On August 30, 2021, U.S. District Judge Rosemary Márquez, presiding in the District of Arizona, granted a request by the United States for voluntary remand of the Navigable Waters Protection Rule (NWPR) to allow for reconsideration of the rule by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE). The judge also granted the plaintiffs’ (Pascua Yaqui Tribe, et al.) request that the NWPR be vacated while the USACE and EPA reconsider the rule and work to develop a new definition of waters of the United States. The order further requests proposals from the case parties by September 30, 2021, regarding the future status of the 2019 repeal of the Obama-era Clean Water Rule (CWR), raising the potential that the regulations for determining waters of the United States could revert either to the 2008 post-Rapanos guidance or to the 2015 CWR.
This is an emerging regulatory development with significant uncertainty.
- In the immediate future, SWCA expects that USACE will issue nationwide guidance regarding the status of pending Approved Jurisdictional Determinations (AJDs) as well as how the USACE will make these determinations while the court weighs options for reinstating the post-Rapanos guidance or the CWR.
- Regarding the Arizona judge’s order, appeals by intervenors—including the National Stone, Sand, and Gravel Association; Arizona Cattle Feeders Association; and Home Builders Association of Central Arizona—could roll back the geographic reach of this order and possibly elevate the case to the U.S. Court of Appeals.