October 21, 2021 | Category: News

On August 30, 2021, the U.S. District Court of Arizona issued an opinion that effectively repealed the Trump-era definition of Waters of the United States (“WOTUS”) under the Clean Water Act (“CWA”). Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency (2021) — F.Supp.3d — (“Pasqua”) involved a challenge by multiple Native American Tribes of two final rules promulgated under the Trump administration by the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) relating to the definition of WOTUS.

The first rule challenged in Pasqua, entitled “Definition of ‘Waters of the United States’ – Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) (“2019 Repeal”), repealed the “Clean Water Rule” promulgated in 2015 under the Obama administration. The “Clean Water Rule” redefined the term “navigable waters” under the CWA to include, among other things, upstream tributaries and adjacent waters, including wetlands, and waters that have a “significant nexus” to traditional navigable waters, interstate waters, or territorial seas. (See Clean Water Rule, 80 Fed. Reg. 37,054 (June 29, 2015).) By repealing the Clean Water Rule, the 2019 Repeal effectively restored the definition of WOTUS to the pre-Obama-era rule.

The second rule challenged in Pasqua, entitled “Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (“2020 Rule”), established a new definition of WOTUS, which included, among other things, tributaries and adjacent wetlands. However, the 2020 Rule categorically excluded ephemeral streams. (2020 Rule at p. 22,251.) Importantly, this narrower definition of WOTUS under the 2020 Rule resulted in 333 projects having been identified as projects that would have required Section 404 permitting under the Obama-era definition but did not under 2020 Rule. (See Pasqua at p. *5.)

In analyzing the 2020 Rule, the District Court determined the rule “involve[d] fundamental, substantive flaws” that cannot be cured without revising or replacing the Trump-era definition of WOTUS. (Id. at p. *5.) For example, the EPA and the Corps stated, and the District Court implicitly agreed, that the 2020 Rule did not properly analyze the effects ephemeral waters have on traditional navigable waters before categorically excluding ephemeral waters from the definition of WOTUS. (Ibid.) Accordingly, the District Court ordered that the 2020 Rule be vacated and remanded for reconsideration by the EPA and the Corps. (Id. at p. *6.) The District Court denied all pending summary judgment motions relating to the 2019 Repeal, and requested further briefing on this issue. (Ibid.)

Importantly, the EPA and the Corps announced earlier this month their intention to develop a new regulatory definition of WOTUS, and requested input from the public on the potential definition. (See 86 Fed. Reg. 41,911 (Aug. 4, 2021).) In fact, this is acknowledged in the Pasqua opinion. (See Pasqua at p. *3.)

The primary concern with the Pasqua decision is what definition of WOTUS currently controls now that the Trump-era 2020 Rule has been vacated. The District Court ordered additional briefing on whether the 2019 Rule (which repealed the Obama-era Clean Water Rule) should also be vacated. If the Clean Water Rule is not reinstated, the pre-Obama regulatory regime would control. Second, it is not yet clear whether this decision is limited in scope to the jurisdiction of the District Court of Arizona, or if this decision has a nationwide effect. The Biden administration is expected to announce in the coming days whether the Pasqua ruling is going to be interpreted as being limited to the District Court of Arizona’s jurisdiction or if it will instead repeal the 2020 Rule nationwide. If it is determined that the Pasqua decision has a nationwide effect, the decision will undoubtedly have a major effect on projects as it effectively restores the previous overly broad definitions of WOTUS, until the EPA and the Corps promulgate a final rule in the future regarding the definition of WOTUS.