The rule reined in the Obama
administration’s 2015 Waters of the U.S. rule, which greatly
expanded federal jurisdiction under the Clean Water Act.
The Environmental Protection Agency
and Army Corps of Engineers withdrew the 2015 WOTUS rule in
2019 and reinstated the pre-2015 regulations. In 2020, the
agencies redefined the term “navigable waters” with the
Navigable Waters Protection Rule, categorically excluding
certain features from the definition including “ephemeral
streams,” or those that have flowing water only after a
storm.
Plaintiffs representing Native
American Tribes challenged the Navigable Waters Protection
Rule and requested that it be vacated.
Plaintiffs including the Pascua Yaqui
Tribe, Quinault Indian Nation, Fond du Lac Band of Lake
Superior Chippewa, Menominee Indian Tribe of Wisconsin,
Tohono O’odham Nation, and Bad River Band of Lake Superior
Chippewa moved for summary judgment on May 11.
In lieu of filing a response to the
plaintiffs’ motion for summary judgment, EPA and the Corps
sought to voluntarily remand the Navigable Waters Protection
Rule while they worked to revise or replace it and redefine
waters of the U.S. U.S.
District Judge Rosemary Marquez
granted the agencies’ motion for voluntary remand but also
granted plaintiffs’ motion to vacate the rule.
“Remanding without vacatur would risk
serious environmental harm,” she said, noting the agencies
have identified indicators of a substantial reduction in
waters covered under the rule compared to previous rules and
practices.
American Farm Bureau Federation said
it is “extremely” disappointed in the ruling.
“Farmers finally had environmentally
responsible regulations that brought clarity to clean water
efforts,” said Zippy Duvall, Farm Bureau president.
“This ruling casts uncertainty over
farmers and ranchers across the country and threatens the
progress they’ve made to responsibly manage water and
natural resources,” he said.
Three courts previously refused to
dismantle the Navigable Waters Protection Rule, including
last month when a federal court in South Carolina refused a
similar request from a group of plaintiffs, he said.
“Unfortunately, this Arizona court
simply accepted the plaintiffs’ assertions as true and did
something that no other court has done in vacating the NWPR,”
he said.
Farm Bureau is reviewing the ruling to
determine its next course of action, he said.
“Farmers and ranchers deserve
consistency and a rule that is fair and doesn’t require a
team of attorneys to interpret,” he said.
The National Cattlemen’s Beef
Association said the Navigable Waters Protection Rule
corrected the disastrous 2015 Waters of the U.S. rule and
provided key protections to farmers and ranchers.
The rule limited federal overreach and
provided regulatory certainty to cattle producers, said
Scott Yager, NCBA chief environmental counsel.
“The NWPR was a solution to the far
overreaching 2015 WOTUS rule, but yesterday’s court decision
adds further confusion to an issue that has been complicated
by decades of activist-driven litigation,” he said.
“NCBA is disappointed in this decision
and will continue advocating for regulations that protect
the ability of cattle producers to invest in their land and
care for their cattle,” he said.
