one of the Trump Administration’s signature efforts to reduce federal regulation. The Court’s action undid a regulatory effort that took nearly four years, from the signature of an Executive Order by President Trump, revocation of the Obama Waters of the United States (WOTUS) Rule and promulgation of the NWPR. After the ruling, the EPA and Army Corps quickly announced that they would no longer be implementing the NWPR nationwide.
The Clean Water Act regulates discharges of pollutants from point sources to “navigable water,” with “navigable waters” defined as “water of the United States, including the territorial seas.” 33 U.S.C. Sections 1311(a), 1367(7) and 1362(12). The Clean Water Act does not further define the phrase “waters of the United States.” Since the 2006 U.S. Supreme Court’s ruling in Rapanos, EPA has struggled to develop a rule to further define which rivers, streams and lakes are regulated by the federal government under the Clean Water Act.
After the Court’s action, the Army Corps of Engineers and U.S. EPA will rely upon the regulatory definition of “waters of the United States” that was in place prior to 2015. Including the written guidance document prepared by the Army Corps of Engineers and U.S. EPA following the Rapanos ruling. Many complained about the written guidance stating it was vague and applied inconsistently by the various Army Corps District Offices.
What happens next?
The District Court’s decision will likely be appealed. The appeal time period runs through the end of October 2021. Meanwhile, the Biden Administration had already announced it planning to proceed with yet another rulemaking to define the extent of federal jurisdiction over “waters of the United States.” Any such rulemaking is certainly going to be challenged as well.
The multi-decade fight of the reach of the Clean Water Act stands as perhaps the best example of the impact of having gridlock in Congress and relying on the Executive Branch to determine critical environmental issues. After four different U.S. Supreme Court decisions, nearly four decades of litigation, two failed regulatory rulemaking efforts, the reach of the Clean Water Act is still left unresolved. It is like deja vu all over again…