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Litigation, Confusion to Follow Overturning of Trump Water Rule

Aug. 31, 2021, 7:15 PM

A federal court ruling tossing out a Trump-era rule defining waters of the United States is fueling even more uncertainty about federal wetlands jurisdiction and puts possibly hundreds of projects in legal limbo, lawyers say.

The decision in Pasqua Yaqui Tribe v. EPA is the latest twist in a decades-long tug-of-war over how to define WOTUS under the Clean Water Act, which determines how wetlands can be developed. It instantly touched off debates over how widespread it will be applied.

It could set off a cascade of lawsuits to the ruling itself, and possibly to future WOTUS definitions, said Dave Owen, an environmental law professor at the University of California-Hastings College of the Law.

“This isn’t going to be the last word,” Owen said. “The bottom line is there’s going to be more litigation.”

Judge Rosemary Marquez of the U.S. District Court for the District of Arizona on Monday vacated the 2020 Navigable Waters Protection Rule, which triggered a pre-2015 definition of WOTUS until the Biden administration finishes writing its own definition.

Marquez found that the Trump rule violated the text and purpose of the Clean Water Act and adopted an interpretation of the act that was rejected by the Supreme Court, leading to irreparable harm to numerous streams, said Stuart Gillespie, an attorney for Earthjustice who represented six Arizona tribal groups in the case.

“The ruling is really significant in that it restores Clean Water Act protections across the nation,” he said, noting that the Trump rule “rolled back protections for all sorts of different water bodies.”

Impact on Industry, Farms

The construction industry and farmers may be the businesses most affected by the ruling, but ecosystems are likely to be the biggest beneficiaries, including Georgia’s Okefenokee Swamp. A titanium mine is planned to fill wetlands nearby, possibly threatening the hydrology of the swamp itself.

But the ruling is poised to throw agriculture into turmoil, Zippy Duvall, president of the American Farm Bureau Association, said in a statement.

“Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts,” Duvall 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.”

The George W. Bush administration re-defined WOTUS after a fractured 2006 court ruling in Rapanos v. U.S. The Obama administration expanded that definition in 2015, only to be rolled back by Trump in 2020.

“This ruling returns the status quo—we go back to Rapanos,” Gillespie said. “This gets us back to the status quo while the Biden figures out what to do next.”

‘Is it Nationwide?’

The Biden administration had argued to keep the Trump rule in place while the EPA goes through a new WOTUS rulemaking process. But the judge said the Trump rule is too damaging to wetlands to let it continue

“This is the equivalent of a nationwide injunction,” said Neal McAliley, an attorney with the Miami office of Carlton Fields P.A. The Biden administration won’t likely appeal, but intervening defendants may do so.

Regardless, “this ruling has a very good chance or even a likelihood of sticking, " McAliley said.

But Marquez didn’t issue an injunction, so business groups could challenge the vacatur by arguing that it only applies in Arizona, said Larry Liebesman, a former Justice Department environmental lawyer who is now a senior adviser at the environmental and water permitting firm of Dawson & Associates.

“The question is, is it nationwide?” he said.

The Biden administration must decide whether to apply the court’s ruling nationally or or only within the District of Arizona, said Kevin Minoli, a partner at Alston & Bird LLP in Washington and a former EPA lawyer.

The Obama administration argued that a federal court could only vacate a rule within the limits of its jurisdiction, leading to a patchwork of WOTUS rules in effect, depending on the state, Minoli said.

“The Department of Justice will be reluctant to concede that a single district court judge has the authority to change the rules across the entire country,” he said.

EPA spokesman Timothy Carroll said the agency is reviewing Marquez’s decision. He declined to comment further, pointing to EPA Administrator Michael Regan’s Tuesday tweet calling the ruling “significant” as the agency develops a “durable” WOTUS rule.

Exposing Projects to Challenge

The decision could expose possibly hundreds of projects that proceeded under the Navigable Waters Protection Rule to litigation, Gillespie said. The Trump rule lifted federal dredge-and-fill permitting requirements and jurisdiction from thousands of miles of ephemeral streams and other wetlands across the U.S., leaving only states—or no one at all in some cases—as the sole regulatory authority over those waters.

While the Trump rule was in effect, the Army Corps of Engineers issued hundreds of jurisdictional determinations about whether proposed developments in formerly federal waters needed a permit. Some projects may have gone forth without any federal notification.

The Army Corps on Tuesday declined to comment, referring questions to the EPA.

The fate of the projects that needed no federal permit under the Trump-era rule is unclear. Army Corps determinations are good for five years, but Gillespie said they’re ripe for challenge because the underlying legal justification for them was vacated.

Other lawyers say those projects are likely on solid legal ground for now.

“We’re talking lots and lots of permits” and only a handful are likely to be challenged in court, Owen said.

Many projects that went ahead under Trump’s Navigable Waters Protection Rule already have filled in wetlands and, for those, it’s likely too late for a legal challenge, McAliley said.

“It doesn’t mean that a federal court couldn’t come back that particular jurisdictional determination was erroneous,” Liebesman said.

The EPA is scheduled to host its final public meetings this week on its proposal to replace the Trump-era WOTUS rule. Public comment will close Sept. 3.

The case is: Pasqua Yaqui Tribe v. EPA, D. Ariz., No. 4:20-cv-00266, 8/30/21.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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