05 May 2020

Seventeen States Challenge U.S. EPA’s Navigable Waters Protection Rule

On May 1, 2020, 17 states sued the U.S. Environmental Protection Agency (EPA) over the agency’s January 23, 2020, navigable waters protection rule (NWP rule). Filed in the U.S. District Court for the Northern District of California, the lawsuit seeks to vacate the NWP rule as contrary to the Clean Water Act (CWA) and arbitrary and capricious. The states’ lawsuit follows other challenges to the NWP rule filed by livestock producers on the right and by environmental groups on the left.

As noted in our January 2020 post, the NWP rule redefined the scope of the waters subject to federal jurisdiction under the CWA. That question has been debated since the 1970s and was most recently before the Supreme Court in Rapanos v. United States. The NWP rule takes a narrower view of the waters subject to federal jurisdiction than previous EPA interpretations. In their complaint, the states assert that the NWP rule removes CWA protections from waters that the states believe should be covered by the statute.