CBA Record November-December 2021


effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’” Comparatively, the Significant Nexus Test brings more water bodies under the CWA’s purview than the Scalia Test. The Seventh Circuit and other federal circuits subsequently adopted the Significant Nexus Test. See , e.g., United States v. Gerke Excavating, Inc. , 464 F.3d 723, 725 (7th Cir. 2006) (“Justice Kennedy’s proposed standard . . . must govern the further stages of this litigation ….”). Under the Obama administration, the EPA and the USACE redefined the term “navigable waters” in the “Clean Water Rule.” See 80 Fed. Reg. 37054 (June 29, 2015). But in 2017, former President Trump directed the agencies to repeal the Clean Water Rule and replace it with the Scalia Test. In 2019, the EPA and the USACE repealed the Clean Water Rule and issued the NavigableWaters Protection Rule (NWPR) in its place. The NWPR re- defined the term WOTUS to include the territorial seas, waters used in interstate or foreign commerce, tributaries, lakes and ponds and impoundments of jurisdictional waters, and adjacent wetlands. 85 Fed. Reg. 22250, 22340 (Apr. 21, 2020) (codified at 40 C.F.R. § 120.2). Current Status In Pasqua Yaqui Tribe v. EPA , a group of Native American tribes challenged the NWPR. No. 20-cv-00266, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). With the election of President Biden and his directive to reconsider Trump-era regula- tions, defendants EPA and USACE moved to voluntarily remand the NWPR to the agencies and to dismiss the claims chal- lenging that rule but without vacatur of the NWPR. The agencies had already provided notice that they intended to restore the pre-2015 definition of WOTUS ( i.e. , the Significant Nexus Test) while they worked to develop a new definition of WOTUS. Plaintiffs did not oppose the remand of the NWPR to the agencies, but they argued that a remand of the NWPR should include vacatur of the NWPR. The Court

agreed with Plaintiffs and, on August 30, 2021, the Court vacated and remanded the NWPR to the EPA and USACE for reconsideration. It is unclear, however, whether the court’s remand and vacatur of the NWPR applies nationwide, or only in Arizona. In fact, in other cases challenging the NWPR, at least one federal court has granted the EPA’s and the USACE’s request to remand the rule without vacatur . For example, in South Carolina Coastal Conservation League v. Regan , the Court granted the EPA’s and USACE’s motion for voluntary remand of the NWPR without vacatur of that rule. No. 20-cv-01687-BHH, 2021 U.S. Dist. LEXIS 132031 (D.S.C. July 14, 2021). Another court vacated a district court’s order that stayed the effective date of the NWPR and preliminarily enjoined the EPA and USACE from implementing the NWPR in Colorado because the State did not show that it would suffer irreparable injury from the law taking effect. Colorado v. U.S. Env’t Prot. Agency , 989 F.3d 874 (10th Cir. 2021). On remand in Colo- rado , the parties jointly moved to hold the case in abeyance in light of the EPA’s and USACE’s announcement that they would initiate a new WOTUS rulemaking. The district court granted the parties’ motion.

Order on Motion to Stay, Colorado v. U.S. Env’t Prot. Agency , No. 20-cv-01461-WJM- NRN (D.C. Colo. July 14, 2021). Though the impact of the Pasqua Yaqui Tribe decision remains unclear, the EPA and the USACE announced that they “have halted implementation of the [NWPR] and are interpreting [WOTUS] consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps.” On October 12, the EPA and USACE sent a draft proposed rule on WOTUS to the White House Office of Management and Budget for pre-publi- cation review, and we can expect a new rule in the coming months. As of now, however, the CWA world is turning back to Rapanos -era regulation. Alex Garel-Frantzen i s an environmen- tal lawyer at Schiff Hardin LLP in Chi- cago, where he repre- sents businesses in a wide variety of envi- ronmental regulatory, permitting, transactional, and litigation matters.


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