One of the Trump administration’s most harmful environmental rules—the Navigable Waters Protection Rule (NWPR), which eliminated clean water protections for 60 percent of America’s streams and 110 million acres of wetlands—was invalidated by a federal judge in Arizona on Monday. The ruling returns the country’s waterways to levels of protection established in 1986, and leaves the door open for the Biden administration to enact significantly tighter ones.
The NWPR was enacted by the Environmental Protection Agency in 2019, after former President Trump had campaigned on disinformation that the Obama-era definition of “waters of the United States,” (WOTUS) was unduly burdening farmers. The history there is that, in 2015, the EPA assembled 1,200 scientific reports, and acted on the consensus that protections for ephemeral streams—which only flow after rainfall—and wetlands were needed to protect the major waterways they flow into. Specific exemptions for the agriculture industry were carved out in that rule, a fact that Trump conveniently ignored, calling the move “one of the worst examples of federal regulation,” and issuing an executive order for the EPA to revoke it during his first days in office.
The decision to invalidate the NWPR came after six Indigenous tribes, represented by , an environmental nonprofit legal organization, sued to reverse the rule, arguing that it ignored a huge volume of scientific consensus and threatened access to clean drinking water guaranteed by federal law.
The definition of WOTUS is crucial to the decision. While modifying the Clean Water Act—passed into law in 1972—requires an act of Congress, the definition dictating what kinds of water it applies to can be altered by the EPA, leaving it subject to political machinations.
“The seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur,” writes Judge Rosemary Márquez, of the Arizona district court, .
“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,” says Janette Brimmer, the Earthjustice Attorney who represented the Pascua Yaqui Tribe, Tohono O’odham Nation, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Fond du Lac Band of Lake Superior Chippewa, and the Bad River Band of Lake Superior Chippewa in court, . “This sensible ruling allows the Clean Water Act to continue to protect all of our waters while the Biden administration develops a replacement rule.”
The Washington Post reports that there are currently that would have required review under Obama-era clean water protections, but which did not under Trump’s rule. Their fate is now uncertain.
The court ruling comes as the Biden administration works on its own definition of WOTUS and to create protections that may be able to survive threats posed by future Republican presidencies. The EPA acknowledges this action is currently in process, but did not comment further.