Court Vacates Final Rule That Set New Waters of the U.S. Definition
September 1, 2021
by Paul Ciampoli
APPA News Director
September 1, 2021
The U.S. District Court for the District of Arizona on Aug. 30 vacated a Trump Administration rule that set a new definition for “waters of the United States” (WOTUS).
At issue in the proceeding is a final rule — the Navigable Waters Protection Rule (NWPR) — announced last year by the Environmental Protection Agency (EPA) and the Army Corps of Engineers.
The NWPR addresses traditional navigable waters and territorial seas but narrowed the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that form only in response to rain, and most ditches.
The final rule called for four categories of waters are federally regulated: (1) The territorial seas and traditional navigable waters; (2) Perennial and intermittent tributaries to those waters, (3) Certain lakes, ponds, and impoundments, and (4) Wetlands adjacent to jurisdictional waters.
The final rule also detailed 12 categories of exclusions, features that are not WOTUS, such as features that only contain water in direct response to rainfall (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems.
The American Public Power Association generally supported the NWRP rule as it provided clarity and certainty over the scope of jurisdictional waters. A clear WOTUS definition is critically important as the electric utility industry transitions its generation fleet to low and non-emitting resources. The association believes that the NWPR provided clear descriptions of exclusions for many water features that traditionally have not been regulated such as waste treatment systems and ditches.
The rule was subsequently challenged in court by Earthjustice and the Pascua Yaqui Tribe, Fond du Lac Band of Lake Superior Chippewa, Tohono O’odham Nation, Menominee Indian Tribe of Wisconsin, Quinault Indian Nation, and Bad River Band of Lake Superior Chippewa.
In May 2021, these parties sought summary judgement in the proceeding.
In lieu of filing a response to the motion for summary judgment, the EPA and Corps of Engineers filed a motion for voluntary remand of the NWPR without “vacatur” (vacating the final rule). The plaintiffs in the case did not oppose remand of the NWPR but argued that remand should include vacatur.
Details On Court Decision
“The concerns identified by plaintiffs and the agency defendants are not mere procedural errors or problems that could be remedied through further explanation,” the court said in its ruling. “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 said. The order was written by U.S. District Judge Rosemary Marquez.
“Accordingly, this is not a case in which the agency could adopt the same rule on remand by offering ‘better reasoning or…complying with procedural rules,’” wrote Marquez.
Neither is this a case in which vacating the final rule could result in possible environmental harm, the judge went on to say. “To the contrary, remanding without vacatur would risk serious environmental harm,” she said.
Marquez noted that the two federal agencies have identified indicators of a substantial reduction in waters covered under the NWPR compared to previous rules and practices. The judge noted that between June 22, 2020 and April 15, 2021, the Corps made approved jurisdictional determinations under the NWPR of 40,211 aquatic resources or water features and found that approximately 76% were non-jurisdictional. The agencies have identified 333 projects that would have required Section 404 permitting under the Clean Water Act prior to the NWPR but no longer do, the court said.
Marquez said that the reduction in jurisdiction has been particularly significant in arid states. In New Mexico and Arizona, nearly every one of over 1,500 streams assessed under the NWPR were found to be non-jurisdictional, “a significant shift from the status of streams under both the Clean Water Rule and the pre-2015 regulatory regime,” she wrote.
“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,” the order said.
The motion for voluntary remand made by EPA and the Army Corps of Engineers was therefore granted to the extent it seeks voluntary remand of the NWPR. At the same time, Marquez said that the NWPR is vacated and remanded for reconsideration to the EPA and the Army Corps of Engineers.
The vacatur means the test to determine which waters are jurisdictional will revert pre-2015 WOTUS regulations. However, legal experts disagree on whether a district court can vacate a rule nationally, meaning the pre-2015 test might apply only on a narrower scale, such as on land controlled by the six plaintiff tribes.
Biden Administration Action
Prior to the court’s order, EPA Administrator Michael Regan in June announced that the EPA and the Army Corps of Engineers would formally revise the definition of WOTUS.
The 2020 NWPR was identified in President Biden’s Executive Order 13990, which directs federal agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions promulgated, issued, or adopted between January 20, 2017, and January 20, 2021.
Upon review of the NWPR, the two agencies determined that the rule is significantly reducing clean water protections based on a review of the 333 projects they said would have required § 404 permits before the NWPR, but no longer do because of the narrower scope of jurisdiction under the NWPR. However, industry stakeholders contend the Agencies have not disclose all the data necessary to review the list of projects. For those jurisdictional determinations (JDs) found online, there are no prior JDs, therefore how can the Agencies determine that certain water features would have required a permit but no longer do under the NWPR.
The Department of Justice on June 9 filed a motion requesting remand of the NWPR rule.
The action reflects the agencies’ intent to initiate a new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation and anticipates developing a new rule that defines WOTUS “and is informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule,” EPA noted in a news release.
Subsequently EPA issued a notice, announcing public meetings and a solicitation for pre-proposal feedback on a new WOTUS definition. APPA plans to submit comments September 3 articulating the key principals any new WOTUS definition should include considering the recent court decision.