Arizona Court Vacates Trump Water Rule

Federal Court Vacates, Sends Trump Water Rule Back to EPA for Rewrite

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A federal court has vacated the Trump Navigable Waters Protection Rule. (DTN file photo by Mary Kennedy)

This article was originally published at 6:47 a.m. CDT on Tuesday, Aug. 31. It was last updated at 2:52 p.m. CDT on Tuesday, Aug. 31, with reactions from agriculture groups.

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LINCOLN, Neb. (DTN) -- A federal court ordered EPA to vacate the Trump Navigable Waters Protection Rule saying in a ruling on Monday it contained errors harmful to the environment.

The U.S. District Court for the District of Arizona issued the ruling in a lawsuit filed by Pasqua Yaqui Tribe. The EPA had asked for remand and for the court to vacate the rule, while the Biden administration conducts a rewrite.

American Farm Bureau Federation President Zippy Duvall said in a statement on Monday evening his group was "extremely disappointed" in the court's decision to strike down a rule largely supported by farmers and ranchers.

"Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts," he 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."

Other federal courts including the U.S. District Court for the District of South Carolina previously ruled against motions to vacate the rule.

"We are reviewing the ruling to determine our next course of action," Duvall said. "Farmers and ranchers deserve consistency and a rule that is fair and doesn't require a team of attorneys to interpret."

AFBF was one of several groups to have intervened in the Arizona case.

The court's ruling is the latest drama in a long legal back and forth starting in 2015. The Trump administration threw out the 2015 waters of the United States, or WOTUS, rule and replaced it with the Navigable Waters Protection Rule.

In announcing the rule rewrite in June, the Biden administration pointed to "lack of protections" in arid states like New Mexico and Arizona, "where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do."

In its ruling, the Arizona court pointed to the EPA claim as part of the reason for vacating the Trump rule. The agency had filed a motion for a voluntary remand of the Trump rule to allow for a rewrite, and the plaintiffs in the case asked for the rule to be vacated.

The court granted both motions. citing that problems with the rule were not simple procedural errors that could be cleared up through more explanations.

"Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR's definition of 'waters of the United States.' Accordingly, this is not a case in which the agency could adopt the same rule on remand by offering 'better reasoning or ... complying with procedural rules.' Neither is this a case in which vacatur 'could result in possible environmental harm.' To the contrary, remanding without vacatur would risk serious environmental harm," U.S. District Judge Rosemary Marquez wrote.

Mike Levin, senior director of governmental affairs for the Illinois Soybean Association, told DTN one of his main concerns with the court's ruling is it potentially erases the ability to create watershed stewardship practices that allow for regional differences.

"Illinois is a big state, and we've been working to educate farmers on ways to be better stewards, to show what we believe are the proper practices for good stewardship, but to allow for the regionality of that," he said. "This could be a big step backwards."

Scott Yager, chief environmental counsel of the National Cattlemen's Beef Association, said the rule limited "federal overreach" and provided "regulatory certainty" to cattle producers.

"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 in a news statement. "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."

Environmental group Earthjustice represented the Tribes in the lawsuit challenging the Trump rule.

"The court recognized that the serious legal and scientific errors of the dirty water rule were causing irreparable damage to our nation's waters and would continue to do so unless that Rule was vacated," Earthjustice attorney Janette Brimmer, said in a statement. "This sensible ruling allows the Clean Water Act to continue to protect all of our waters while the Biden administration develops a replacement rule."

Read more on DTN:

"EPA to Rewrite Trump Clean Water Rule" https://www.dtnpf.com/…

"Court Asked to Vacate Trump Water Rule" https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

Todd Neeley