Complaint filed in WOTUS Rule Challenge
Download PDF: NDCal-Complaint-Filed-2015-08-27.pdf
Introduction
- Water sustains all life on earth. Our nation’s rivers, streams, lakes, and wetlands provide food to eat and water to drink for millions of Americans; serve as habitat for scores of threatened or endangered species; and give the public aesthetic, recreational, commercial, and spiritual benefits too numerous to count. It is for the protection of these waters that congress passed the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251 et seq., commonly known as the Clean Water Act.
- n June 29, 2015, the United States Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”), acting by and through defendants Gina McCarthy and Jo-Ellen Darcy (collectively, the “Agencies”), published a final rule defining the phrase “waters of the United States” as used in the Clean Water Act, 33 U.S.C. § 1362(7). Clean Water Rule: Definition of ‘Waters of the United States’, 80 Fed. Reg. 37054 (June 29, 2015) (“Final Rule”). The Final Rule identifies those waters that are subject to the Clean Water Act’s critical safeguards; waters that do not meet the regulatory definition of “waters of the United States” will be unprotected as a matter of federal law, subject to myriad abuses by those who have long seen our nation’s waters as either a convenient means to dispose of waste and debris or as a resource to be dredged or filled to further their economic objectives.
- Plaintiffs are regional and national public-interest environmental organizations with a combined membership numbering hundreds of thousands of members nationwide. On behalf of these members, plaintiffs advocate for the protection of rivers, streams, lakes, and wetlands, and for the people and animal and plant species that depend on clean water.
- Plaintiffs support those portions of the Final Rule that maintain and clarify long- standing protections of tributary streams, wetlands, and other waters whose regulatory status has been thrown into doubt by a series of recent Supreme Court decisions on the scope of Clean Water Act jurisdiction; for this reason, plaintiffs do not seek vacatur of the Final Rule in its entirety. However, a number of key provisions of the rule are legally or scientifically indefensible, and must therefore be remanded to the Agencies. These flawed provisions impermissibly abandon waters that must be protected under the Clean Water Act as a matter of law; arbitrarily deviate from the best available science; or were promulgated without compliance with the Agencies’ notice and comment obligations. Moreover, the Agencies failed to comply with the National Environmental Policy Act’s procedural requirements, including the requirement to prepare a detailed Environmental Impact Statement assessing the impacts of the Final Rule.
- any of the defects of the Final Rule resulted from changes made by the Agencies in the final weeks before promulgation, well after members of the public and even the Corps’ most experienced and knowledgeable staff had an opportunity to participate in the rulemaking process. In the words of one senior Corps attorney, the Final Rule “contains several serious flaws” and abandoned “sound principles of science and law” that existed in the Agencies’ proposed Clean Water Rule (79 Fed. Reg. 22,188 (April 21, 2014)) (“Proposed Rule”). Memorandum from Lance Wood, Assistant Chief Counsel, Environmental Law and Regulatory Programs, U.S. Army Corps of Engineers, to Maj. Gen. John W. Peabody, Deputy Commanding General for Civil and Emergency Operations, U.S. Army Corps of Engineers, at 1 (April 24, 2015). As a result, certain portions of the Final Rule are “a textbook example of rulemaking that cannot withstand judicial review.” Id. at 5.
- By this complaint plaintiffs allege that the Agencies violated the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”) and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”) when they promulgated the Final Rule. Among other remedies, plaintiffs seek an order holding specific portions of the Final Rule unlawful and setting them aside because they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” or were promulgated “without observance if procedure required by law.” 5 U.S.C. § 706(2)(A), (D).
Download PDF: NDCal-Complaint-Filed-2015-08-27.pdf
