ELR Citation: 51 ELR 20167
No(s). CV-20-00266-TUC-RM (D. Ariz. Aug 30, 2021) (Márquez, J.)

A district court vacated and remanded EPA's and the Army Corps of Engineers' Navigable Waters Protection Rule, which established a new definition of "waters of the United States" under the CWA. EPA and the Corps sought voluntary remand of the rule without vacatur to give them time to revise or replace the rule and redefine "waters of the United States," and Native American tribes argued remand should include vacatur. The court found no indication in the record that the agencies' request for voluntary remand was frivolous or made in bad faith. It also found that the concerns about the rule involved fundamental, substantive flaws that could not be cured without revising or replacing the definition of "waters of the United States," and that remanding without vacatur would risk serious environmental harm. It therefore granted the agencies' motion for voluntary remand, and granted the tribes' request that remand include vacatur.