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Trump Administration’s Clean Water Rule to Remain as Agencies Seek its Revision

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by Patrick J. Paul

On Wednesday, July 14, 2021, a federal court in South Carolina allowed the Trump administration’s Navigable Waters Protection Rule (NWPR), defining the scope of Clean Water Act jurisdiction, to remain in place while the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) work on a replacement rule. Although opposed by environmental groups who preferred not only a remand of the NWPR, but also its vacatur, the court agreed with the agencies’ request for remand without vacatur.

Consistent with an early executive order by President Biden directing all agencies to review Trump administration-era rules, the EPA and Corps, in June 2021, announced their intention to rescind and replace the Navigable Waters Protection rule NWPR, having determined the existing rule was leading to “significant environmental degradation.”

Already subject to much federal court litigation, the EPA and Corps acknowledged substantial concerns about the NWPR including whether it gave “sufficient consideration” to the categorical exclusion of ephemeral waters from the rule’s scope. These concerns, it argues, mirror those raised by the environmental groups also opposing the NWPR. However, both the EPA and Corps preferred to leave the NWPR in place to avoid confusion likely to ensue should the rule be vacated prior to being revised.