Federal Judge Overturns Navigable Waters Protection Rule

August 30, in the U.S. District Court for the District of Arizona case Pasqua Yaqui Tribe v. United States Environmental Protection Agency, Judge Rosemary Márquez overturned the 2020 Navigable Waters Protection Rule (NWPR). The NWPR, issued by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) under then-President Trump, established a new definition for "waters of the United States" that are subject to regulation under the Clean Water Act. The NWPR narrowed the definition by excluding certain bodies of water, such as groundwater or creeks or streams that dry up at certain times of the year, from regulation. This followed EPA and USACE’s repeal of a 2015 rule that defined WOTUS more broadly.

President Biden’s EPA and USACE had requested the court allow the agency to follow its standard rulemaking process for repealing and replacing NWPR. However, environmentalist and tribal groups sued requesting that the NWPR be immediately dismissed. Judge Marquez granted this request, stating in her written ruling that the rule should be vacated based on her judgement of "the seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place."

The court did not provide immediate clarity on the regulations that will now be in place, and EPA has yet to issue guidance. A separate ruling is expected in the coming weeks regarding whether the 2015 rule will be reinstated. Further litigation from industry groups that are supportive of the NWPR is also likely, which could ultimately reverse this ruling. More information will be provided as it becomes available.

For any questions regarding WOTUS or APWA’s advocacy on water resiliency issues, please contact APWA Government Affairs Manager Michael Altman at maltman@apwa.net or (202) 218-6727.