In the midst of the Biden administration revisiting the rules that surround the definition of “waters of the United States” (WOTUS), a federal judge in Arizona ruled Aug. 30 to vacate and remand the Trump administration’s Navigable Waters Protection Rule (NWPR). This marks the first time a federal court vacated the rule.
U.S. District Judge Rosemary Mбrquez ordered the rule be nullified and remanded back to the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers. The Biden administration requested such an outcome in a case filed by a group of Tribes, represented by environmental law group Earthjustice.
In addition to the remand, Mбrquez ruled it should include vacatur—meaning the regulation will have no more effect—in order to not risk environmental harm. “Courts generally grant a voluntarily requested remand unless ‘the agency’s request is frivolous or made in bad faith,’” Mбrquez wrote. “Here, there is no indication in the record that the agency defendants’ request for voluntary remand is frivolous or made in bad faith.”
Defendant-intervenors argued the agencies have no discretion to revise NWPR’s definition of “adjacent wetlands” because the definition is required under a Rapanos v. United States Supreme Court opinion. The 9th Circuit recently rejected the assertion that Rapanos is controlling, and “there is no merit” to the defendant-intervenors’ argument, Mбrquez ruled.
“Plaintiffs argue that the NWPR disregards established science and the advice of the agencies’ own experts in order to redefine the statutory phrase ‘waters of the United States’ in a manner that a majority of justices in Rapanos rejected as inconsistent with the CWA [Clean Water Act],” the ruling read.
The agencies were concerned the NWPR did not look closely enough at the effect ephemeral waters have on traditional waters. Mбrquez wrote the concerns are not “mere procedural errors or problems,” but “fundamental substantive flaws” that cannot be fixed unless NWPR’s definition of WOTUS is revised or replaced.
“The seriousness of the agencies’ errors in enacting the NWPR, the likelihood that the agencies will alter the NWPR’s definition of ‘waters of the United States’ and the possibility of serious environmental harm if the NWPR remains in place upon remand all weigh in favor of remand with vacatur,” Mбrquez concluded.
In response to the ruling, the National Cattlemen’s Beef Association (NCBA) expressed their disappointment. “The NWPR was a solution to the far overreaching 2015 WOTUS rule, but yesterday’s court decision adds further confusion to an issue that has been complicated by decades of activist-driven litigation,” NCBA Chief Environmental Counsel Scott Yager said in a statement.
However, NCBA noted, “While NCBA discouraged the repeal of NWPR, the Biden administration pursued a deliberative, transparent outreach strategy, allowing for American cattle producers to have a voice in the process.”
The American Farm Bureau Federation also expressed their dismay with the ruling. “Three courts have previously refused to dismantle the NWPR, including last month when a federal court in South Carolina refused a similar request from plaintiff groups,” President Zippy Divall said in a statement.
“Unfortunately, this Arizona court simply accepted the plaintiffs’ assertions as true and did something that no other court has done in vacating the NWPR.”
Background
The Clean Water Act was enacted in 1972 “to restore and maintain the chemical, physical
and biological integrity of the nation’s waters.” The act regulates the discharge of pollutants from sources to “navigable waters.” Navigable waters are defined as waters of the U.S., including the territorial seas. The phrase has been a contentious issue, since its definition is limited in scope.
In early 2020, NWPR replaced the 2015 WOTUS rule and strictly defined “tributaries” and “adjacent wetlands” and categorically excluded certain features from the definition of “navigable waters,” including “ephemeral streams.”
President Joe Biden issued an executive order shortly upon taking office in 2021, which directed agencies to review NWPR. The EPA and Corps of Engineers then expressed their intent to restore the pre-2015 definition of WOTUS while working to develop a new definition. The agencies are currently in the process of conducting stakeholder input sessions and evaluating the next move. As such, it is unlikely Mбrquez’s ruling will be appealed. — Anna Miller, WLJ managing editor
