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Federal Judge Strikes Down Trump Administration’s Federal Wetlands Regulations Rule

Client Alert
August 31, 2021
Yesterday, a federal judge vacated the Trump Administration's Navigable Waters Protection Rule (“NWPR”) that had narrowed the scope of federal jurisdiction over wetlands. The order, from the U.S. District Court for the District of Arizona, applies nationwide and brings a swift end to the NWPR, even as the Biden administration has begun the process of reworking the regulation. Judge Rosemary Marquez found “fundamental, substantive flaws” with the NWPR and said that it was in conflict with the 1972 Clean Water Act. She warned of the “possibility of serious environmental harm” if the NWPR remained in place.

Agencies must now enforce an earlier 1986 rule, as interpreted by the U.S. Supreme Court’s 2006 Rapanos v. United States decision (and its “significant nexus” test), which imposes more expansive federal jurisdiction over wetlands than the NWPR. Based on its far-reaching consequences, that will impact a variety of industries and federal and state regulatory agencies, it is very likely that the order will be appealed and a stay requested, though the possible success or timeliness of that request cannot be accurately evaluated at this time. The Arizona case included numerous intervening parties, including among others, the National Sand, Stone, and Gravel Association, who have standing to file such an appeal.
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Howard E. Nelson

Howard E. Nelson

Partner, Head of Environmental Practice
John V. Chibbaro

John V. Chibbaro

Of Counsel
Liana M. Kozlowski

Liana M. Kozlowski

Client Alert September 8, 2021
As a result of the recent vacating and remanding of the Navigable Waters Protection Rule (“NWPR”) by a U.S. District Court, the Environmental Protection Agency and U.S. Army Corps of Engineers have halted implementation of the NWPR nationwide and are interpreting “waters of the Uni...