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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own set of legal challenges—being blocked in some states, delayed and un-delayed, blocked nationwide, and ultimately repealed by EPA in 2019.

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If you’re new to the EH&S field or need an update on changing EPA rules, Lion's live webinars are a convenient way to quickly build up critical expertise.

On December 1 & 2, join Lion for live Complete Environmental Regulations training to identify the EPA rules that impact you. This instructor-led two-day webinar is updated to cover new and changing environmental regulations you should know about, including: 

  • Latest on EPA's new Waters of the US (WOTUS) Rule
  • Major Lautenberg Law amendments to TSCA
  • CSB's new chemical release reporting rule 
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More on this topic: 

Final Rule Alert: EPA's Navigable Waters Protection Rule (April 2020) 
Final Rule Alert: 2015 WOTUS Rule Repealed (October 2019) 
EPA Re-defines Waters of the United States (June 2015) 

Tags: Clean Water Act, environmental compliance, NPDES permit, WOTUS

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