Georgia v. Wheeler

• Decision Date: 21 August 2019
• Docket Number: No. 2:15-cv-00079,2:15-cv-00079
• Citation: 418 F.Supp.3d 1336
• Parties: State of GEORGIA, et al., Plaintiffs, v. Andrew R. WHEELER, in his official capacity as Acting Administrator, U.S. Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

418 F.Supp.3d 1336

State of GEORGIA, et al., Plaintiffs,

v.Andrew R. WHEELER, in his official capacity as Acting Administrator, U.S. Environmental Protection Agency, et al., Defendants.

No. 2:15-cv-00079

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

Signed August 21, 2019

Andrew Alan Pinson, Office of the Attorney General, 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, Edmund Gerard LaCour, Jr., Pro Hac Vice, Alabama Attorney General's Office, Montgomery, AL, Jonathan A. Glogau, 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, Sarah Ellen Adkins, Pro Hac Vice, Sean J. Riley, Pro Hac Vice, Samuel R. Flynn, Pro Hac Vice, Kentucky Attorney General's Office, 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, Office of the Utah Attorney General, Salt Lake City, UT, Karla Z. Keckhaver, Pro Hac Vice, Misha Tseytlin, Wisconsin Department of Justice, Madison, WI, Andrew Jonathan Norton, Pro Hac Vice, Asher Paris Spiller, Pro Hac Vice, Craig A. Bromby, Pro Hac Vice, Sam M. Hayes, 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.

Andrew J. Doyle, Erica Zilioli, United States Department of Justice, Environmental Defense Section, Daniel Dertke, Jonathan D. Brightbill, Jessica O'Donnell, U.S. Dept. of Justice, Natural Resources Division, Washington, DC, John Thomas Clarkson, Jonathan Alan Porter, Otto Woelke Leithart, Patrick J. Schwedler, U.S. Attorney's Office, Savannah, GA, Martha Mann, Phillip R. Dupre, United States Department of Justice, Washington, DC, for Defendants.

ORDER

HON. LISA GODBEY WOOD, JUDGE

Before the Court is a challenge to a 2015 administrative regulation defining "waters of the United States" (hereinafter, the "WOTUS Rule") under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1344, 1362(7) (2018). Congress enacted the CWA in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a). To accomplish that goal, Congress implemented permitting requirements in the CWA for discharging pollutants into the nation's "navigable waters." Id. § 1311(a), § 1362(12), (14). Congress defined "navigable waters" to mean "the waters of the United States, including the territorial seas." Id. § 1362(7). To carry out the requirements of the CWA, Congress delegated authority under the Act to the administrators of the United States Environmental Protection Agency ("EPA") and the United States Army Corps of Engineers ("the Corps") (collectively "the Agencies"). See id. § 1361(a). The issues in this case are whether the Agencies extended their jurisdiction beyond the limits of the CWA, failed to adhere to the procedures of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), and violated the Constitution by promulgating the WOTUS Rule.

After analyzing the administrative record, and for the reasons explained below, the Court holds that the WOTUS Rule extends the Agencies' delegated authority beyond the limits of the CWA, and thus is not a permissible construction of the phrase "waters of the United States" within the statute, and that the Agencies' promulgation of the WOTUS Rule violates the APA's procedural requirements. Therefore, Plaintiffs' Motions for Summary Judgment, dkt. nos. 199, 203, are GRANTED . Intervenor Defendants' Motion, dkt. no. 211, is DENIED . The WOTUS Rule is hereby REMANDED to the Agencies for further proceedings consistent with this Order. Intervenor Plaintiffs' Motion to Amend the Court's Preliminary Injunction, dkt. no. 208, is DENIED at this time. The Court's Preliminary Injunction, dkt. no. 174, will REMAIN in place pending the outcome of the ongoing administrative proceedings regarding the WOTUS Rule.

BACKGROUND

Plaintiffs State of Georgia, State of West Virginia, State of Alabama, State of Florida, State of Kansas, Commonwealth of Kentucky, State of South Carolina, and State of Utah ("the States" or "State Plaintiffs")¹ filed the present lawsuit on June 30, 2015 against the administrators of the EPA and the Corps challenging the promulgation of a final agency rule defining the term "waters of the United States," Clean Water Rule: Definition of "Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015) (to be codified at 33 C.F.R. pt. 328), as used in the CWA, 33 U.S.C. §§ 1344, 1362(7). Dkt. No. 1. Since then, the State Plaintiffs have been joined by the American Farm Bureau Federation, American Forest & Paper Association, American Petroleum Institute, American Road and Transportation Builders Association, Georgia Association of Manufacturers, Georgia Farm Bureau Federation, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, National Stone, Sand, and Gravel Association, Public Lands Council, and U.S. Poultry & Egg Association (collectively "the Intervenor Plaintiffs") as intervening plaintiffs. Dkt. Nos. 178, 187. Because the Agencies have declined to defend the substantive challenges to the WOTUS Rule in this case, National Wildlife Federation and One Hundred Miles (collectively "the Intervenor Defendants") intervened to defend the substantive challenges. Dkt. Nos. 136, 182.

In this case, Plaintiffs claim that the WOTUS Rule should be vacated because it violates the CWA, 33 U.S.C. §§ 1344, 1362(7), the APA, 5 U.S.C. § 706(2)(A), as well as the Commerce Clause and Tenth Amendment of the U.S. Constitution, U.S. Const. art. I, § 8; U.S. Const. amend. X.

I. The CWA and the WOTUS Rule

As stated above, Congress enacted the CWA 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 CWA's principal tools for 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 of the Act in certain respects." Nat'l Ass'n of Mfrs. v. Dep't of Def., 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 waters obtain a permit. Id. (citing § 1311(a) ). The process of obtaining a permit can take years and cost hundreds of thousands of dollars, and discharging into "navigable waters" without a permit can subject the discharging party to 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. 37,054 at 37,057. The Agencies published the Proposed Rule on April 21, 2014, 79 Fed. Reg. 22,188, and then promulgated the Final Rule on June 29, 2015, 80 Fed Reg. 37,054. Under the WOTUS Rule, "waters of the United States" include "(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; [and] (3) The territorial seas" (collectively "primary waters"). 33 C.F.R. § 328.3(a)(1-3). The Rule also covers "(4) All impoundments of waters otherwise identified as waters of the United States under this section." Id. § 328.3(a)(4). The WOTUS Rule then adds three new categories of waters to the definition of waters of the United States—two that are per se jurisdictional and one that is jurisdictional on a case-by-case basis.

The first added category of waters is "tributaries." The Rule covers "[a]ll tributaries" of primary waters. Id. § 328.3(a)(3). The Rule defines tributaries as any water "that contributes flow, either directly or through another water" to a primary water "that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark" (hereinafter "OHWM"). Id. § 328.3(c)(3). The Rule declares for the first time that "remote sensing sources" or "mapping information" can be used to detect these "physical indicators." 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 [OHWM]" 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.

The second per se category is "adjacent waters." The Rule covers "[a]ll waters adjacent to" a primary water, an impoundment, or a tributary, "including wetlands, ponds, lakes, oxbows, impoundments, and similar waters." Id. § 328.3(a)(6). Under the Rule, "adjacent" means "bordering, contiguous or neighboring" primary waters, impoundments, or tributaries, even if they are separated from the primary water by man-made or natural barriers. Id. § 328.3(c)(1). The...