District Court Vacates Trump Administration "Waters" Rule, So What's Next for WOTUS?

 

The Army Corps and EPA were happy to have the Trump Administration rule remanded, as they are working on a more expansive replacement that will itself face legal challenge.

JONATHAN H. ADLER | 8.31.2021 7:09 PM

Yesterday a federal district court judge in Arizona vacated and remanded the Trump Administration's "Navigable Waters Protection Rule" (NWPR) which adopted a somewhat narrow definition of "waters of the United States" (WOTUS) under the the Clean Water Act (CWA). This definition is important because it determines the scope of federal regulatory authority under the CWA, including what wetlands are subject to CWA permitting requirements as part of the "waters of the United States."

The decision by Judge Rosemary Marquez in Pasqua Yaqui Tribe v. U.S. Environmental Protection Agency is merely the latest judicial decision in a decades-long fight over the scope of CWA regulatory jurisdiction. These fights date back to the 1980s, when the U.S. Army Corps of Engineers and Environmental Protection Agency first adopted expansive interpretations of their regulatory authority under the CWA. In the 2000s the agencies suffered two major losses in the Supreme Court (SWANCC and Rapanos), but failed to trim their regulatory ambitions.

The Obama Administration adopted an expansive WOTUS rule in 2015, and it too faced judicial skepticism, but was withdrawn by the Trump Administration in 2019 before reaching the Supreme Court on the merits. The NWPR was adopted in April 2020, and has now been vacated before it was even two years old.

Judge Marquez was aided in her conclusion that the NWPR by the agencies' acquiescence to many of the plaintiffs' arguments. Given the switch in adminstrations, the agencies conceded "substantial concerns about certain aspects of the NWPR . . . including whether the NWPR adequately considered the CWA's statutory objective" and "the effects of the NWPR on the integrity of the nation's waters." Such errors, Judge Marquez concluded, were fundamental, substantive flaws" in the rulemaking that required vacatur.

Left unaddressed in the opinion is the fact that such concerns were decisively rejected by Justice Kennedy in his controlling Rapanos opinion. Waters and wetlands must have "significant nexus" to "navigable waters" to fall within the CWA's ambit, Justice Kennedy explained, cautioning that "environmental concerns provide no reason to disregard the limits in the statutory text." The Trump NWPR, despite its flaws (which I discussed here), was the first Army Corps and EPA rule to take such limits seriously in over thirty years.

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Notice the areas I have highlighted.

The first highlight indicates how important this issue is to the feds. In spite of two Supreme Court losses, they refuse to give up authority. We must have water to survive and the feds want control over that water.

The second highlight shows the feds gave away the case for the enviros position. Compare this to the recent decision on wolves, where the feds are recognizing the authority of the states. Again showing the importance to them of the water issue. You can manage the wolves, even establish hunting seasons for them, but you cannot do the same with water.

The third highlight lets me answer the question of why one with libertarian tendencies such as I, would support a Trump presidency which failed us on so many issues. My answer is: If the feds control the land, the air and the water, the game is over. We must have land to live and produce on, we must breathe air and we cannot survive without water. We will have ceded total control over our lives to the feds, which is about as far from my political philosophy as you can get. Trump was bringing progress on the air and water issues, and so garnered my support.