On August 30, 2021, a judge from the U.S. District Court for the District of Arizona remanded and vacated the Trump Administration’s Navigable Waters Protection Rule (NWPR), the rule that replaced the 2015 Clean Water Rule, and that significantly reduced the jurisdiction of the Clean Water Act by redefining Waters of the United States. The judge’s order in Pasqua Yaqui Tribe v EPA is interpreted to be national in scope, although clarification will be sought by the Department of Justice.
The judge’s decision was based on the substantial concerns (agreed to by the Agency Defendants) that the NWPR did not adequately consider the statutory objective of the Clean Water Act (CWA) and the effect of the NWPR on the integrity of the nation’s waters. The judge determined that remanding the case to the Agencies without vacatur would risk serious environmental harm. Further, the Agencies are likely to alter the NWPR definition of Waters of the United States.
The Agencies have documented significant loss of protection for the nation’s wetlands and waters under the NWPR compared to prior jurisdiction. Hundreds of projects that would have required Section 404 permits under the previous CWA regulatory framework were found to be non-jurisdictional during the time that the NWPR has been in effect (since June 22, 2020), and of the U.S. Army Corps of Engineers’ 40,211 jurisdictional determinations made between June 22, 2020 and April 15, 2021, approximately 76% were not jurisdictional. The reduction of jurisdiction has been particularly significant in arid states where many of the streams and wetlands are ephemeral.