Federal Judge Vacates Major Clean Water Act Regulation

Posted on 9/3/2021 by Roseanne Bottone

On August 30, 2021, a Federal judge in Arizona vacated and remanded a 2020 regulation that narrowed the EPA's enforcement jurisdiction under the Clean Water Act. The decision is effective nationwide. It affects permit requirements for discharging pollutants to the water and permits to dredge and/or fill waters under Clean Water Act jurisdiction.

The Navigable Waters Protection Rule (NWPR)—which EPA is already working to replace-- “rolled back” regulatory changes made in 2015. The 2015 revisions broadened EPA’s jurisdiction by re-defining the term Waters of the United States (WOTUS) to encompass more of the nation’s wetlands, marshes, streams, and other waters.

In the decision to vacate and remand the 2020 NWPR, the Arizona judge expressed concern that the rule failed to adequately protect the nation’s waters. The Rule’s “fundamental, substantive flaws,” the judge wrote, “cannot be cured without revising or replacing the NWPR’s definition of ‘Waters of the United States.’”

An appeal is likely. Some stakeholders argue that vacating the NWPR returns the regulated community to the state of confusion that prompted the decades-long legal argument still playing out today.

As regulators work to replace the NWPR and more clearly define WOTUS (again), EPA will enforce pre-2015 Clean Water Act protections that date back to 1986.

The 2015 WOTUS Rule weathered its own set of legal challenges—being blocked in some states, delayed and un-delayed, blocked nationwide, and ultimately repealed by EPA in 2019.

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