EPA Moves to Repeal More Flexible Trump-Era Waters of the U.S. Rule after Court Ruling

In a new development, an Arizona federal district judge on August 30 tossed out the Trump administration’s April 2020 Navigable Waters Protection Rule (NWPR). The decision creates major uncertainty for a wide array of industries and landowners. The impact of the ruling is significant and continues the decades-long legal and regulatory battle over the scope of federal regulatory authority under the Clean Water Act, including what wetlands and other waters are subject to permitting under the definition of "waters of the United States."

In the 11-page decision vacating and remanding the NWPR, Judge Rosemary Marquez noted that EPA and the Army Corps of Engineers made serious errors in enacting the Trump-era rule, highlighted the likelihood that the agencies will revise the rule, and agreed with tribal plaintiffs on the possibility of serious environmental harm if the NWPR remains in place.

In a milestone response to the decision by Judge Marquez, EPA and the Army Corps of Engineers just after the Labor Day holiday announced that federal implementation of the Trump-era rule would be halted, and EPA would revert to pre-2015 policies governing federal jurisdiction over waters of the U.S.

While further litigation is likely, EPA and the Corps will continue to advance the rulemaking process to formulate yet another WOTUS definition that the agencies note will be “informed by diverse perspectives and based on an inclusive foundation.” The agencies have committed to releasing a new rule by early 2022 to redefine which waters of the U.S. are subject to federal regulatory authority.

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This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.