|September 2, 2021
On August 30, 2021, the United States District Court for the District of Arizona remanded and vacated the Navigable Waters Protection Rule (NWPR). The ruling did not limit this judicial action to Arizona and, therefore, it is being interpreted as applying nationwide. All pending and new approved jurisdictional determination requests are on hold indefinitely until further guidance is obtained. The U.S. Army Corps of Engineers (Corps) asked the Department of Justice to provide an interpretation and clarification to determine if the ruling applies nationwide.
The decision to vacate the NWPR was based on the district court judge’s evaluation that the NWPR has “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of waters of the United States,” including “the effect ephemeral waters have on traditional navigable waters.” Specifically, when deciding to categorically exclude ephemeral waters from the definition of “waters of the United States,” the NWPR did not thoroughly consider the potential of serious environmental harm, especially in the arid western states where ephemeral waters are common.
If the vacatur applies nationwide, it is likely that any pending or new approved jurisdictional determination requests will be processed under Rapanos guidance (also called “pre-2015” guidance) for determining waters of the U.S. ERO will continue to consult with our local Corps offices, update our clients on any developments, and provide recommendations, guidance, and strategies to our clients on existing and future projects.
Please feel free to contact Aleta Powers (firstname.lastname@example.org), Moneka
Worah (email@example.com), or your ERO project manager if you have any questions.
Court decision is available at: https://www.aswm.org/