By Kerry Shapiro
On August 30, 2021, the U.S. District Court for the District of Arizona issued an order in Pasqua Yaqui Tribe, et al. v. U.S. EPA, et al., vacating the Navigable Waters Protection Rule (“NWPR”) and remanding the rule back to the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) for further review. The NWPR was enacted during the Trump administration and represents the EPA’s latest attempt to define the term “waters of the United States” (“WOTUS”). The NWPR represented a categorical approach to Clean Water Act (“CWA”) jurisdiction (i.e. certain water features were categorically excluded from jurisdiction under the CWA, including ephemeral streams), and it significantly narrowed the scope of such jurisdiction. Following the court’s ruling, EPA announced the Agencies would halt implementation of the NWPR and instead interpret WOTUS consistent with the broader jurisdictional scope of the pre-2015 regulatory regime until further notice. The National Stone, Sand, and Gravel Association (“NSSGA”), among several business interests, intervened into the case, arguing that a return to the pre-2015 regulatory regime would increase regulatory uncertainty, including, as discussed below, a likely increase in 404 permitting.
In this case, the plaintiffs alleged that the NWPR exceeds the EPA’s statutory authority and is contrary to the CWA’s text and objectives, which require broad protection of all of the U.S.’s waters, because the NWPR excludes certain waters from the protections required by the CWA. The NWPR can be viewed here. The plaintiffs, several federally recognized Native American tribes, also alleged that the EPA failed: (1) to explain its decision to reverse prior regulations; and (2) to consider important aspects of that prior decision, including the effects on water quality and aquatic ecosystems, the ecological importance of protecting the excluded waters, and the effects of the reversal of prior regulations on the CWA. Plaintiffs moved for summary judgment in the case, and in response the Agencies filed a motion asking for voluntary remand of the NWPR without vacating it. This would have allowed the Agencies under the Biden administration to continue to implement the NWPR as the Agencies simultaneously worked to draft a replacement. Plaintiffs agreed that the NWPR should be remanded, but also argued for vacatur and implementation of the pre-2015 regulatory regime, asserting that intermittent and ephemeral streams in Arizona would otherwise be left unprotected. Continue reading