New Court Decision Jeopardizes Water Rules

Ground-water flowing from large white pipe, LSU-Photo
Water rules in flux (LSU AgCenter photo)
Aug 31, 2021
ARLINGTON, VA -- Yesterday, a U.S. District Court judge in Arizona struck down the Trump-era Navigable Waters Protection Rule (NWPR), effectively nullifying the rule and all its provisions.  The judge found the NWPR in conflict with the Clean Water Act of 1972 and that the rule contained “fundamental, substantive flaws.”

Specifically, the judge said regarding the Environmental Protection Agency’s (EPA) and the Army Corp of Engineers’ “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.”

In public comments to be filed this week, USA Rice will remind the EPA and the Corps that their claims of environmental harm stemming from the NWPR have not been documented, thus calling into question the governments’ justification for efforts to repeal the NWPR.

Prior to implementing the NWPR in 2020, EPA and the Corps were first required to go through a lengthy regulatory process to repeal the 2015 Obama-era Waters of the U.S. (WOTUS) rule and temporarily reinstate the pre-2015 regulatory definition of waters of the U.S. which dated back to 1986.  This decision in a single judicial district creates a great deal of uncertainty regarding which definition of waters of the U.S. is applicable in rice producing states.
While not certain, the potential exists that waters could again be governed by the 1986 regulatory definition of waters of the U.S., that many agree is overly complicated and contradictory, and resulted in years of legal disputes while it was in effect.

Decisions and/or actions from the federal government as a result of this new ruling are pending.

“We are disappointed in this ruling as the NWPR is good for rice farmers and the rice industry,” said David Petter, an Arkansas rice farmer and chair of the USA Rice Regulatory Affairs Committee.  “The NWPR struck a balance between supporting economic activity and maintaining and clarifying clean water protections, which USA Rice continues to support.”

Earlier this year, the Biden Administration announced its intent to rewrite the WOTUS definition.  In the meantime, NWPR was to remain in effect as the Administration works to repeal and replace the NWPR with a rule of their own (see USA Rice Daily, June 10, 2021).  Three other prior rulings by federal court judges this year would have also allowed the NWPR to stay in place.