Back in 2020, the Navigable Waters Protection Rule (NWPR) promulgated by the Trump administration significantly reduced the coverage of the water bodies in the United States. For many environmental organizations, agricultural and specialty crop stakeholders, this decision was inadequate, and Trump found himself the target of criticism. In contrast, developers and industry stakeholders welcomed this decision with open arms.
Nevertheless, as the political set is changing, the decisions issued by the Administration undergo changes as well. Quickly after taking the service, President Biden took steps toward repealing the Trump-rule. After reviewing the actions taken by Trump Administration, the key term in the Clean Water Act (CWA) is changing for another time. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on June 9, 2021, made a joint announcement that they intend to examine and make alterations to the WOTUS rule. Biden Administration explained that these alternations are driven by the inconsistency and certain obstacles to the new scientific and environmental policy aspirations. Additionally, Corps and EPA had sizeable concerns about the NWPR and established an unavoidable need for changes. They intended to replace the NWPR through the rulemaking process.
Almost three months later, On August 30, 2021, the U.S. District Court for the District of Arizona entered an order in Pasqua Yaqui Tribe v. EPA, so now things have moved in the planned direction, and the Biden administration can take a short break. The federal court ruling made a decision to put an end to the Trump-era Clean Water Act rule. It is not specified whether the Arizona district court’s order would apply locally or nationwide.
As Judge Rosemary Márquez of the U.S. District Court for the District of Arizona ruled, the decision to withdraw the federal protection for streams and wetlands across the country was defective and too flawed to keep in place. The decision made by the federal court effectively puts an end to the Trump era and is a fundamental change that affects the entire nation. Consequently, the Navigable Waters Protection Rule is not currently in effect.
While the Navigable Waters Protection Rule is one of the most controversial decisions of the previous Administration, according to many, the new regulatory go in favor of both developers and farmers. At the same time, the EPA is spared from punishment by ruling out the Trump-rule, as the agency is preparing a replacement for the NWPR.
In an email, the former EPA Office of Water attorney, Mark Ryan, said that: “The immediate effect is a nationwide vacature of the 2020 rule. There will be an appeal. Assuming the judge’s order is not stayed on appeal, then EPA will not have to go to the trouble of repealing the 2020 rule, and can move straight to drafting the new rule (which is almost certainly underway already).”
When it comes to the ruling and determining which “waters of the United States” are qualified to undergo federal protection under the Clean Water Act, the EPA and the Army Corps of Engineers consider implementing the 1986 regulation, which George W. Bush interpreted in the Agencies’ 2008 guidance. Legal experts explain that there is quite a big difference between restoring the Clean Water Rule and reverting to the pre-2015 status quo.
This change makes some space and relieves EPA of unnecessary obligations. Therefore, instead of revoking the previous regulation, the EPA can focus its efforts and resources to anew the definition of “water of the U.S..” Ryan stated: “I think this relieves a bit of the pressure. Now they have one, not two big rulemakings to deal with.”
The most recent update about the EPA’s decision is that the agency currently discusses and evaluates the ruling. Timothy Carroll, the EPA spokesperson, stated that there aren’t any further comments on the final decision. All things considered, the recent changes leave many open questions. The one most commonly asked is whether there will be a return to the 2015 Obama rule?! Do the industry stakeholders intend to appeal the vacatur order to support the NWPR? Will the Ninth Circuit limit the extent of the vacatur to Arizona? How do these decisions impact the current regulatory landscape?