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Assessing the impact of Navigable Waters Protection Rule Vacatur

On January 5, 2022, the U.S. Army Corps of Engineers issued a “Navigable Waters Protection Rule Vacatur” (NWPR) press release stating in part:

The Environmental Protection Agency and U.S. Army Corps of Engineers (“the agencies”) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule (“NWPR”) nationwide and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies are working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources. The Corps will not reopen an Approved Jurisdictional Determination (AJD) in effect prior to the Court’s decision and not associated with a permit action.

E&E News recently reached out to our colleague Larry Liebesman to discuss the implications of the Corps’ announcement. Larry has been involved with federal litigation on this issue since he was a Justice Department litigator. Larry also blogged about the District Court’s decision last September (here).

What follows is a summary of Larry’s comments to E&E:

The Corps January 5 announcement certainly puts into peril Approved Jurisdictional Determinations (AJDs) under the 2020 NWPR. Real estate developers, home builders, miners and others typically obtain AJDs under the NWPR for long-term planning before seeking a permit. For example, aggregate mining companies often plan to excavate in phases over several years so an AJD provides regulatory certainty for the five-year period of the AJD.

Also, because the NWPR excluded ephemeral and isolated waters and wetlands, applicants would be relieved of the added time, potential delays and expense of the permitting process, including the Endangered Species Act (ESA) and Section 10 compliance, for proposed activities in those areas.

Under this new policy, such companies could not rely on an AJD under the NWPR even if it was still within the five-year period for AJDs when seeking a permit from the Corps. Companies now have to seek a new AJD when applying for a permit and this could trigger wider jurisdiction under the pre-2015 regulatory regime, which regulates ephemerals and similar waters under the Significant Nexus test of the Supreme Court’s Rapanos decision

The Corps’ likely rationale is that because the NWPR was vacated by the Arizona federal court, the Corps cannot legally grandfather an AJD under the NWPR. In my opinion, this is a legally questionable approach and is contrary to historic Corps policy. Previously, the Corps had honored AJDs prior to the 2015 and 2020 WOTUS rules irrespective of whether those rules changed the reach of regulated waters under the prior rules.

The Corps cites RGL 05-02 and the vacatur decision as “new Information” in stating that its actions are governed by the WOTUS definition in effect at the time. That position would essentially penalize a landowner in making planning decisions in good faith reliance that the AJD would remain valid for the full 5 years. Further RGL 05-02 just cites “new information” as justifying revision which arguably provides discretion as to whether any “new information” warrants invalidating a prior AJD.


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