On August 30, 2021, Federal Judge Rosemary Márquez of the United States District Court for the District of Arizona found “fundamental, substantive flaws” with the Trump Administration’s 2020 Waters of the US rule (termed “the Navigable Waters Protection Rule” or NWPR). Importantly, Judge Marquez held that these flaws “cannot be cured without replacing the [Trump Administration’s] definition of waters of the United States.”
Her decision found a “possibility of serious environmental harm” if the Trump rule remained in place, citing Corps and EPA data on the number of aquatic resources that are no longer protected under that Rule. For the New York Times coverage, click here. For Judge Marquez’s decision, click here.
Our colleague Larry Liebesman, who litigated WOTUS and related environmental rules as a US Justice Department attorney for more than 10 years, spoke with reporters today concerning the likely impact on Federal environmental permitting procedures at the Army Corps of Engineers and Environmental Protection Agency. What follows are some of Larry’s thoughts:
The Biden Administration sought remand without vacatur. Environmental groups opposed that, preferring to vacate the rule. The judge agreed with the plaintiffs, noting the Agencies’ concerns that the NWPR did not look closely enough at the effect “ephemeral waters have on traditionally navigable waters.”
The effect of this ruling is the equivalent to a nationwide injunction, although the words “nationwide injunction” are not in the Order. The Administration will have to decide whether to limit the scope of the ruling. If Judge Marquez does not clarify her order to limit it only to Arizona, the EPA & Army Corps of Engineers will not need to rescind the rule, which they would have to do if the Trump rule were in effect.
The court’s ruling takes us back to 2015, before the Obama Administration issued its Rule change. The ruling tells EPA & the Corps of Engineers that the 2008 Rapanos guidance procedures should remain in place while they conduct a rulemaking. That would again make the Rapanos “Significant Nexus” test applicable.
Environmentalists may pressure the Biden Administration not to appeal so as not to limit the effect. Interior Secretary Deb Haaland has been outspoken on the need to protect ephemeral waters impacting Tribal waters such as those located on the Plaintiffs lands. Environmentalists will likely argue that the 2008 guidance must be applied nationwide to prevent harm under the Trump rule until a new rule is issued. That could be a significant pressure point on the Biden Administration.
Any appeal would go to the Ninth Circuit that just recently reaffirmed its prior decision finding that the Justice Kennedy’s “Significant Nexus” opinion is the controlling test for Waters of the United States.
Business interests will likely push to limit this ruling only to the State of Arizona, arguing that a nationwide injunction is inappropriate and will cause severe harm to those who have been using the Trump Rule for the past year. It is unclear whether the Biden Administration will join this uphill argument.
A big question on the impact to infrastructure: Will this ruling make things more complicated to obtain Federal permits including permits for clean energy projects and so-called “shovel ready” projects? This issue may push the Biden Administration to want to limit it to Arizona
A key question for the Corps of Engineers involves what they do with guidance they have been working on to implement the Trump rule. Assuming that the vacatur remains nationally, the Corps and EPA will have to update guidance to the regulated community and public on how to determine limits of Clean Water jurisdiction until a new rule is in place.
For more of Larry’s analysis about the WOTUS rule, click here.
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