Court tosses Trump water pollution rule but still weighing restoration of Obama rule

A federal judge on Monday tossed out a Trump-era rule that rolled back water pollution protections but is still weighing whether to restore Obama-era protections or simply undo the Trump rollback to return to pre-Obama regulations. 

In a court order, Judge Rosemary Márquez, an Obama appointee, vacated the Trump administration’s Navigable Waters Protection Rule (NWPR), which governed which bodies of water get protection from pollution. Márquez remanded the rule for reconsideration to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. 

The Trump administration in 2019 repealed an Obama-era rule known as the Waters of the United States Rule, which expanded federal protections for smaller waterways. 

And last year, the former administration put forward an additional rule, the NWPR, that reversed some protections, including for wetlands, that had been in place for decades.

The 2020 rule is the one that Márquez tossed and gave parties to a lawsuit challenging it 30 days to file proposals about what to do about the repeal rule. 

The decision comes as the Biden administration seeks to revise the rule and asked the court to send the Trump rule back to it for reconsideration. 

But unlike the Biden administration, tribes challenging the rule argued in court that the Trump-era rules should be nixed completely. 

Márquez agreed to do so, at least for the 2020 rule, arguing that “remanding without vacatur would risk serious environmental harm.”

“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,” she wrote. 

The Biden administration has said that it found the Trump-era rule caused a 25 percentage point drop in decisions that waters should get Clean Water Act protections.

But prior to the ruling, the EPA was poised to return to pre-Obama conditions anyway, announcing late last month that a “forthcoming foundational rule” would temporarily restore protections that were in place prior to an Obama-era expansion in 2015. 

It said this would be part of a two-step approach that would also include an additional rule that will “refine this regulatory foundation” and create “an updated and durable definition of ‘waters of the United States.'”

EPA Administrator Michael Regan has been critical of both the Trump-era and Obama-era regulatory schemes, saying in the past that both of them “did not necessarily listen to the will of the people.”