Case 1:20-cv-01063-RDB Document 1 Filed 04/27/20 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND
NORTHERN DIVISION
CHESAPEAKE BAY FOUNDATION,
INC.
6 Herndon Avenue
Annapolis, MD 21403
Anne Arundel County

)
)
)
)
)
)
and
)
)
SHORERIVERS
)
114 South Washington Street, Suite 301
)
Easton, MD 21601
)
Talbot County
)
)
Plaintiffs,
)
v.
)
)
ANDREW WHEELER, Administrator,
)
Environmental Protection Agency,
)
)
and
)
)
ENVIRONMENTAL
)
PROTECTION AGENCY
)
1200
Pennsylvania
Avenue,
N.W. )
Washington, DC 20460
)
)
and
)
)
RICKEY DALE “R.D.” JAMES,
)
Assistant Secretary of the Army (Civil Works) )
108 Army Pentagon
)
Washington, DC 20310
)
)
and
)
)
ARMY CORPS OF ENGINEERS
)
441 G Street NW
)
Washington, DC 20314
)
)
Defendants.
____________________________________

Case No. _______________

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COMPLAINT FOR DECLARATORY JUDGEMENT
1.

This action arises from the defendant agencies’ illegal regulatory efforts to rollback

protections for our nation’s waters, in conflict with the purpose and mandates of the Clean Water
Act. Definition of “Waters of the United States”—recodification of Pre-Existing Rules, 84 Fed.
Reg. 56,626 (Oct. 22, 2019) (“Final Repeal Rule”).
2.

Plaintiffs have also challenged the defendant agencies final rule—Navigable

Waters Protection Rule—in this court. The Navigable Waters Protection Rule: Definition of
“Waters of the United States”, 85 Fed. Reg. 22,250 (Apr. 21, 2020) (“Final Replacement Rule”).
The Agencies undertook a two-step process to repeal and replace the 2015 Clean Water Rule. First,
the Agencies issued the Final Repeal Rule, which repealed the 2015 Rule defining “waters of the
United States” and reinstated the 1986 regulations while the Agencies developed a new definition
of “waters of the United States.” Final Repeal Rule, 84 Fed. Reg. at 56,626–27. Second, the
Agencies issued a regulation to replace the 2015 Clean Water Rule with the Navigable Waters
Protection Rule, which would severely reduce the scope of the waters protected by the Clean Water
Act. Final Replacement Rule, 85 Fed. Reg. 22,251–52.
3.

While these two actions represent step one and two of a bifurcated process to repeal

and replace the 2015 Clean Water Rule, the regulatory records are distinct and the standards for
repealing an existing regulation and promulgating a new regulation differ. For clarity, Plaintiffs
have filed two separate complaints and intend to develop separate records for review but are
amenable to coordinating future filing deadlines and motions practice between the two matters to
conserve judicial resources.
4.

The purpose of the Clean Water Act is to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The statute aims to
accomplish this by prohibiting the discharge of pollutants, including dredge and fill material, into
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navigable waters without a permit to do so. 33 U.S.C. §§ 1311(a); 1342, 1344, 1362(12). The Act
defines “navigable waters” as “the waters of the United States, including the territorial seas.” Id.
at § 1362(7). But the statute does not define “waters of the United States,” which has led to decades
long efforts from the executive and judicial branches to clarify the definition, culminating in the
2015 Clean Water Rule. Clean Water Rule: Definition of “Waters of the United States”, 80 Fed.
Reg. 37,054 (June 29, 2015) (“Clean Water Rule”).
5.

The Clean Water Rule delineated waters to be protected by the Clean Water Act, in

order to “increase [Clean Water Act] program predictability and consistency by clarifying the
scope of ‘waters of the United States’ protected under the Act.” Clean Water Rule, 80 Fed. Reg.
at 37,054. The Clean Water Rule established that the statute covers wetlands and tributaries “that
require protection in order to restore and maintain the chemical, physical, or biological integrity
of traditional navigable waters” in such a way that limited the case-by-case analyses the agencies
exercised prior to the Clean Water Rule. Id. at 37,055.
6.

The Chesapeake Bay is a waterbody that will not be restored if its wetlands and

tributaries are not protected under the Clean Water Act. The Final Repeal Rule, by reverting
jurisdiction to the regulations existing in 1986, will ensure that the Bay is not restored.
7.
treasure.

The Chesapeake Bay is the nation’s largest estuary and has been declared a national
Chesapeake

Bay

Watershed

Agreement

1

(2014),

https://www.chesapeakebay.net/documents/FINAL_Ches_Bay_Watershed_Agreement.withsigna
tures-HIres.pdf (last visited Apr. 20, 2020) (“Chesapeake Bay Watershed Agreement”). The Bay
receives half of its water from an intricate network of hundreds of thousands of creeks, headwater
streams, and rivers, and 1.5 million acres of wetlands, many of which are non-navigable tributaries,
non-tidal wetlands, and ephemeral and intermittent streams. Chesapeake Bay Program, Facts and

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Figures, https://www.chesapeakebay.net/discover/facts (last visited Apr. 20, 2020); Chesapeake
Bay Program, Watershed’s Non-tidal Wetlands Provide a Multitude of Benefits to the Bay,
https://www.chesapeakebay.net/news/article/watersheds_non_tidal_wetlands_provide_a_multitu
de_of_benefits_to_the_bay (last visited Apr. 24, 2020). Restoration of the Chesapeake Bay—as
well as waters across the country—depends on a definition of “waters of the United States” that
affords protection in broad terms, and the removal of headwater streams and upland wetlands from
Clean Water Act coverage harms that restoration.
8.

The Chesapeake Bay has long been polluted by excess nutrients entering the Bay’s

tributary rivers, streams, and wetlands. Excess nitrogen, phosphorus, and sediment lead to an
overabundance of algae, known as algal blooms. Algal blooms in combination with sediment block
sunlight from reaching underwater grasses that serve as food and habitat for many Bay species.
Once algal blooms begin to decay, the decomposition process robs the Bay of oxygen, leading to
hypoxic (low oxygen) and anoxic (no oxygen) conditions in the Bay. In these low oxygen
conditions, many species of commercially valuable fish and crustaceans cannot survive.
9.

To restore the Chesapeake Bay, the EPA issued the Chesapeake Bay Total

Maximum Daily Load (“Bay TMDL”) on December 29, 2010. The Bay TMDL was created under
the Clean Water Act by the EPA and the Bay jurisdictions of Maryland, Virginia, Pennsylvania,
Delaware, New York, West Virginia, and the District of Columbia to reduce the amount of
pollutants entering the Bay and its tributaries. Clean Water Act Section 303(d): Notice for the
Establishment of the Total Maximum Daily Load for the Chesapeake Bay, 76 Fed. Reg. 549 (Jan.
5, 2011). The Bay TMDL set watershed wide limits on the amount of nitrogen, phosphorus, and
sediment that could enter the Bay and its tributaries while still meeting the water quality standards
set for the Chesapeake Bay. See EPA, Chesapeake Bay Total Maximum Daily Load for Nitrogen,

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Phosphorus, and Sediment

(Dec. 29, 2010),

https://www.epa.gov/chesapeake-bay-

tmdl/chesapeake-bay-tmdl-document [herein after “Bay TMDL”]; Bay TMDL Executive
Summary,

ES-1,

https://www.epa.gov/sites/production/files/2014-

12/documents/bay_tmdl_executive_summary_final_12.29.10_final_1.pdf. It is CBF’s mission to
save the Chesapeake Bay, by defending the Bay TMDL and ensuring compliance with its terms
through state Watershed Implementation Plans (together the Blueprint).
10.

To create the Chesapeake Bay TMDL, the entire Chesapeake Bay watershed was

divided into 92 individual segments with assigned waste load allocations and load allocations. Bay
TMDL, ES-3; Chapter 9: Chesapeake Bay TMDLs (providing the nutrient limits for each of the
92

segment

TMDLS),

https://www.epa.gov/sites/production/files/2014-

12/documents/bay_tmdl_executive_summary_final_12.29.10_final_1.pdf; Appendices Q and R
(More detailed LAs and WLAs are provided in Appendix Q for annual TMDLs and in Appendix
R

for

daily

TMDLs),

https://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-

appendices. Waste load allocations are numeric pollutant limits assigned to a specific body of water
for pollution coming from point sources, i.e. discrete conveyances of pollutants from permitted
entities like waste water treatment plants, municipal separate storm sewer system (“MS4”) permits,
National Pollution Discharge Elimination System (“NPDES”) permits, and dredge and fill permits.
40 C.F.R. § 130.2(h). Load allocations are numeric pollutant limits assigned to nonpoint sources
of pollutants, namely agricultural and stormwater runoff. 40 C.F.R. § 130.2(g). Meeting the waste
load allocations and load allocations for each of the 92 segments is essential to the recovery of the
Chesapeake Bay and achieving the Bay TMDL. Removing headwater streams and adjacent
wetlands from coverage under the Clean Water Act also removes those waters from coverage under

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the TMDL, which lessens the ability of the Bay jurisdictions to meet the requirements of the Bay
TMDL.
11.

The permitting provisions of the Clean Water Act are key to achieving the goals of

the Bay TMDL, and the repeal of the 2015 Clean Water Rule reduces the number of water bodies
protected by the permitting sections of the Act. For example, the 2015 Clean Water Rule expressly
protected tributaries to rivers as jurisdictional waters, and extended protections to Delmarva Bays
(seasonal freshwater wetlands) and pocosins (a wetland bog with sandy, peat soil) that have a
significant nexus to navigable waters. Clean Water Rule, 80 Fed. Reg. at 37,071. Thousands of
Delmarva Bays and pocosins dot the Delaware, Maryland, and Virginia peninsula. By repealing
the 2015 Clean Water Rule, a pollution discharger would no longer need a permit to release
pollutants into or dredge and fill these waters. As a result, the area of the watershed covered by
discharge permits will be greatly reduced, leading to more harmful pollution entering the Bay and
its tributaries, which impacts the success of the Blueprint.
12.

The 2014 Chesapeake Bay Watershed Agreement, a multi-state agreement signed

by the watershed jurisdictions and federal agencies, recommitted the Bay jurisdictions and EPA to
meeting the goals of the Bay TMDL. See Chesapeake Bay Watershed Agreement, at 16. The
Chesapeake Bay Watershed Agreement identifies wetlands as habitat to be protected: the Vital
Habitats goal directs the creation or reestablishment of 85,000 acres of tidal and non-tidal wetlands
and enhancing the function of an additional 150,000 acres of degraded wetlands by 2025. Id. at 5.
The Healthy Watersheds goal also recognizes that many small watershed—likely comprised of
headwater streams and healthy wetlands—are currently healthy but “at risk of degradation as the
demand for local lands and resources increases.” Id. at 9. The Chesapeake Bay Agreement directs
that “100 percent of state-identified currently healthy waters and watersheds remain healthy.” Id.

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The repeal of the Clean Water Rule will hinder the achievability of the Chesapeake Bay
Agreement.
13.

The Agencies arbitrarily repealed the Clean Water Rule, contrary to the plain

language of the Clean Water Act, the legislative history, and the case law interpreting the Act.
14.

The Agencies repeal of the Clean Water Rule violates the Administrative Procedure

Act, as the Agencies have not supported their decision with a reasoned explanation.
15.

Further, the Agencies rejected the extensive record developed to support the Clean

Water Rule, including the Connectivity Report, without justification or support based in the repeal
record. EPA, Connectivity of Streams and Wetlands to Downstream Waters: A Review and
Synthesis of the Scientific Evidence (2013) (hereinafter “Connectivity Report”),
16.

Therefore, Chesapeake Bay Foundation, Inc. and ShoreRivers jointly request this

court to vacate the Final Repeal Rule, as its issuance was arbitrary, capricious, an abuse of
discretion and not in accordance with the law. 5 U.S.C. § 706(2)(A).
JURISDICTION AND VENUE
17.

This action is brought pursuant to the judicial review provisions of the

Administrative Procedure Act, 5 U.S.C. §§701-706, which waive the defendant’s sovereign
immunity. This Court has jurisdiction over the plaintiff’s claims under 28 U.S.C. § 1331 (federal
question) and may issue a declaratory judgement and further relief pursuant to 5 U.S.C. § 706 and
28 U.S.C. §§2201 and 2202.
18.

Venue is proper in this District under 28 U.S.C. § 1391(e)(1) and local rules because

plaintiffs Chesapeake Bay Foundation and ShoreRivers reside within this District.

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PLAINTIFFS
19.

The plaintiff organizations in this case, as well as their members, are committed to

protecting “the chemical, physical, and biological integrity of the Nation’s waters[,]” specifically
the Chesapeake Bay and the tributaries and wetlands in the watershed. 33 U.S.C. § 1251(a).
20.

Plaintiff Chesapeake Bay Foundation, Inc. (CBF) is a 501(c)(3) non-profit

organization committed to saving the Bay and keeping it saved, through the implementation of the
Chesapeake Bay TMDL. CBF represents more than 300,000 members and e-subscribers across
the country, and has offices in Annapolis and Easton, Maryland; Richmond and Virginia Beach,
Virginia; Harrisburg, Pennsylvania; and the District of Columbia. For over 50 years, CBF has been
working to restore the Chesapeake Bay and its tributary rivers and streams. CBF scientists and
legal staff monitor the administration of the Clean Water Act as it relates to the health of the
Chesapeake Bay.
21.

CBF and local stakeholders sued EPA to require the agency to develop the

Chesapeake Bay TMDL. Fowler v. EPA, No. 1:09-C-00005-CKK, 2009 U.S. Dist. LEXIS 132084
(D.D.C. 2009). This matter resulted in a settlement agreement with the United States requiring
EPA to, among other things, issue the Chesapeake Bay Total Maximum Daily Load by December
31, 2010.
22.

CBF participated extensively in the development of the Chesapeake Bay TMDL

and the Bay jurisdictions’ Watershed Implementation Plans—collectively the Chesapeake Bay
Clean Water Blueprint. The TMDL required the Bay jurisdictions to develop watershed
implementation plans that explained how the jurisdictions would meet the waste load and load
allocations established in the TMDL. See supra ¶¶ 9-10. CBF continues to participate in efforts to
implement and refine the Blueprint throughout the Bay watershed. The Blueprint presents the best

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example of cooperative federalism working towards the goal of restoring the Bay. However, the
Blueprint goals will only be met if the Clean Water Act is properly interpreted and enforced, not
weakened. Because jurisdiction under the Act is governed by federal regulations, the repeal of the
Clean Water Rule harms the interests of CBF and its members.
23.

CBF as an organization is harmed by the repeal of the Clean Water Rule. CBF has

spent millions of dollars restoring waterways; advocating at the local, state, and federal level for
clean water protections; educating students and teachers about the value of the Chesapeake Bay
and its tributaries; and filing legal actions in state and federal courts in support of water quality
protections and the preservation of wetlands. The Clean Water Rule specifically identified certain
waters found within the Bay watershed, e.g., headwater and ephemeral streams, Delmarva Bays
and pocosins, and wetlands as covered by the Clean Water Act. Rescission of the Clean Water
Rule removes these waterbodies from Clean Water Act jurisdiction and subjects them to possible
destruction or degradation. Rescission of the Clean Water Rule will therefore harm water quality
in the Chesapeake Bay.
24.

CBF operates its Education Department throughout the watershed, taking students

and teachers on trips to immerse classes in Bay ecology, and learn about the threats facing its
recovery. CBF spends over $4 million a year on education programming throughout the Bay
watershed. CBF educators lead students and teachers on trips in wetlands areas, headwater streams,
and other seasonal waters and wetlands to investigate macroinvertebrates and conduct water
quality sampling. Polluted waters significantly affect the efficacy of these education trips. When
waters are polluted, educators and students limit contact with the water, thereby hampering the
ability of students to investigate a given waterbody. Reducing the scope of the Clean Water Act’s

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jurisdiction harms CBF’s education department. The potential for increased pollution resulting
from this rule will hamper CBF’s education programming and its use of local waterways.
25.

The activities of CBF’s Environmental Protection and Restoration Department are

also harmed by the repeal of the Clean Water Rule. CBF conducts extensive restoration projects
throughout the Bay watershed, included tree plantings to create streamside buffers and wetlands
restoration projects. These restoration programs cost over a million dollars a year. Many of these
stream plantings occur in areas where streams run through farms. These restoration efforts will be
negatively impacted if waterbodies lose protection under the Clean Water Act. Restoration projects
will become less effective if the surrounding water bodies are polluted. Decisions over where to
install best management practices (or “BMPs”) and other restoration projects may change if waters
bodies are no longer protected by the Clean Water Act.
26.

CBF works across the watershed restoring wetlands and ephemeral or intermittent

streams to reduce pollution entering the Bay’s tributaries. For example, CBF restored wetlands on
the Old Naval Academy dairy farm in Odenton, Maryland, which improved the ability of the
wetlands to filter sediment and nutrient pollution and reduce erosive runoff velocities. CBF
members and volunteers participated with CBF staff in planting vegetation associated with this
project.
27.

In Virginia, CBF is working with a farm in Augusta County to remove livestock

from a spring branch that originates on the property and all the surface water flowing through the
property. CBF is providing financial assistance for the project through the South River/ Christians
Creek 319 TMDL program. This program will provide a well, watering system for the livestock,
and will install a fencing to remove livestock access from all surface water. In total, this project
will restore 6.8 acres of riparian forested buffer.

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28.

CBF has been working since 2018 on a farm in Winchester, Virginia to help

implement a Conservation Plan. With financial help from CBF, the farm is now installing a system
of fences and water supply features that will allow them to raise animals without allowing their
livestock to access the farm’s streams and wetlands. When completed, their new system of BMPs
will help protect 13 acres of wetlands and headwater stream riparian buffers.
29.

The repeal of the Clean Water Rule harms CBF’s restoration work by weakening

protections for wetlands and ephemeral streams, thereby threatening the efficacy of restoration
projects across the Bay watershed.
30.

CBF members will be harmed if the repeal of the Clean Water Rule is upheld.

CBF’s members from across the country live near and recreate in waters of the United States and
their tributaries or nearby wetlands. CBF members enjoy swimming, kayaking, boating, sailing,
fishing, crabbing, bird watching, and other aesthetic and recreational pursuits in the waters of the
Bays and its rivers and streams. Some of these members own property with waters that will no
longer be protected by the Clean Water Act. These members are fearful that the decision to remove
protections for local waterways, including tributary streams and wetlands, will lead to increased
pollution in these waterways. The Final Repeal Rule therefore harms their use and interest in the
Bay’s waters.
31.

The Bay is an economic engine in the region, supporting robust fishing and

aquaculture industries, as well as recreation and tourism industries. A compromised Bay threatens
the health of those industries, and the members who rely on those industries for their income.
32.

Plaintiff ShoreRivers is a 501(c)(3) non-profit organization whose mission is to

protect and restore Eastern Shore waterways through science-based advocacy, restoration, and
education. ShoreRivers is headquartered in Easton, Maryland. ShoreRivers represents more than

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3,500 members and supporters across the Eastern Shore. ShoreRivers has a dedicated staff of
educators, scientists, restoration specialists, and advocates that focus on policies and projects that
improve the health of rivers on the Delmarva peninsula. ShoreRivers staff includes four
Riverkeepers who regularly patrol and monitor waterways in the Eastern Shore: the Chester
Riverkeeper, the Choptank Riverkeeper, the Miles/Wye Riverkeeper, and the Sassafras
Riverkeeper.
33.

ShoreRivers conducts extensive restoration work across the Delmarva peninsula in

order to reduce the pollution entering local waterbodies. As of 2019, ShoreRivers installed 131
pollution reduction projects across the Eastern Shore. These restoration projects are aimed at
reducing the amount of sediment and nutrients entering waterways on the Delmarva peninsula,
and are threatened by the weakening of the Clean Water Act’s protections. The repeal of the Clean
Water Rule will harm ShoreRivers and its efforts to restore local waterways on the Delmarva
Peninsula.
34.

ShoreRivers’ members are harmed by the repeal of the Clean Water Rule. These

members enjoy swimming, kayaking, boating, sailing, fishing, crabbing, bird watching, and other
aesthetic and recreational pursuits in rivers, streams and wetlands on the Delmarva Peninsula that
will be impacted by the repeal rule. Members also own property with streams and wetlands at risk
of losing protection under the Clean Water Act and are concerned that pollution upstream may
harm water quality on their property. Members also rely on clean water for their livelihood,
through aquaculture operations on the Eastern Shore. These endeavors are threatened by the
removal of streams and wetlands from Clean Water Act protections and the resulting negative
effects on downstream water quality.

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35.

ShoreRivers’ members participate in water quality monitoring on all four of the

major rivers on the Eastern Shore—the Chester, Choptank, Miles/Wye, and Sassafras rivers and
their creeks and tributary streams—as part of an extensive army of volunteer citizen scientists.
ShoreRivers’ members care about local water quality and are harmed by the decision to remove
protections for local waterways, including tributary streams and wetlands.
DEFENDANTS
36.

Defendant Andrew Wheeler, signer of the repeal of the Clean Water Rule, is sued

in his official capacity as the Administrator of the United States Environmental Protection Agency.
37.

Defendant United States Environmental Protection Agency (“EPA”) is the federal

agency charged with implementing the majority of the Clean Water Act. The mission of the EPA
is to protect human health and the environment. The EPA should work to ensure that “Americans
have clean air, land and water; … efforts to reduce environmental risks are based on the best
available scientific information; [and f]ederal laws protecting human health and the environment
are administered and enforced fairly, effectively and as Congress intended[.]” EPA, Our Mission
and What We Do, https://www.epa.gov/aboutepa/our-mission-and-what-we-do (last visited Dec.
12, 2019). The EPA is a signatory to the Chesapeake Bay Watershed Agreement, issued the
Chesapeake Bay TMDL, and is responsible for its oversight and implementation. 33 U.S.C. §
1267(g).
38.

Defendant Rickey Dale “R.D.” James, who signed the repeal of the Clean Water

Rule for the United States Army Corps of Engineers, is sued in his official capacity as Assistant
Secretary of the Army (Civil Works).
39.

Defendant United States Army Corps of Engineers (“Corps”) is the federal agency

responsible for the implementation of Section 404 of the Clean Water Act—the permit program
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for the discharge of dredged and fill material in the waters of the United States. 33 U.S.C. §
1344(a). The Corps is housed within the United States Army, as part of the United States
Department of Defense. The Corps is subject to the Chesapeake Bay TMDL pursuant to Executive
Order 13508 and is a signatory of the Chesapeake Bay Watershed Agreement.
BACKGROUND
40.

For decades prior to the Clean Water Act, despite Congressional efforts, our waters

were a dumping ground for waste. In 1972, Congress passed the Clean Water Act, a comprehensive
water protection statute “to restore and maintain the chemical, physical, and biological integrity of
the Nation’s waters.” 33 U.S.C. § 1251(a).
41.

Key to the implementation of the Clean Water Act is the prohibition of discharging

pollutants into navigable waters or dredging and filling wetlands without a permit to do so. 33
U.S.C. §§ 1342, 1344.
42.

The Act defines “navigable waters” as the “waters of the United States, including

the territorial seas.” 33 U.S.C. § 1362(7). But the Act does not define “waters of the United States.”
The long-standing definition of “navigable waters” before the 1972 Clean Water Act included only
waters that are navigable in fact, meaning the waters are “used, or … susceptible of being used, in
their ordinary condition, as highways for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water.” The Daniel Ball, 77 U.S. 557,
563 (1870).
43.

The legislative history of the Clean Water Act illustrates that Congress intended the

definition of navigable waters to be broader than the existing definition established by The Daniel
Ball based solely on navigability. See United States v. Riverside Bayview Homes, 474 U.S. 121,
132–33 (1985). According to the Supreme Court,
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Protection of aquatic ecosystems, Congress recognized, demanded broad federal
authority to control pollution, for ‘[water] moves in hydrologic cycles and it is
essential that the discharge of pollutants be controlled at the source.’ S. Rep. No.
92-414, p. 77 (1972). In keeping with these views, Congress chose to define the
waters covered by the Act broadly. … the Act’s definition of ‘navigable waters’ as
‘the waters of the United States’ makes it clear that the term ‘navigable’ as used in
the Act is of limited import. … Congress evidently intended to repudiate limits that
had been placed on federal regulation by earlier water pollution control statutes and
to exercise its powers under the Commerce Clause to regulate at least some waters
that would not be deemed ‘navigable’ under the classical understanding of the term.
See S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 (1972)
(statement of Rep. Dingell).
Id.
Rapanos and Regulatory Uncertainty
44.

Despite the broad definition intended by Congress, the definition of “waters of the

United States” repeatedly came before the courts as the Agencies attempted to implement the Clean
Water Act permitting programs.
45.

The Supreme Court most recently considered the definition of the term “waters of

the United States” in Rapanos v. United States, 547 U.S. 715 (2006). There, the Court was asked
to determine whether non-navigable wetlands lying near drains or ditches that eventually emptied
into traditional navigable waters constituted “waters of the United States.” Id. at 729. The justices
failed to come to an agreement, which resulted in the Court issuing a plurality opinion.
46.

In the plurality opinion, Justice Scalia proffered an interpretation of the Clean

Water Act that would only protect “relatively permanent, standing or continuously flowing bodies
of water ‘forming geographic features’ that are described in ordinary parlance as streams, oceans,
rivers, and lakes.” Id. at 739 (internal quotations and alterations omitted). Justice Scalia’s
interpretation of “waters of the United States” would not include “channels through which waters
flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Id. Justice Scalia went on to explain “wetlands with a continuous surface connection to bodies that
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are ‘waters of the United States’ in their own right, so that there is no clear demarcation between
‘waters’ and wetlands” would be considered jurisdictional under the Act. Id. at 739, 742. However,
this narrow reading of the Act was rejected by five members of the Court, so it is not controlling.
47.

In a concurring opinion, Justice Kennedy concluded that wetlands are “waters of

the United States” if the wetlands, “either alone or in combination with similarly situated lands in
the region, significantly affect the chemical, physical, and biological integrity of other covered
waters more readily understood as ‘navigable.’” Id. at 780. Justice Kennedy clarified that if the
“wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly
encompassed by the statutory term ‘navigable waters.’” Id. Justice Kennedy’s decision came to
be known as the “significant nexus” test.
48.

In the dissenting opinion, Justice Stevens would have conferred jurisdiction over

the wetlands under the existing interpretation or using Justice Kennedy’s significant nexus test but
dissented on the grounds that the existing interpretation in United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121 (1985) controlled. Id. at 792, 808. Justice Kennedy’s significant nexus
test has therefore been viewed as the governing opinion to determine jurisdiction under the Clean
Water Act.
49.

Importantly, Justice Roberts remarked in a concurring opinion that “no opinion

command[ed] a majority of the Court on how precisely to read Congress’ limits on the reach of
the Clean Water Act.” Id. at 758. This necessitated clarification from the Agencies, attempted first
through guidance, and then, the 2015 Clean Water Rule.
50.

In the wake of the Rapanos decision, the Agencies issued a guidance memorandum

to instruct the regional offices of the agencies on the implementation of the Rapanos decision when
asserting jurisdiction over waters of the United States. See EPA and Corps, Clean Water Act

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Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States &
Carabell

v.

United

States,

https://www.epa.gov/sites/production/files/2016-

04/documents/rapanosguidance6507.pdf (last visited Apr. 20, 2020). The memorandum stated that
the agencies would assert jurisdiction over traditional navigable waters, wetlands adjacent to
traditional navigable waters, relatively permanent non-navigable tributaries of traditional
navigable waters, and wetlands that abut non-navigable tributaries. Id. at 1. The agencies would
undertake a significant nexus analysis to determine jurisdiction of non-navigable tributaries that
are not relatively permanent, wetlands adjacent to non-navigable tributaries that are not relatively
permanent, and wetlands adjacent to but that do not directly abut a relatively permanent nonnavigable tributary. Id.
51.

While the Agencies provided guidance on the implementation of the Clean Water

Act post-Rapanos, the interpretation of “waters of the United States” was still uncertain. The
guidance document was expressly not a regulation, furthering the need for the Agencies to
promulgate binding regulations defining “waters of the United States.”
The Clean Water Rule
52.

In response to the Rapanos decision and the resulting guidance, the Agencies

developed the Clean Water Rule. On April 21, 2014, the Agencies published a proposed rule to
define “waters of the United States.” Proposed Rule, Definition of “Waters of the United States”
Under the Clean Water Act, 79 Fed. Reg. 22,188 (Apr. 21, 2014). The Agencies proposed to define
certain waters as jurisdictional, which included tributaries and adjacent wetlands to traditionally
navigable waters. Id at 22,188–89. Additionally, the Agencies proposed a smaller “other waters”
category, which would undergo a case-specific analysis to determine if there was a significant
nexus to traditionally navigable waters. Id. at 22,189.
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53.

The Agencies supported their proposed rule with extensive science. The Agencies

reviewed over a thousand peer-reviewed scientific papers that addressed the connectivity of
aquatic resources and effects on downstream waters, in order to understand whether a significant
nexus exists. Id. at 22,222. The resulting report, Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence, underwent extensive peer
review and public comment, including review by EPA’s Scientific Advisory Board. Id. at 22,222.
54.

The Connectivity Report came to a series of conclusions that served as the scientific

underpinnings for the Clean Water Rule. First, streams and intermittent waters have a strong
influence on the character and function on downstream waters. Id. at 22,222; Connectivity Report,
at ES-2. In the proposed rule, the EPA found that “all tributary streams, including perennial,
intermittent, and ephemeral streams, are chemically, physically, and biologically connected to
downstream rivers via channels and associated alluvial deposits where water and other materials
are concentrated, mixed, transformed, and transported.” 79 Fed. Reg. at 22,222 (emphasis added).
Second, EPA found that wetlands and open waters in riparian areas and floodplains “are
chemically, physically, and biologically connected with rivers” and contribute to transport of
organic matter, removal of excess nutrients, provide nursery habitat, and serve as sinks that retain
floodwaters, sediment, nutrients, and contaminants that would otherwise harm downstream water
quality. Id. at 22,223. Third, wetlands not in floodplains (vernal pools, prairie potholes, playa
lakes) benefit downstream water quality through floodwater storage, nutrient retention and
transformation, and groundwater recharge. Id.
55.

Relying on the extensive scientific evidence developed during the rulemaking

process, the Agencies finalized the Clean Water Rule on June 29, 2015. The Clean Water Rule
established three categories of waters to determine coverage under the Clean Water Act: (1) waters

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that are jurisdictional in all instances, (2) waters that are never jurisdictional, and (3) other waters
that are only jurisdictional if there is a significant nexus to a jurisdictional water. Clean Water
Rule, 80 Fed. Reg. at 37,058–59.
56.

The Clean Water Rule defined jurisdictional waters, consistent with Rapanos, to

include traditionally navigable waters, interstate waters, and territorial seas, along with
impoundments of such waters. Id. at 37,057–58. Tributaries were also included as jurisdictional
where they contribute to flow of a primary water with a bed, banks, and an ordinary high-water
mark. Id. at 37,058. Tributaries were included because those waters “play an important role in the
transport of water, sediments, organic matter, nutrients, and organisms to downstream waters.” Id.
The Clean Water Rule also included waters adjacent to jurisdictional waters—wetlands, ponds,
lakes, oxbows, and similar waters—as jurisdictional. Id. The Agencies established a geographic
distance marker to establish the boundary of adjacent waters covered under the Clean Water Rule.
Id.
57.

The Clean Water Rule defined a narrow category of other waters that would be

subject to a case-specific analysis to determine jurisdiction. The Agencies identified five “types of
waters in specific regions that science demonstrates should be subject to a significant nexus
analysis and are considered similarly situated by rule because they function alike and are
sufficiently close to function together in affecting downstream waters.” Id. at 37,059. These
waters—Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in
California, and Texas coastal prairie wetlands—are analyzed collectively in the watershed that
drains to the nearest jurisdictional water. The Clean Water Rule recognized that these features
constituted “similarly situated” waters, and their impact on downstream waters must be determined
collectively, not individually. Id. The “other waters” category included waters that are not

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categorically protected but are located within the 100-year flood plain of a primary water or within
4,000 feet of the high-tide line or ordinary high-water mark of a primary water, impoundment, or
tributary. Id. These waters were also subject to a significant nexus analysis to determine
jurisdiction under the Clean Water Act.
58.

The Agencies also clarified the waters that are expressly excluded from jurisdiction.

Id. The Clean Water Rule expanded the waters not covered under the Clean Water Act, namely
excluding ditches and artificial waters, as well as erosional features. Id. The Clean Water Rule
maintained all prior exclusions from earlier regulations—converted cropland, waste treatment
systems, stormwater control features—and codified exclusions that had been applied as a matter
of agency practice. Id.
59.

Through the development of the Connectivity Report and the proposed rule, the

Agencies engaged in an extensive public comment process. From the publication of the proposed
rule, the Agencies recognized that “developing a final rule to provide the intended level of certainty
and predictability, and minimizing the number of case-specific determinations, will require
significant public involvement and engagement.” Proposed Clean Water Rule, 79 Fed. Reg. at
22,188. To that end, the Agencies solicited public comment on the proposed rule for more than
200 days. Clean Water Rule, 80 Fed. Reg. at 37,057. The Clean Water Rule
reflect[ed] the over 1 million public comments on the proposal, the substantial
majority of which supported the proposed rule, as well as input provided through
the agencies’ extensive public outreach effort, which included over 400 meetings
nationwide with states, small businesses, farmers, academics, miners, energy
companies, counties, municipalities, environmental organizations, other federal
agencies, and many others.
Id.
60.

In total, the Clean Water Rule was developed through extensive public comments,

grounded in peer-reviewed science that established the relationship between streams, wetlands,
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and tributaries and traditionally navigable waters. In repealing the Clean Water Rule, the Agencies
failed to consider the well-developed record or engage in any meaningful review of the public
comments.
The Repeal of the Clean Water Rule
61.

Efforts to repeal the Clean Water Rule began on February 28, 2017, when President

Trump issued an Executive Order titled “Restoring the Rule of Law, Federalism, and Economic
Growth by Reviewing the ‘Waters of the United States’ Rule. Exec. Order No. 13,778, 82 Fed.
Reg. 12,497 (Feb. 28, 2017). The Executive Order directed the EPA and Corps to review the Clean
Water Rule for consistency with the Administration’s policy to promote economic growth,
minimize regulatory uncertainty, and show due regard for the roles of Congress and the States. Id.
at §§ 1, 2(a). Pursuant to that policy, the Agencies were ordered to “publish for notice and comment
a proposed rule rescinding or revising the rule, as appropriate and consistent with law.” Id. at §
2(a). Further, the Executive Order instructed the Agencies to “consider interpreting the term
‘navigable waters,’ as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of
Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006)”—despite the fact that
Justice Scalia’s opinion was rejected by a majority of the Supreme Court and has not been followed
by the Agencies when interpreting “waters of the United States. Id. at § 3. This executive fiat began
the process to repeal the Clean Water Rule, in violation of the Administrative Procedure Act.
62.

Only a few months after the Executive Order, the Agencies determined repeal was

appropriate, and issued a proposed rule to repeal the Clean Water Rule. Proposed Rule, Definition
of “Waters of the United States”-Recodification of Pre-Existing Rules, 82 Fed. Reg. 34,899 (July
27, 2017). The Proposed Rule stated the repeal of the Clean Water Rule was the first step in a twostep rulemaking process and in the interim, the Agencies proposed to recodify the regulations
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existing before the Clean Water Rule. Id. In practical terms, this means that once the Clean Water
Rule was repealed, the Agencies would then operate on the same case-by-case basis that created
the inconsistencies which lead to the development of the Clean Water Rule. Only in the second
step of the rulemaking process, which had not happened when the proposed rule was published,
would the Agencies redefine “waters of the United States” consistent with Justice Scalia’s opinion
in Rapanos. Id. at 34,902.
63.

In the proposed repeal rule, the Agencies stated that they “do not intend to engage

in substantive reevaluation of the definition of ‘waters of the United States’ until the second step
of the rulemaking.” Id. at 34,903. As a result, the Agencies solicited comments from the public not
on the issue of whether repeal was appropriate, but whether “it is desirable and appropriate to recodify in regulation the status quo as an interim first step pending a substantive rulemaking to
reconsider the definition of ‘waters of the United States’ and the best way to accomplish it.” Id.
The Agencies framed their decision to repeal the Clean Water Rule as maintaining the status quo
by painting their action as simply re-codifying the pre-existing regulations, and therefore limited
the scope of comments from the public. Id.
64.

Critically, in the Proposed Rule, the Agencies did nothing to acknowledge the well-

developed record supporting the Clean Water Rule. The only document produced to support the
repeal was an economic report that directly conflicted with the economic analysis developed under
the Clean Water Rule, which the Agencies then abandoned later in the rulemaking process. See
Supplemental Notice of Proposed Rulemaking, Definition of “Waters of the United States”–
Recodification of Preexisting Rule, 83 Fed. Reg. 32,227, 32,250 (July 12, 2018). The Agencies
provided no studies that refuted the findings of the Connectivity Report, or the 1 million public

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comments received in support of the Clean Water Rule. See Clean Water Rule, 80 Fed. Reg, at
37,057.
65.

Nearly a year after issuing the Proposed Rule, the Agencies issued a supplemental

notice of proposed rulemaking. Supplemental Notice of Proposed Rulemaking, Definition of
“Waters of the United States”–Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12,
2018). The stated intent of the supplemental rulemaking was to “clarify, supplement, and give
interested parties an opportunity to comment on certain important considerations and reasons for
the agencies’ proposal.” Id.
66.

In total, the Agencies received over 770,000 comments on the Proposed Rule to

repeal the Clean Water Rule. Final Repeal Rule, 84 Fed. Reg. at 56,626. The majority of the
comments submitted on the repeal of the Clean Water Rule advocated to retain the Clean Water
Rule.
67.

Finally, on October 22, 2019, the Agencies issued the Final Rule repealing the

Clean Water Rule. Final Rule, Definition of “Waters of the United States”—Recodification of PreExisting Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019). For the first time in the Final Repeal Rule,
the Agencies articulated four reasons for repealing the Clean Water Rule.
68.

First, the Agencies determined “that the 2015 Rule did not implement the legal

limits on the scope of the agencies’ authority under the Clean Water Act … as intended by
Congress and reflected in Supreme Court cases, including Justice Kennedy’s articulation of the
significant nexus test in Rapanos.” Id.
69.

Second, the Agencies concluded that “in promulgating the 2015 Rule the agencies

failed to consider and accord due weight the policy” of the Clean Water Act section 101(b) to

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“recognize, preserve, and protect the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution[.]” Id.; see 33 U.S.C. §1251(b).
70.

Third, the Agencies concluded that the repeal of the 2015 Rule would “avoid

interpretations of the [Clean Water Act] that push the envelope of their constitutional and statutory
authority absent a clear statement from Congress authorizing the encroachment of federal
jurisdiction over traditional state land-use planning authority.” Id.
71.

Fourth, the Agencies concluded that “the 2015 Rule’s distance-based limitations

suffered from certain procedural errors and a lack of adequate record support.” Id.
72.

Additionally, the Agencies supported their decision to repeal the Clean Water Rule

with the decision from two federal courts in Texas and Georgia that remanded the 2015 rule back
to these agencies. Id. at 56,639–40. However, these decisions were issued in the spring and summer
of 2019, well over two years since the issuance of the proposed rule and at least a year after the
issuance of the supplemental notice of proposed rulemaking. Further, the Agencies submitted their
final repeal rule to the Office of Management and Budget in July of 2019, which traditionally
marks the end of the agency’s decision-making process. See OMB, OIRA Conclusion of EO 12866
Regulatory Review, https://www.reginfo.gov/public/do/eoDetails?rrid=129319 (last visited Apr.
20, 2020). The decision from the Southern District of Georgia was not issued until August of 2019,
making it all the more difficult to understand how the agency could have relied on the decision
during the rulemaking process if the Agencies were seriously contemplating the merits of repeal.
See Final Repeal Rule, 84 Fed. Reg. at 56,640.
73.

Additionally, with the issuance of the Final Repeal Rule, the Agencies published

for the first time a new economic analysis intended to supplement the rulemaking record. EPA and
Corps, Economic Analysis for the Final Rule: Definition of “Waters of the United States”-

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Recodification

of

Pre-Existing

Rules

(Sept.

5,

2019),

https://www.epa.gov/sites/production/files/2019-09/documents/wotus_rin-2040af74_final_ea_508compliant_20190905.pdf . The second Economic Analysis is couched as being
informational only, as a means to avoid the requirements of the Administrative Procedure Act.
Final Repeal Rule, 84 Fed. Reg. at 56,662; see also Nat’l Assn’n of Home Builders v. EPA, 682
F.3d 1032, 1039–40 (the quality of an agency’s economic analysis can be tested under the
Administrative Procedure Act if the “agency decides to rely on a cost-benefit analysis as part of
its rulemaking.”). But the updated Economic Analysis was clearly developed to support the
premade decision to repeal the Clean Water Rule. The Economic Analysis II was not shared with
the public during the rulemaking process, leaving the public unable to comment on the merits of
the report or the appropriateness of relying on the analysis to repeal the Clean Water Rule.
CAUSES OF ACTION
COUNT 1
The Agencies Violated the Administrative Procedure Act by Issuing a Final Rule
Inconsistent with the Clean Water Act
74.

The allegations of the preceding paragraphs 1 through 73 are incorporated here by

reference.
75.

The purpose of the Clean Water Act is clear—to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Congress
created a comprehensive approach to restoring water quality, with a significant role for the federal
government. The Final Repeal Rule skirts that role by significantly reducing the scope of federal
protection for waters and wetlands, in direct contradiction with the purpose of the Act.
76.

It is arbitrary for the Agencies to adopt a regulation without establishing that the

rule comports with the purpose of the statute. See FCC v. Fox Television Stations, Inc., 556 U.S.
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502, 515 (2009) (holding that an “agency must show that … [a] new policy is permissible under
the statute” it is implementing); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (“an agency rule would be arbitrary and capricious in the agency… entirely
failed to consider an important aspect of the problem.”). When adopting regulations that interpret
statutory terms, the Agencies interpretation must comply with the “purpose and intent of the
statute… [and] no amount of deference can justify an interpretation of the statute that is contrary
to law.” Nat. Res. Def. Council, Inc. v. Envtl. Prot. Agency, 656 F.2d 768, 774 (D.C. Cir. 1981).
77.

The Agencies have not demonstrated how the Final Repeal Rule revoking the Clean

Water Rule is consistent the with Clean Water Act and the objective to “restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Congress
intended the Clean Water Act to broadly protect waters, “intend[ing] that the term ‘navigable
waters’ be given the broadest possible constitutional interpretation.” S. Rept. No. 92-1236, at 144
(1972) (Conf. Rep.). In fact, while debating the definition of “waters of the United States,”
Representative Dingell stated that the definition “clearly encompasses all water bodies, including
main streams and their tributaries, for water quality purposes.” 118 Cong. Rec. 33,757 (Oct. 4,
1972) (statement of Rep. Dingell). The broad reach of the jurisdiction of the Clean Water Act
envisioned by Congress directly connects to the purpose of the statute. “Protection of aquatic
ecosystems, Congress recognized, demanded broad federal authority to control pollution, for
‘water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at
the source.’” Riverside Bayview Homes, 474 U.S. at 132–33 (citing S. Rep. No. 92-414, at 77
(1972)).
78.

The Final Repeal Rule does not comport with the purpose of the statute. Repealing

the Clean Water Rule ignores the biological and chemical connections that create healthy waters,

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as expressly recognized in the purpose of the Act. This nearsighted approach to water protection
removes significant numbers of waters from the Clean Water Act—including waters and wetlands
that have a significant nexus to downstream navigable waters—which fundamentally hampers the
objective to restore and maintain our Nation’s waters.
79.

The Agencies have not demonstrated how removing waters from Clean Water Act

protections complies with the purpose of the Act. The Final Repeal Rule reduces the number of
waters that would require a permit to discharge pollutants or fill wetlands, which inherently hinders
the ability to restore and maintain national water quality. This is a vast departure from the purpose
and intent of the Clean Water Act to restore and maintain water quality. The Final Repeal Rule
contradicts the purpose of the Clean Water Act, in violation of the Administrative Procedure Act.
COUNT 2
The Agencies Violated the Administrative Procedure Act by Issuing a Predetermined
Decision to Repeal the Clean Water Rule
80.

The allegations of the preceding paragraphs 1 through 79 are incorporated here by

reference.
81.

The most basic tenant of administrative law requires agencies to meaningfully

consider their actions, through the notice and comment rulemaking process that incorporates public
comment and differing perspectives. Throughout this process, the agencies are meant to provide a
“reasoned explanation … to ensure that agencies offer genuine justifications for important
decisions, reasons that can be scrutinized by the courts and interested public.” Dept. of Commerce
v. New York, 139 S.Ct. 2551, 2575–76 (2019). Agencies cannot predetermine the outcome of a
rulemaking then undergo a sham notice and comment process in order to support the agency’s
conclusions. See Saget v. Trump, 375 F.Supp.3d 280, 360–61 (E.D.N.Y. 2019); Cowpasture River

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Pres. Ass’n v. Forest Service, 911 F.3d 150, 179 (4th Cir. 2018). Agency actions violate the
Administrative Procedure Act if they are pretextual. Saget, 375 F.Supp.3d at 361.
82.

The decision to repeal the Clean Water Rule was made by the Administration long

before the Agencies began the formal rulemaking process. The President issued an Executive
Order directing the Agencies to review the Clean Water Rule, but in the same order called on the
agencies to initiate a rulemaking to rescind the rule. Exec. Order No. 13,778.
83.

On July 27, 2017, the Agencies followed through with the charge from the

Executive Order and issued a proposed rule to repeal the Clean Water Rule. Propose Repeal Rule,
82 Fed. Reg. at 34,899. The Agencies jumped directly to the conclusion that the Clean Water Rule
should be repealed. In doing so, the Agencies foreclosed any comments on the substance of the
Clean Water Rule or the case-by-case analysis that existing before 2015. Id. at 34,903.
84.

In the Supplemental Rulemaking, the Agencies again stated that the Clean Water

Rule be repealed, with no further supporting analysis. Supplemental Repeal Rule, 83 Fed. Reg. at
32,227. The Agencies only solicited comments to support the conclusions they had already
reached.
85.

For over two years, the Agencies have merely gone through the motions of a

rulemaking to support the pre-ordained decision to repeal the Clean Water Rule, without analyzing
the merits of that decision or considering any alternatives. Any support for repeal produced by the
Agencies came after the decision had already been made.
86.

Because the Agencies impermissibly predetermined the outcome of their

rulemaking long before the Final Rule was issued, relying only on post hoc rationale, the repeal of
the Clean Water Rule is arbitrary and unlawful. Saget, 375 F.Supp.3d at 361.

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COUNT 3
The Agencies Violated the Administrative Procedure Act by Failing to
Articulate a Reasoned Explanation to Repeal the Clean Water Rule
87.

The allegations of the preceding paragraphs 1 through 86 are incorporated here by

reference.
88.

The Administrative Procedure Act requires agencies to articulate a reasonable

explanation for its decisions. In deregulatory actions, an agency must provide a reasoned
explanation for its action, and not “simply disregard rules that are still on the books.” Fox, 556
U.S. at 515; see also Physicians for Soc. Responsibility v. Wheeler, No. 19-5104, 2020 U.S. App.
LEXIS 12727 at *19–20 (D.C. Cir. Apr. 21, 2020). As such, an agency cannot reverse course on
a regulation without articulating a reasonable explanation for such a change, as “a reasoned
explanation is needed for disregarding facts and circumstances that underlay or were engendered
by the prior policy.” Id. at 515–16. This requirement is especially important when the new policy
“rests upon factual findings that contradict those which underlay its prior policy[.]” Id. at 515.
89.

Here, the Agencies have not articulated a reasonable explanation for the decision

to repeal the Clean Water Rule. The Agencies developed the Clean Water Rule on a welldeveloped record supported with extensive scientific evidence and public support. Clean Water
Rule, 80 Fed. Reg, at 37,057. Now the Agencies have made a complete about-face without
reckoning with the rulemaking record of the Clean Water Rule that would in any way support
repealing the Rule. The Agencies have developed no scientific studies to support the repeal, and
the public support for the Clean Water Rule remains strong. The only document the Agencies
produced during the rulemaking process was the first Economic Analysis I, which the Agencies
then disavowed. See Supplemental Repeal Rule, 83 Fed. Reg. at 32,250.

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90.

The Agencies have provided no factual support for their decision to repeal the Clean

Water Rule that meets the standard articulated in prior caselaw. Instead, the Agencies relied solely
on predetermined conclusions, and solicited comment on those conclusions to support their
decision. See Proposed Repeal Rule, 82. Fed. Reg. at 34,903; Supplemental Repeal Rule, 83 Fed.
Reg. at 32,227; supra ¶¶ 83, 84. These actions by the Agencies violated the mandate of the
Administrative Procedure Act to provide a reasoned explanation for agency decisions. The
Agencies made no effort to meaningfully consider the merits of the Clean Water Rule in the repeal
process, instead cabining such discussions for a later rulemaking. The Agencies provided no
substantive rationale for rejecting the definition of “waters of the United States” articulated in the
Clean Water Rule, falling far short of the requirements of the Administrative Procedure Act.
91.

As such, this Court should vacate the repeal of the Clean Water Rule as arbitrary

and capricious, in violation of the Administrative Procedure Act. 5 U.S.C. § 706.
COUNT 4
The Agencies Violated the Administrative Procedure Act by
Failing to Provide Adequate Notice and Comment
92.

The allegations of the previous paragraphs 1 through 91 are incorporated here by

reference.
93.

The Agencies did not provide adequate notice and comment in the rulemaking

process to repeal the Clean Water Rule.
94.

The Administrative Procedure Act requires the Agencies to provide notice of a

proposed rulemaking that shares either the terms or the substance of a proposed rule. 5 U.S.C. §
553(b)(3). Then the agency’s “shall give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments” and the agency’s must give

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“consideration of the relevant matter presented” and “shall incorporate in the rules adopted a
concise general statement of their basis and purpose.” Id. at §553(c).
95.

The notice and comment process in federal rulemaking serves a critical role in

assuring federal regulations are well-developed and fair to those affected by the rulemaking. The
public comment process “improves the quality of agency rulemaking by ensuring that agency
regulations will be tested by exposure to diverse public comment.” Small Refiner Lead PhaseDown Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983). In addition, the ability to submit
information to the agencies during the rulemaking process enhances juridical review. Id.
96.

An agency is required to “make its views known to the public in a concrete and

focused form so as to make criticism or formulation of alternatives possible.” Home Box Office,
Inc. v. Federal Communications Commission, 567 F.2d 9, 36 (D.C. Cir. 1977); South Carolina ex
rel. Tindal v. Block, 717 F.2d 874, 885 (4th Cir. 1983). If agencies do not provide adequate
evidence of the agencies’ reasoning behind the proposed rule, the public’s ability to comment on
the proposal is significantly hampered. See Ohio Valley Envtl. Coal. v. Army Corps of Eng’rs, 674
F.Supp. 2d 783, 802–03 (S.D. WV 2009). Such is the case here with the repeal of the Clean Water
Rule.
97.

Because the Agencies had predetermined the outcome of the rulemaking process,

the Proposed Repeal Rule did not provide adequate opportunity for notice and public comment.
By limiting the scope of comments and soliciting comments only on the appropriateness of
reinstating the prior regulations, the Agencies did not provide the public with the opportunity to
meaningfully comment on whether the Clean Water Rule should be repealed, having already
concluded that repeal was warranted.

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98.

Further, the Proposed Repeal Rule did not provide adequate evidence of the

Agencies’ rationale for repealing the Clean Water Rule, instead only sharing four primary reasons
for repealing the Clean Water Rule in the Final Rule. Final Repeal Rule, 84 Fed. Reg. at 56,626.
This prevented the public from meaningfully commenting on the reasoning of the Agencies’
decision-making, in violation of the Administrative Procedure Act and the strong body of case law
defining “meaningful public comment.”
99.

Therefore, this Court should vacate the repeal of the Clean Water Rule as it violated

the notice-and-comment requirements of the Administrative Procedure Act. 5 U.S.C. § 553(b).
COUNT 5
The Agencies Violated the Administrative Procedure Act by Relying on an
Economic Analysis Not Shared with the Public
100.

The allegations of the previous paragraphs 1 through 99 are incorporated here by

reference.
101.

The Clean Water Act does not require a cost-benefit analysis when promulgating

definitional regulations, but an executive order requires federal agencies to assess both the costs
and benefits of significant regulatory actions. Exec. Order No. 12,866, Regulatory Planning and
Review, 58 Fed. Reg. 190 (Oct. 4, 1993). If federal agencies rely on an economic analysis to justify
their decision, that analysis is subject to scrutiny under the Administrative Procedure Act. See,
e.g., Nat’l Assn’n of Home Builders v. EPA, 682 F.3d 1032, 1039-50 (noting that the quality of an
agency’s economic analysis can be tested under the Administrative Procedure Act if the “agency
decides to rely on a cost-benefit analysis as part of its rulemaking.”). If an agency does undergo
an economic analysis, “a serious flaw undermining that analysis can render the rule unreasonable.”
Id. Further, the economic analysis must comply with the requirements of the Administrative
Procedure Act to disclose such information to the public during the notice and comment process.
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102.

The Agencies published Economic Analysis II with the final rule, claiming the

document served as only an informational tool. But the Agencies clearly intended for the Economic
Analysis II to support their decision to repeal the Clean Water Rule. Economic Analysis II
represented a substantial change from Economic Analysis I, which the Agencies disavowed. As
such, Economic Analysis II should have been provided to the public during the notice and
comment process to inform the public in their evaluation of the rule prior to the comment period
deadline.
103.

By publishing Economic Analysis II with the Final Rule, the Agencies have

circumvented the requirements of the Administrative Procedure Act unlawfully. As such, the
repeal of the Clean Water Rule should be vacated.
COUNT 6
The Agencies Violated the Administrative Procedure Act by Adopting a Rule that Prevents
the Agencies from Complying with Statutory Duties under the Clean Water Act
104.

The allegations of the proceeding paragraphs 1 through 103 are incorporated here

by reference.
105.

The Final Rule prevents the Agencies from complying with their statutory duty

under Section 117(g) of the Clean Water Act to restore the Chesapeake Bay; to meet their
obligations under the Chesapeake Bay TMDL; and to achieve the goals of the 2014 Chesapeake
Bay Watershed Agreement. See 33 U.S.C. § 1267(g); Bay TMDL, at ES-1; Chesapeake Bay
Watershed Agreement, at 5, 9. Removing waters and wetlands from Clean Water Act jurisdiction
interferes with the Agencies responsibility to restore water quality in the Chesapeake Bay. See
supra ¶¶ 7–12.
106.

It is arbitrary and capricious for the Agencies to adopt the Final Rule, which

prevents the Agencies from complying with their duties under the Clean Water Act and the
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Chesapeake Bay Watershed Agreement. As such, the Final Rule violates the Administrative
Procedure Act.
REQUEST FOR RELIEF
Plaintiffs respectfully request that this Court:
1.

Declare that defendant Agencies acted arbitrarily and unlawfully in promulgating

the challenged rule: Definition of Waters of the United States—Recodification of Pre-Existing
Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019);
2.

Vacate and set aside the challenged rule;

3.

Reinstate the 2015 Clean Water Rule in the jurisdictions where the Rule went into

4.

Issue an order awarding Plaintiffs their costs of litigation, including reasonable

effect;

attorney’s fees; and
5.

Grant plaintiffs such further relief as the Court deems necessary.

Dated April 24, 2020.
Respectfully submitted,
/s/ Brittany E. Wright
Brittany E. Wright (Bar No. 21029)
Jon A. Mueller (Bar No. 17142)
Chesapeake Bay Foundation, Inc.
6 Herndon Avenue
Annapolis, MD 21403
(443) 482-2077
Fax: (410) 268-6687
bwright@cbf.org
jmueller@cbf.org
Counsel for Chesapeake Bay Foundation,
Inc. and ShoreRivers
34