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Court strikes down Navigable Waters Protection Rule


A federal judge in Arizona on Monday vacated the Navigable Waters Protection Rule put in a place by the Trump administration in 2020.

The rule reined in the Obama administration’s 2015 Waters of the U.S. rule, which greatly expanded federal jurisdiction under the Clean Water Act.

The Environmental Protection Agency and Army Corps of Engineers withdrew the 2015 WOTUS rule in 2019 and reinstated the pre-2015 regulations. In 2020, the agencies redefined the term “navigable waters” with the Navigable Waters Protection Rule, categorically excluding certain features from the definition including “ephemeral streams,” or those that have flowing water only after a storm.

Plaintiffs representing Native American Tribes challenged the Navigable Waters Protection Rule and requested that it be vacated.

Plaintiffs including the Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Bad River Band of Lake Superior Chippewa moved for summary judgment on May 11.

In lieu of filing a response to the plaintiffs’ motion for summary judgment, EPA and the Corps sought to voluntarily remand the Navigable Waters Protection Rule while they worked to revise or replace it and redefine waters of the U.S. U.S.

District Judge Rosemary Marquez granted the agencies’ motion for voluntary remand but also granted plaintiffs’ motion to vacate the rule.

“Remanding without vacatur would risk serious environmental harm,” she said, noting the agencies have identified indicators of a substantial reduction in waters covered under the rule compared to previous rules and practices.

American Farm Bureau Federation said it is “extremely” disappointed in the ruling.

“Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts,” said Zippy Duvall, Farm Bureau president.

“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,” he said.

Three courts previously refused to dismantle the Navigable Waters Protection Rule, including last month when a federal court in South Carolina refused a similar request from a group of plaintiffs, he said.

“Unfortunately, this Arizona court simply accepted the plaintiffs’ assertions as true and did something that no other court has done in vacating the NWPR,” he said.

Farm Bureau is reviewing the ruling to determine its next course of action, he said.

“Farmers and ranchers deserve consistency and a rule that is fair and doesn’t require a team of attorneys to interpret,” he said.

The National Cattlemen’s Beef Association said the Navigable Waters Protection Rule corrected the disastrous 2015 Waters of the U.S. rule and provided key protections to farmers and ranchers.

The rule limited federal overreach and provided regulatory certainty to cattle producers, said Scott Yager, NCBA chief environmental counsel.

“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.

“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,” he said.



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              Page Updated: Monday September 06, 2021 04:18 PM  Pacific

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