Federal Court Vacates Trump Water Rule

by Colter Brown

LINCOLN, Neb. (DTN) – A federal court ordered EPA to vacate the Trump Navigable Waters Protection Rule saying in a ruling on Monday it contained errors harmful to the environment.

The U.S. District Court for the District of Arizona issued the ruling in a lawsuit filed by Pasqua Yaqui Tribe. The EPA had asked for remand and for the court to vacate the rule, while the Biden administration conducts a rewrite.

American Farm Bureau Federation President Zippy Duvall said in a statement on Monday evening his group was “extremely disappointed” in the court’s decision to strike down a rule largely supported by farmers and ranchers.

“Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts,” he said. “This ruling casts uncertainty over farmers and ranchers across the country and threatens the progress they’ve made to responsibly manage water and natural resources.”

Other federal courts including the U.S. District Court for the District of South Carolina previously ruled against motions to vacate the rule.

“We are reviewing the ruling to determine our next course of action,” Duvall said. “Farmers and ranchers deserve consistency and a rule that is fair and doesn’t require a team of attorneys to interpret.”

AFBF was one of several groups to have intervened in the Arizona case.

The court’s ruling is the latest drama in a long legal back and forth starting in 2015. The Trump administration threw out the 2015 waters of the United States, or WOTUS, rule and replaced it with the Navigable Waters Protection Rule.

In announcing the rule rewrite in June, the Biden administration pointed to “lack of protections” in arid states like New Mexico and Arizona, “where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do.”

In its ruling, the Arizona court pointed to the EPA claim as part of the reason for vacating the Trump rule. The agency had filed a motion for a voluntary remand of the Trump rule to allow for a rewrite, and the plaintiffs in the case asked for the rule to be vacated.

The court granted both motions. citing that problems with the rule were not simple procedural errors that could be cleared up through more explanations.

“Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’ Accordingly, this is not a case in which the agency could adopt the same rule on remand by offering ‘better reasoning or…complying with procedural rules.’ Neither is this a case in which vacatur ‘could result in possible environmental harm.’ To the contrary, remanding without vacatur would risk serious environmental harm,” U.S. District Judge Rosemary Marquez wrote.

Scott Yager, chief environmental counsel of the National Cattlemen’s Beef Association, said the rule limited “federal overreach” and provided “regulatory certainty” to cattle producers.

“The NWPR was a solution to the far overreaching 2015 WOTUS rule, but yesterday’s court decision adds further confusion to an issue that has been complicated by decades of activist-driven litigation,” he said in a news statement. “NCBA is disappointed in this decision and will continue advocating for regulations that protect the ability of cattle producers to invest in their land and care for their cattle.”

Environmental group Earthjustice represented the Tribes in the lawsuit challenging the Trump rule.

“The court recognized that the serious legal and scientific errors of the dirty water rule were causing irreparable damage to our nation’s waters and would continue to do so unless that Rule was vacated,” Earthjustice attorney Janette Brimmer, said in a statement. “This sensible ruling allows the Clean Water Act to continue to protect all of our waters while the Biden administration develops a replacement rule.”


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