Rule to Remain While EPA and Army Corps Work on Rulemakings to Revoke and Replace

A South Carolina federal judge issued an order late last week allowing the Navigable Waters Protection Rule, the Trump administration’s “waters of the United States” rule, to remain in place while the U.S. Environmental Protection Agency and Army Corps of Engineers work on rulemakings to revoke and replace it. The final rule was issued in April 2020, redefining “waters of the United States” and narrowing the scope of Clean Water Act jurisdiction.

Several lawsuits have been filed in federal courts challenging the Navigable Waters Protection Rule. A coalition of environmental groups, led by the South Carolina Coastal Conservation League, challenged the rule in the U.S. District Court for the District of South Carolina. After the Biden administration took office, the EPA and Army Corps announced their intention in June 2021 to replace the Trump administration’s rule. The government agencies requested that the court remand the Navigable Waters Protection Rule to them for reconsideration, but they did not request that it be vacated. Remand without vacatur allows the rule to remain in place until the agencies complete the rulemaking process for revoking or replacing it.

The environmental groups challenging the rule argued that it should be vacated, which would return the definition of “waters of the United States” to its pre-2015 scope. U.S. District Judge Bruce Howe Hendricks sided with the agencies.

More information will be coming as we track the ongoing legal challenges and rulemaking process for defining the scope of “waters of the United States” under the Biden administration.

[View source.]