Is Another "Patchwork" Definition Of Waters Of The United States Coming?

• Published date: 10 September 2021
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Water
• Law Firm: Winston & Strawn LLP
• Author: Mr Jonathan D. Brightbill and Madalyn G. Brown

Since 2015, the Clean Water Act's definition of "waters of the United States" has often depended on what state you live in. After a district court decision in Arizona on September 3, 2021, the EPA and U.S. Army Corps of Engineers announced they are halting implementation of their 2020 Navigable Waters Protection Rule nationwide.¹ If history is any guide, the Agencies' announcement may not be the last word. Is the United States heading back to another "regulatory patchwork" of definitions of "waters of the United States"?

Background

The scope of the federal government's jurisdiction under the Clean Water Act is limited to "navigable waters," meaning "the waters of the United States."² As previously described, the EPA and U.S. Army Corps of Engineers (the "Agencies") are again reconsidering the "WOTUS" rule defining that term. On July 30, 2021, the Agencies announced plans to meet with stakeholders, then propose two new stepwise rules. The Biden administration plans to rescind the Trump administration's 2020 Navigable Waters Protection Rule ("NWPR"), stating that its categorical exclusion for ephemeral waters, in particular, is "leading to significant environmental degradation."³

In light of that determination, the Department of Justice ("DOJ") and the Agencies requested that district courts suspend pending litigation challenging the NWPR. The DOJ asked courts to remand the NWPR back to the Agencies while the Agencies reconsider the definition. In July, the U.S. District Court for the District of South Carolina granted this request for voluntary remand without vacatur.⁴ Similar remand without vacatur requests were granted, or are still pending, in other states. Until recently, no district court had denied the government's request to remand without vacatur.

On August 30, the United States District Court for the District of Arizona ordered a remand of the NWPR to the Agencies with vacatur.⁵ Shortly thereafter, headlines reported that the NWPR was no longer in effect. Nevertheless, commentators debate whether Judge Marquez's order alone could mean a vacatur nationwide. The DOJ has taken the position that individual district courts do not have the authority to enjoin or vacate rules on a nationwide basis under the Administrative Procedure Act ("APA").⁶ The Agencies themselves made these arguments in opposition to earlier motions to invalidate regulations regarding waters of the United States.⁷

While legal experts were still examining the Pascua Yaqui Tribe v. U.S. Environmental Protection Agency order, the Agencies took action. They announced that, in light of the order, the Agencies will no longer implement the...