326 F.Supp.3d 1356 (S.D.Ga. 2018), 2:15-cv-79, State v. Pruitt

Docket Nº:No. 2:15-cv-79
Citation:326 F.Supp.3d 1356
Party Name:State of GEORGIA, et al., Plaintiffs, v. Scott PRUITT, et al., Defendants.
Attorney:Sarah Hawkins Warren, Andrew Alan Pinson, Office of the Attorney General, James Doyle Coots, Georgia Dept. of Law, Atlanta, GA, Erica N. Peterson, Pro Hac Vice; Lindsay S. See, Pro Hac Vice; Zachary Aaron Viglianco, Pro Hac Vice; West Virginia Attorney General’s Office, Charleston, WV, Andrew L. ...
Case Date:June 08, 2018
Court:United States District Courts, 11th Circuit, Southern District of Georgia

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326 F.Supp.3d 1356 (S.D.Ga. 2018)

State of GEORGIA, et al., Plaintiffs,


Scott PRUITT, et al., Defendants.

No. 2:15-cv-79

United States District Court, S.D. Georgia, Brunswick Division

June 8, 2018

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Sarah Hawkins Warren, Andrew Alan Pinson, Office of the Attorney General, James Doyle Coots, Georgia Dept. of Law, Atlanta, GA, Erica N. Peterson, Pro Hac Vice; Lindsay S. See, Pro Hac Vice; Zachary Aaron Viglianco, Pro Hac Vice; West Virginia Attorney General’s Office, Charleston, WV, Andrew L. Brasher, Pro Hac Vice; Office of the Attorney General, Montgomery, AL, Jonathan A. Glogau, Pro Hac Vice; Florida Office of the Attorney General, Tallahassee, FL, Jeffrey A. Chanay, Pro Hac Vice; Office of Kansas Attorney General Derek Schmidt, Topeka, KS, Joseph A. Newberg, II, Pro Hac Vice; Sean J. Riley, Pro Hac Vice; Samuel R. Flynn, Pro Hac Vice; Office of the Attorney General, Frankfort, KY, James Emory Smith, Pro Hac Vice; Office of the SC Attorney General, Columbia, SC, Parker Douglas, Pro Hac Vice; Tyler R. Green, Pro Hac Vice; Attorney General’s Office, Salt Lake City, UT, Karla Z. Keckhaver, Pro Hac Vice; Misha Tseytlin, Wisconsin Department of Justice, Madison, WI, Andrew Jonathan Norton, Pro Hac Vice; Craig A. Bromby, Pro Hac Vice; Sam M. Hayes, Pro Hac Vice; NC Dept. of Environment and Natural Resources, Asher Paris Spiller, Pro Hac Vice; North Carolina Department of Justice, Raleigh, NC, Thomas M. Fisher, Pro Hac Vice; Indiana Attorney General’s Office, Indianapolis, IN, for Plaintiffs.

J. Amy Dona, Daniel Dertke, Jessica O’Donnell, U.S. Dept. of Justice, Natural Resources Division, Andrew J. Doyle, U.S. Dept of Justice-Environmental Defense Section, Martha Mann, Stephen Samuels, U.S. Dept. of Justice, Washington, DC, John Thomas Clarkson, Jonathan Alan Porter, U.S. Attorney’s Office, Savannah, GA, for Defendants.



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This Matter comes before the Court on Plaintiffs’ Motion for Preliminary Injunction. Dkt. No. 32. This matter has been fully briefed, including by amici curae, and orally presented at a hearing. It is now ripe for review. For the following reasons, this Motion is GRANTED.


Plaintiffs State of Georgia, State of West Virginia, State of Alabama, State of Florida, State of Kansas, Commonwealth of Kentucky, State of South Carolina, State of Utah, and State of Wisconsin ("the States")1 filed the present lawsuit on June 30, 2015, against the administrators of the United States Environmental Protection Agency ("EPA") and the United States Army Corps of Engineers ("Army Corps") (collectively, "the Agencies"). Dkt. No. 1. The States alleged that the Agencies had issued a final rule ("WOTUS Rule") the previous day (June 29, 2015) defining "Waters of the United States." Dkt. No. 1 ¶ 5 (citing 80 Fed.Reg. 37,053-37,127). The States claimed that the WOTUS Rule violated the Clean Water Act ("CWA"), the Administrative Procedure Act ("APA"), as well as the Commerce Clause and Tenth Amendment of the U.S. Constitution, and that they were entitled to injunctive relief. 33 U.S.C. § § 1344, 1362(7); 5 U.S.C. § 706(2)(A); U.S. Const. art. I, § 8; U.S. Const. amend. X.

Congress enacted the Clean Water Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters." 33 U.S.C. § 1251(a). One of the Act’s principal tools in achieving that objective is the prohibition of "the discharge of any pollutant" defined as "any addition of any pollutant to navigable waters from any point source," and "navigable waters," in turn, is defined as "waters of the United States, including the territorial seas." Id. § 1311(a), § 1362(12), (14), (7). "Because many of the Act’s substantive provisions apply to ‘navigable waters,’ the statutory phrase ‘waters of the United States’ circumscribes the geographic scope

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of the Act in certain respects." Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 583 U.S. __, 138 S.Ct. 617, 624, 199 L.Ed.2d 501 (2018). The Act also requires that anyone who discharges pollutants into navigable water obtain a permit. Id. (citing § 1311(a) ). The process of obtaining these permits can take years and cost hundreds of thousands of dollars, and discharging into "navigable waters" without a permit can subject the discharging party of a fine of up to $37,500 per violation, per day, as well as criminal penalties. 22 U.S.C. § § 1311, 1319, 1365; 74 Fed.Reg. 626, 627-28 (Jan. 7, 2009); Rapanos v. United States, 547 U.S. 715, 721, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

Responding to calls for precision in the definition of "waters of the United States," the Agencies jointly promulgated the WOTUS Rule to "provid[e] simpler, clearer, and more consistent approaches for identifying the geographic scope of the [Act]." 80 Fed.Reg. 37054 at 37057. And so, the WOTUS Rule separates waters into three jurisdictional groups. First, it defines "tributaries" of primary waters as per se waters of the United States, with tributary defined as "a water that contributes flow, either directly or through another water," to a primary water and "is characterized by the presence of the physical indicators of a bed and bank and an ordinary high water mark," declaring for the first time that "remote sensing sources" or "mapping information" would be used to detect these "physical indicators." 33 C.F.R. § 328.3(c)(3); 80 Fed.Reg. at 37,076-78. The WOTUS Rule also envisions the use of "desktop tools" for "hydrologic estimation of a discharge sufficient to create an ordinary high water mark" to identify the presence of a bed, bank, and OHWM, or even the historical presence of such where physical characteristics are "absent in the field." Id. at 37,077.

Second, the WOTUS Rule declares that all "adjacent" waters are per se jurisdictional, defining "adjacent waters" as waters and wetlands "bordering, contiguous or neighboring" primary waters, even if they are separated from the primary water by man-made or natural barriers. 33 C.F.R. § 328.3(c)(1).

Third, the WOTUS Rule also grants authority to the Agencies over certain waters with a relationship to a primary water, to include: (1) all waters, any part of which are within the 100-year floodplain of a primary water; and (2) all waters, any part of which are within 4,000 feet of the high tide line or ordinary high water mark of a primary water, impoundment, or tributary. Id. § 328.3(a)(8).

With the WOTUS Rule’s new definition of "waters of the United States," the Agencies estimated that determinations of federal jurisdiction would increase by 2.84% to 4.65% annually. 80 Fed.Reg. at 37,101.2

The WOTUS Rule’s effective date was August 28, 2015, and so the States filed a motion for preliminary injunction on July 21, 2015 to enjoin enforcement of the WOTUS Rule before it became effective. Dkt. No. 32. This Court held a hearing on the Motion on August 12, 2015. Dkt. No. 70. On August 27, 2015, the Court issued an order denying the preliminary injunction for lack of jurisdiction, holding that original jurisdiction lay with the Courts of Appeals. Dkt. No. 77.

Meanwhile, similar lawsuits3 were brought around the country. The same day

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that this Court decided it lacked jurisdiction (August 27, 2015), the District of North Dakota granted the preliminary injunction to thirteen other states4 challenging the WOTUS Rule. North Dakota v. U.S. Envtl. Prot. Agency, 127 F.Supp.3d 1047 (D.N.D. 2015).

On January 22, 2018, the Supreme Court held that original jurisdiction of this dispute lies with the district courts, not with the Courts of Appeals. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. __, 138 S.Ct. 617 (2018). As a result, the Motion is properly before this Court.

In the interim, things have changed. The President of the United States issued an executive order in March 2017 for reconsideration of the WOTUS Rule. Exec. Order No. 13 ,778,82 Fed.Reg. 12,497 (Mar. 3, 2017). In response, the Agencies proposed a rule on July 27, 2017, that, once implemented, would rescind the WOTUS Rule and recodify the pre-2015 regulatory definition of "waters of the United States." See Definition of "Waters of the United States" - Recodification of Pre-Existing Rules, 82 Fed.Reg. 34899, 34901-34902. Then, in November 2017, following oral argument in National Association of Manufacturers v. Department of Defense, the Agencies proposed another new rule. That one became final on February 6, 2018 ("Applicability Rule"). The Applicability Rule is identical to the WOTUS Rule but provides an effective date of February 6, 2020. Until then, the Agencies assert that the WOTUS Rule "is being actively reconsidered by the Agencies." Dkt. No. 154-1, p. 1.

The Applicability Rule, in turn, has now been challenged in several lawsuits. Two lawsuits are pending in the Southern District of New York— the first involves a coalition of eleven states led by New York against the Agencies. Dkt. No. 149, pp. 1-2. Those eleven states seek a declaration that the Applicability Rule is unlawful. Id. The second New York action involves two environmental groups against the Agencies, arguing that the Applicability Rule is unlawful and seeking declaratory and injunctive relief. Id. ;

see Compl., N.Y. v. Pruitt, No. 1:18-cv-1030-JPO (S.D.N.Y. Feb. 7, 2018); Nat. Res. Def. Council, Inc. v. Envtl. Prot. Agency, No. 1:18-cv-1048-JPO (S.D.N.Y. Feb. 6, 2018). Several other environmental groups sued the Agencies in the District of South Carolina, challenging the legality of the Applicability Rule and requesting declaratory and injunctive relief. Dkt. No. 149; see Compl., S.C. Coastal Conservation...

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