On Aug, 30, 2021, the U.S. District Court for the District of Arizona vacated the Navigable Waters Protection Rule (NWPR) and ordered it remanded for reconsideration (in the case of Pasqua Yaqui Tribe v. EPA). This was done at the request of the EPA and Army Corps of Engineers.

GCSAA knew that the EPA and Corps are working on a new rule and has been participating in the public commenting process, including a statement before regulators in Washington and written comments being filed with both the EPA and Corps. The wildcard is the Federal Court’s decision.

Here’s what is known and unknown. The plaintiffs in the case were tribal governments in a number of states: Arizona, Minnesota, Wisconsin and Washington. While the decision is immediate, its scope is unknown. It could apply only to those plaintiffs or to the states they reside in. This would mean the NWPR would still be in effect everywhere else. Normally, federal district court decisions face limits like this and are not applicable nationwide. However, the fact that both agencies seek to repeal the rule may lead them to ask the court to do so. That in itself could lead to additional litigation.

It is a time of uncertainty. GCSAA will provide updates as soon as more is known.