The court case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency, decided by Judge Rosemary Márquez in the U.S. District Court for the District of Arizona, has effectively overturned the Trump era Waters of the United States (WOTUS) rule that placed a much-needed limitation on what waters could be regulated as wetlands under the Clean Water Act. Four days later, September 3, 2021, the Environmental Protection Agency wasted no time announcing they would now be regulating waters under the restrictive pre-2015 rule. The Obama Navigable Waters Protection Rule (NWPR) includes protections for the obvious “navigable” waterways, as well as “all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce….”
The EPA had already issued a new rule making process to do away with the Trump rule, signaling they would work to get as close to the pre-2015 rule in compliance with court decisions. This process will continue to move forward, but current regulatory actions will be governed under the restrictive Obama rule — making the wetlands permitting landscape as clear as mud.