District Court Vacates Controversial Trump-Era Clean Water Act Rule
On August 30, 2021, Arizona Federal District Court Judge Rosemary Marquez issued an order vacating a controversial Trump-era rule defining the jurisdictional scope of the federal Clean Water Act. The order granted the United States’ motion for voluntary remand of the Trump Administration’s Navigable Waters Protection Rule (NWPR), and also vacated the rule as requested by the plaintiffs in the case. The effect of the ruling is to restore the prior, 2015 Clean Water rule promulgated during the Obama Administration until the United States Environmental Protection Agency and the United States Army Corps of Engineers complete an already planned re-write of the rule.
The ruling was issued in Pasqua Yaqui Tribe, et al. v. United States Environmental Protection Agency, No. 4:20-cv-00266-RM (D. Ariz. Aug. 30, 2021). At issue in the case was a challenge brought by the Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O’Odham Nation and Bad River Band of Lake Superior Chippewa, who opposed two final rules of the United States EPA and the United States Army Corps of Engineers re-defining “Waters of the United States” under the Clean Water Act, including the NWPR.
In response to the plaintiffs’ motion for summary judgment, the defendants filed a motion for voluntary remand of the NWPR. The plaintiffs did not oppose the motion, but argued that the existing rule should also be vacated, which would effectively reinstate the 2015 Clean Water rule. Addressing the criteria for vacatur, the court found that the NWPR disregarded established science and the input of the agencies’ own experts, neglected the Clean Water Act’s statutory objectives and the potential detrimental effect of the rule on the integrity of the nation’s waters. The court noted “The concerns identified by Plaintiffs and the Agency Defendants are not mere procedural errors or problems that could be remedied through further explanation . . . Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of “waters of the United States.”
The court also found that environmental harm was unlikely to result from the vacatur, explaining that “to the contrary, remanding without vacatur would risk serious environmental harm,” based on the agencies’ own finding that the NWPR had resulted in a substantial reduction in waters covered by the Clean Water Act in comparison to prior interpretations of “waters of the United States.”
In a similar case pending in the District of Massachusetts and presenting the same issues, Conservation Law Foundation v. United States Environmental Protection Agency, No. 1:20-CV-10820-DPW, District Judge Douglas P. Woodlock determined that, in light of the ruling in the Arizona District Court, the Massachusetts case should be remanded and dismissed.
In response to these rulings, EPA and the Corps have ceased implementation of the NWPR rule and are interpreting their CWA jurisdiction consistent with 2015 guidance. The agencies will continue their work on a new jurisdictional rule in accordance with a rulemaking announcement promulgated on June 9th of this year. More information can be found at https://www.epa.gov/wotus/final-rule-navigable-waters-protection-rule.