The Navigable Waters Protection Rule (NWPR), the Trump administration’s proposed replacement for the 2015 Waters of the U.S. (WOTUS) rule, survived a major legal test on June 19 when a federal judge in California rejected a request for a nationwide injunction of the rule. Hours later, however, a federal judge in Colorado blocked the rule in that state.
The NWPR was approved by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers earlier this year (GM Jan. 24, p. 1) to replace the Obama-era WOTUS rule and more narrowly define the types of water governed by the Clean Water Act (CWA). The NWPR was slated to take effect on June 22, but a coalition of 17 liberal states and cities challenged the rule and sought an injunction based on charges that the EPA and Corps violated multiple federal laws in drafting the rule and repealing WOTUS.
After hearing a lengthy session of arguments on June 18, however, Judge Richard Seeborg of the U.S. District Court for the Northern District of California ruled that the federal agencies had not violated the Administrative Procedure Act in crafting the NWPR.
“Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different,” Seeborg wrote. “The court’s narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the Administrative Procedure Act. In that context, plaintiffs have not made a sufficient showing to support an injunction or an order delaying the effective date of the new rule.”
Hours after Judge Seeborg’s ruling, however, a federal judge in Colorado agreed to freeze the NWPR in that state. As a result, the new rule is technically now in effect in all states but Colorado, although other lawsuits challenging the NWPR are pending in district courts across the country.
Colorado’s legal challenge was filed in the U.S. District Court for the District of Colorado. According to Bloomberg Law, Judge William J. Martinez said some of the state’s arguments were “unusual and partly self-contradictory,” but concluded that the state met the bar for a preliminary injunction, which puts the NWPR on hold in that state while the litigation plays out.
A coalition of tribal governments, environmental groups, and labor advocates have also sued to stop implementation of the NWPR. The suit was filed concurrently in the U.S. District courts in Tucson, Ariz., and Seattle, Wash., on behalf of plaintiffs that include Earthjustice, the Sierra Club, Mi Familia Vota, and a number of tribal governments in Arizona and Washington.
The NWPR identifies four water categories that are federally regulated under the CWA: territorial seas and traditional navigable water, such as the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands that are adjacent to jurisdictional waters.
The rule also details which waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.
At the time of its release in January, the new rule was praised by The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA), both of which had voiced strong opposition to the 2015 WOTUS rule.
“We are pleased the new rule is realistic, practical, consistent with the Clean Water Act, and based on science,” said ARA President and CEO Daren Coppock in a January statement. “The rule it replaces was not realistic or practical, and it overstepped the boundaries of its authorizing statute. Under this rule, our members and their farmer customers will be able to operate with much more certainty. And the waters of the U.S. will continue to be protected as required by Congress, despite the doomsday predictions of some opponents.”