What’s next for WOTUS after judge jettisons Trump rule

By Hannah Northey, Pamela King | 08/31/2021 01:26 PM EST

A federal court's decision yesterday to scrap the Trump administration's Navigable Waters Protection Rule adds a new twist in the decadeslong quest to define "waters of the United States." pxhere

The Biden administration may get some breathing room after a federal court ruling in Arizona yesterday effectively wiped out a controversial Trump-era Clean Water Act rule that pulled back federal protection for streams and wetlands across the country.

Judge Rosemary Márquez of the U.S. District Court for the District of Arizona ruled the Trump administration’s Navigable Waters Protection Rule (NWPR) was too flawed to keep in place (Greenwire, Aug. 30).

That decision effectively scraps the Trump-era rule across the nation, rolling back one of the prior administration’s biggest and most controversial regulatory wins for developers and farmers. And it gives EPA a bit of a reprieve as the agency moves forward with crafting a replacement for the NWPR.

EPA earlier this year announced it would pursue a double-pronged approach of conducting rulemakings to both remove the Trump rule and craft a replacement.

“The immediate effect is a nationwide vacature of the 2020 rule,” Mark Ryan, a former EPA Office of Water attorney, said in an email. “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).”

The ruling means EPA and the Army Corps of Engineers revert to implementing a 1986 regulation as interpreted by the 2008 guidance written by the George W. Bush administration to determine what qualifies for federal protection as “waters of the United States” under the Clean Water Act, according to legal experts.

The Trump administration’s NWPR significantly narrowed the reach of the Clean Water Act, pulling back what wetlands and streams were jurisdictional by about 51% and 18%, respectively (Greenwire, Jan. 23, 2020).

EPA can now channel its resources toward recrafting the definition of what constitutes a “water of the U.S.,” instead of working to repeal the prior regulation, said Ryan.

“I think this relieves a bit of the pressure,” he said. “Now they have one, not two big rulemakings to deal with.”

EPA spokesperson Timothy Carroll said the agency is reviewing the ruling and had no further comment on the decision. The Army Corps referred questions about the court decision to EPA.

 

A return to the Obama rule?

Márquez’s order left open the possibility that the Obama administration’s 2015 Clean Water Rule could eventually be revived.

While her decision focused on striking down the NWPR, Marquez asked the parties in the case to submit additional briefing on whether the court should also toss out the Trump administration’s 2019 Repeal Rule, which scrapped the Obama rule and made way for the NWPR in 2020.

The judge, an Obama appointee, also rebuked the Trump administration for ignoring science that underpinned the Obama rule, such as the 2015 Connectivity report on the links between small water bodies and larger resources.

In announcing the NWPR last year, the Trump administration said it was focusing on legal interpretations of the Clean Water Act, including Justice Antonin Scalia’s narrow view of the statute in the famously muddled 4-1-4 ruling in the 2006 Supreme Court case Rapanos v. United States.

Federal courts have generally favored Justice Anthony Kennedy’s competing “significant nexus” test that takes a broader view of the Clean Water Act’s scope.

Márquez noted that under the NWPR, the Army Corps had assessed more than 40,000 water resources and found that 76% were not subject to federal protections.

In New Mexico and Arizona, the agency found that nearly every one of the 1,500 streams it assessed were nonjurisdictional, marking a “significant shift” from how waterways were treated under the Obama rule and the 1986 regulations, she said.

The concerns that a group of federally recognized tribes raised against the NWPR in the Arizona district court lawsuit were not “mere procedural errors or problems that could be remedied through further explanation,” Márquez wrote.

They were instead “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States,’” she continued.

The Obama rule also faced its own stumbles in court before the Trump administration replaced it with the NWPR.

Legal action on Clean Water Act issues is notoriously slow-paced, after the Supreme Court determined in the 2018 case National Association of Manufacturers v. Department of Defense that federal district courts should have the first say in legal disputes related to the statute.

Clean Air Act cases, by contrast, go straight to the U.S. Court of Appeals for the District of Columbia Circuit.

The Biden team has said it is working to craft a WOTUS definition that can endure multiple legal challenges and administration changes.

 

Scope of the ruling

Larry Liebesman, a former Department of Justice trial attorney and senior adviser at Dawson & Associates, a consulting firm that specializes in permitting, said the court’s ruling can be read as a nationwide freeze on Trump’s Clean Water Act rule.

But he also said that could change going forward given myriad pressures, from the farming and business community to environmental interests.

The business community, for example, could pressure the Biden administration and Department of Justice to apply the ruling only in New Mexico, where the tribal challengers are located, and may argue it’s too disruptive to apply pre-2015 regulations across the nation, said Liebesman.

Businesses could make their case in the name of infrastructure and argue that permitting could be slowed without the Trump-era rule in place, he added.

“In my view, that’s going to be an uphill argument,” he said.

On the flip side, Liebesman said he could also potentially see environmental groups pushing the Biden administration not to appeal the ruling or limit the pre-2015 guidance, an argument that would draw support from the state of New Mexico and Interior Secretary Deb Haaland, who’s been outspoken about the need to protect ephemeral waters.

“There will be pressures from different directions on what position the Biden administration might take in court in respect to this ruling,” said Liebesman.

Kevin Minoli, a partner at the law firm Alston & Bird, said the decision before the Biden administration is whether to treat the district court’s decision as vacating the rule nationwide or only within the district of Arizona.

The Obama administration, he said, fought the courts on nationwide injunctions against its own rule, which led to a messy regulatory patchwork in which the scope of the Clean Water Act varied from state to state.

When a federal district court in Colorado blocked the Trump rule, the injunction only applied in the Centennial State. It was later reversed by a federal appeals court.

“While the Administration may be comfortable with a nationwide vacatur of the Navigable Waters Protection Rule, the Department of Justice will be reluctant to concede that a single district court judge has the authority to change the rules across the entire country because of the implications that position would have on other cases where the government is defending the regulation being challenged,” Minoli wrote in an email.

Randy Serraglio, a Southwest conservation advocate at the Center for Biological Diversity, said lawmakers need to step in.

“This situation with the Clean Water Act is crying out for legislation to clarify the law,” he said. “The courts have signaled that. You have administrations that see this gray area and they veer too far in one direction and the courts slap it down. It really needs to be clarified by Congress. We need a stronger Clean Water Act that actually protects waters of the U.S.”

Reporter James Marshall contributed.