Application — Louisiana, et al., Applicants v. American Rivers, et al.

Supreme Court briefMar 21, 2022

Ask Donna

What actually matters in this document.

Text

No. ______

In the Supreme Court of the United States

STATE OF LOUISIANA; STATE OF ARKANSAS; STATE OF MISSISSIPPI; STATE OF MISSOURI;

STATE OF MONTANA; STATE OF WEST VIRGINIA; STATE OF WYOMING; STATE OF TEXAS;

AMERICAN PETROLEUM INSTITUTE, INTERSTATE NATURAL GAS ASSOCIATION OF

AMERICA, and NATIONAL HYDROPOWER ASSOCIATION,

APPLICANTS,

AMERICAN RIVERS; MICHAEL S. REGAN; and U.S. ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

RESPONDENTS.

APPENDIX TO APPLICATION FOR STAY PENDING APPEAL

VOLUME II OF IV

On Application For Stay, Or, In The Alternative, On Petition For A Writ Of

Certiorari To The U.S. Court Of Appeals For The Ninth Circuit

To the Honorable Elena Kagan

Associate Justice of the Supreme Court of the United States

and Circuit Justice for the Ninth Circuit

GEORGE P. SIBLEY, III

HUNTON ANDREWS KURTH LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, VA 23219

(804) 788-8262

(804) 788-8218 (fax)

gsibley@huntonak.com

DEIDRE G. DUNCAN

ERICA N. PETERSON

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Ave., NW

Washington, DC 20037

MISHA TSEYTLIN

Counsel of Record

SEAN T.H. DUTTON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street, Suite 3900

Chicago, IL 60606

(608) 999-1240

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

TIMOTHY L. MCHUGH

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point,

15th Floor

Richmond, VA 23219

Attorneys for Applicants

[Additional counsel on following page.]

CLARE ELLIS

HUNTON ANDREWS KURTH LLP

50 California Street

Suite 1700

San Francisco, CA 94111

Attorneys for Applicants American

Petroleum Institute and Interstate

Natural Gas Association of America

ELIZABETH B. MURRILL,

SOLICITOR GENERAL

JOSEPH S. ST. JOHN,

DEPUTY SOLICITOR

LOUISIANA DEPARTMENT

OF JUSTICE

1885 N. Third Street

Baton Rouge, LA 70804

(225) 326-6739

murrille@ag.louisiana.gov

stjohnj@ag.louisiana.gov

CHARLES SENSIBA

TROUTMAN PEPPER

HAMILTON SANDERS LLP

401 9th Street NW

Suite 1000

Washington, DC 20004-2146

ELIZABETH HOLT ANDREWS

TROUTMAN PEPPER

HAMILTON SANDERS LLP

Three Embarcadero Center

Suite 800

San Francisco, CA 94111-4057

Attorneys for Applicant National

Hydropower Association

Attorneys for Applicant State of

Louisiana

JAMES KASTE

DEPUTY ATTORNEY GENERAL

WYOMING ATTORNEY GENERAL’S OFFICE

109 State Capitol

Cheyenne, WY 82002

Additional Counsel:

AUSTIN KNUDSEN

Attorney General of Montana

LESLIE RUTLEDGE

Attorney General of Arkansas

KEN PAXTON

Attorney General of Texas

LYNN FITCH

Attorney General of Mississippi

PATRICK MORRISEY

Attorney General of West Virginia

ERIC SCHMITT

Attorney General of Missouri

Attorneys for Applicants

TABLE OF CONTENTS

Volume I

Order Regarding Motion to Relate, ECF No. 23, In re Clean Water

Act Rulemaking, No.3:20-cv-04636-WHA (N.D. Cal. Aug. 08, 2020) ................. App. 1

Motion to Intervene by the states of Arkansas, Louisiana, Mississippi,

Missouri, Montana, Texas, West Virginia, Wyoming, ECF No. 27, In re

Clean Water Act Rulemaking, No. 3:20-cv-4636-JSC (N.D. Cal.

Aug. 28, 2020) ....................................................................................................... App. 2

Order Relating to Case No.20-04869, ECF No. 41, In re Clean Water Act

Rulemaking, No. 3:20-cv-4636-WHA (N.D. Cal. Sept. 02, 2020)

............................................................................................................................. App. 95

Declaration of Robin Rorick for the American Petroleum Institute In

Support of the Coalition’s Motion to Intervene in Support of Defendants,

ECF No.56-1, In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA;

3:20-cv-04869-WHA (N.D. Cal. Sept. 04, 2020) ................................................. App. 96

Declaration of Joan Dreskin for the Interstate Natural Gas Association

of America In Support of the Coalition’s Motion to Intervene in Support

of Defendants, ECF No. 56-2, In re Clean Water Act Rulemaking,

No. 3:20-cv-04636-WHA; 3:20-cv-04869-WHA (N.D. Cal. September 04,

2020) .................................................................................................................. App. 105

Order Granting Motion to Intervene, ECF No. 62, In re Clean Water Act

Rulemaking, No. 3:20-cv-04636-WHA; 3:20-cv-04869-WHA (N.D. Cal.

Sept. 17, 2020)................................................................................................... App. 115

First Amended Complaint, ECF No. 75, In re Clean Water Act

Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal. Sept. 29, 2020) .................. App. 116

Joint Case Management Statement, ECF No. 84, In re Clean Water

Act Rulemaking, No. 3:20-cv-04636-WHA; 3:20-cv-04869-WHA;

3:20-cv-06137 (N.D. Cal. Oct. 15, 2020) ........................................................... App. 148

Complaint for Declaratory and Injunctive Relief, ECF No. 96, In re

Clean Water Act Rulemaking, No. 3:20-cv-04869-WHA (N.D. Cal.

Oct. 30, 2020) .................................................................................................... App. 165

Complaint for Declaratory and Injunctive Relief, ECF No. 98, In re

Clean Water Act Rulemaking, No. 3:20-cv-06137-WHA (N.D. Cal.

Nov. 02, 2020) ................................................................................................... App. 197

Order Regarding Proposed Timeline For Administrative Record Completion,

ECF No. 116, In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA

(N.D. Cal. Nov. 30, 2020) .................................................................................. App. 224

Order Regarding Joint Motion to Hold Proceedings in Abeyance, ECF

No. 132, In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA

(N.D. Cal. Feb. 22, 2021) ................................................................................. App. 225

EPA’S Motion for Remand Without Vacatur, ECF No. 143, In re Clean

Water Act Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal.

July 01, 2021) .................................................................................................... App. 226

Volume II

Plaintiff’s Opposition to EPA’s Motion for Remand Without Vacatur,

ECF No. 145, In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA

(N.D. Cal. July 26, 2021) .................................................................................. App. 244

Plaintiff States’ Opposition to Defendants’ Motion for Remand Without Vacatur,

ECF No. 146, In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA

(N.D. Cal. July 26, 2021) .................................................................................. App. 267

Declaration of Eileen Sobeck in Support of Plaintiffs’ Opposition to Motion

for Remand, ECF No. 146-1, In re Clean Water Act Rulemaking,

No. 3:20-cv-04636-WHA (N.D. Cal. July 26, 2021).......................................... App. 299

American Rivers’ Opposition to EPA’s Motion for Remand Without Vacatur,

ECF No. 147, In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA

(N.D. Cal. July 26, 2021) .................................................................................. App. 424

EPA’s Reply In Support Of Motion For Remand Without Vacatur,

ECF No. 153, In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA

(N.D. Cal. Aug. 12, 2021) .................................................................................. App. 450

Intervenor Defendants’ Reply In Support Of Motion To Strike, ECF No. 155,

In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal.

August 19, 2021) ............................................................................................... App. 473

- ii -

Volume III

Intervenor Defendants’ Supplemental Brief On Allied-Signal Factors,

ECF No. 172, In re Clean Water Act Rulemaking, No. 3:20-cv-04636

(N.D. Cal. Oct. 4, 2021) ..................................................................................... App. 478

August 2, 2021, Letter Comments From American Fuel & Petrochemical

Manufacturers, et al., Regarding Section 401 Rule, ECF No. 172-1,

In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal.

Oct. 04, 2021) .................................................................................................... App. 497

Declaration Of David M.S. Dewhirst, ECF No. 172-2, In re Clean Water

Act Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal. Oct. 04, 2021) ............. App. 549

Order Regarding Motion to Remand Without Vacatur, ECF No. 173,

In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal.

Oct. 21, 2021) .................................................................................................... App. 552

Final Judgment, ECF No. 176, In re Clean Water Act Rulemaking,

No. 3:20-cv-04636-WHA (N.D. Cal. Nov. 17, 2021) ......................................... App. 570

Intervenor Defendants’ Motion for Stay Pending Appeal, ECF No. 179,

In re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal.

Nov. 17, 2021) ................................................................................................... App. 571

Order Denying Motion for Stay Pending Appeal, ECF No. 191, In re

Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA (N.D. Cal.

Dec. 07, 2021) .................................................................................................... App. 612

Intervenor National Hydropower Association’s Notice of Motion &

Motion to Intervene, ECF No. 75, In re Clean Water Act Rulemaking,

No. 3:20-cv-04869-WHA (N.D. Cal. Sept. 04, 2020) ........................................ App. 626

American Petroleum Institute and Interstate Natural Gas of America’s

Notice of Motion and Motion to Intervene and Memorandum of Points

and Authorities in Support Thereof, ECF No. 84, In re Clean Water Act

Rulemaking, No. 3:20-cv-04869-WHA (N.D. Cal. Sept. 04, 2020) .................. App. 638

Order Granting Intervention, ECF No. 113, In re Clean Water Act

Rulemaking, No. 3:20-cv-04869-WHA (N.D. Cal. October 09, 2020) .............. App. 666

- iii -

Volume IV

Intervenor-Defendants-Appellants’ and Intervenors-Appellants’

Motion for Stay Pending Appeal, ECF No. 20, In re Clean Water Act

Rulemaking, No. 21-16958 (9th Cir. December 15, 2021)............................... App. 667

Federal Defendants’ Response in Opposition to Intervenor Defendants/

Appellants’ Motion for Stay Pending Appeal, ECF No. 26, In re Clean

Water Act Rulemaking, No. 21-16958 (9th Cir. January 11, 2022) ............... App. 757

Federal Defendants’ Motion to Dismiss Appeal for Lack of Appellate

Jurisdiction, ECF No. 33, In re Clean Water Act Rulemaking,

No. 21-16958 (9th Cir. January 19, 2022) ....................................................... App. 783

Order Denying Stay, ECF No. 41, In re Clean Water Act Rulemaking,

No. 21-16958 (9th Cir. February 24, 2022) ...................................................... App. 799

- iv -

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 1 of 23

MONEEN NASMITH (NY Bar # 4427704)

[Admitted Pro Hac Vice]

MICHAEL YOUHANA (NY Bar # 5819032)

[Admitted Pro Hac Vice]

Earthjustice

48 Wall Street, 15th Floor

New York, NY 10005

(212) 845-7384 / (212) 284-8033

mnasmith@earthjustice.org

myouhana@earthjustice.org

THOMAS S. WALDO (AK Bar # 9007047)

[Admitted Pro Hac Vice]

OLIVIA GLASSCOCK (AK Bar # 1809072)

[Admitted Pro Hac Vice]

Earthjustice

325 4th Street

Juneau, AK 99801

(907) 500-7123 / (907) 500-7134

twaldo@earthjustice.org

oglasscock@earthjustice.org

KRISTEN L. BOYLES (CA Bar # 158450)

Earthjustice

810 Third Avenue, Suite 610

Seattle, WA 98104

(206) 343-7340

kboyles@earthjustice.org

Attorneys for Plaintiffs

GUSSIE LORD (DC Bar # 1009826)

[Admitted Pro Hac Vice]

Earthjustice

633 17th Street, Suite 1600

Denver, CO 80202

(720) 402-3764

glord@earthjustice.org

NATHAN MATTHEWS (CA Bar # 264248)

Sierra Club

2101 Webster Street, Suite 1300

Oakland, CA 94612

(415) 977-5695

nathan.matthews@sierraclub.org

Local Counsel and Attorney for Sierra Club

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

In re:

CLEAN WATER ACT RULEMAKING

Case No. 3:20-cv-04636-WHA

Case No. 3:20-cv-04869-WHA

Case No. 3:20-cv-06137-WHA

(Consolidated)

This document relates to:

ALL ACTIONS

Plaintiffs’ Opposition to EPA’s Motion for

Remand Without Vacatur

Hearing: Aug. 26, 2021 at 12 p.m.

Opp’n

to EPA’s

- App.

244 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 2 of 23

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

BACKGROUND .............................................................................................................................1

ARGUMENT ...................................................................................................................................5

THE COURT SHOULD DENY EPA’S REQUEST FOR VOLUNTARY REMAND

WITHOUT VACATUR.......................................................................................................5

The Court Should Deny Remand Without Vacatur Because the CWA

Requires that EPA Revise the Certification Rule. ...................................................5

Remand Without Vacatur Is Not in the Interests of Judicial and

Administrative Economy. ........................................................................................7

Remand Will Unduly Prejudice Plaintiffs. ..............................................................9

II.

THE COURT SHOULD VACATE THE RULE UPON REMAND. ...............................11

Serious Legal Errors Mar the Certification Rule. ..................................................11

Vacatur of the Certification Rule Is the Less Disruptive Option. ..........................14

CONCLUSION ..............................................................................................................................17

Opp’n

to EPA’s

- App.

245 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 3 of 23

TABLE OF AUTHORITIES

CASES

Page number(s)

Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531 (1987) ...........................................................................................................15

Cal. Cmties. Against Toxics v. EPA,

688 F.3d 989 (9th Cir. 2012) ...........................................................................11, 12, 13, 15

Chlorine Chemistry Council v. EPA,

206 F.3d 1286 (D.C. Cir. 2000) ...........................................................................................9

City of Tacoma v. FERC,

460 F. 3d 53 (D.C. Cir. 2006) ............................................................................................12

Idaho Farm Bureau Fed’n v. Babbitt,

58 F.3d 1392 (9th Cir. 1995) .............................................................................................11

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) .............................................................................................................12

Nat’l Family Farm Coal. v. EPA,

960 F.3d 1120 (9th Cir. 2020) ...........................................................................................14

N. Coast Rivers All. v. U.S. Dep’t of the Interior,

No. 16-CV-00307, 2016 WL 8673038 (E.D. Cal. Dec. 16, 2016) ......................................6

N. Coast Rivers All. v. U.S. Dep’t of the Interior,

No. 16-CV-00307, 2016 WL 11372492 (E.D. Cal. Sept. 23, 2016)....................................7

Pollinator Stewardship Council v. EPA,

806 F.3d 520 (9th Cir. 2015) ...........................................................................11, 13, 14, 15

PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology,

511 U.S. 700 (1994) .......................................................................................................6, 12

S.D. Warren Co. v. Me. Bd. of Env’t Prot.,

547 U.S. 370 (2006) .......................................................................................................3, 12

Se. Alaska Conservation Council v. U.S. Forest Serv.,

468 F. Supp. 3d 1148 (D. Alaska 2020) ............................................................................14

SKF USA Inc. v. United States,

254 F.3d 1022 (Fed. Cir. 2001)........................................................................................6, 7

U.S. Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) ...........................................................................................................12

Util. Solid Waste Activities Grp. v. EPA,

901 F.3d 414 (D.C. Cir. 2018) .............................................................................................7

Opp’n

to EPA’s

- App.

246 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 4 of 23

STATUTES

33 U.S.C. § 1251 ....................................................................................................................2, 7, 12

33 U.S.C. § 1341 ..............................................................................................................................1

REGULATIONS

40 C.F.R. § 121.1 .......................................................................................................................6, 12

40 C.F.R. § 121.2 ...........................................................................................................................12

40 C.F.R. § 121.3 .......................................................................................................................6, 12

40 C.F.R. § 121.4 ...........................................................................................................................10

40 C.F.R. § 121.6 ...........................................................................................................................12

40 C.F.R. § 121.7 ...........................................................................................................................12

40 C.F.R. § 121.8 ...........................................................................................................................12

40 C.F.R. § 121.9 .......................................................................................................................6, 12

FEDERAL REGISTER & DOCKET MATERIALS

Clean Water Act Section 401 Certification Rule,

85 Fed. Reg. 42,210 (July 13, 2020) (to be codified at 40 C.F.R. pt. 121)..........................1

Exec. Order No. 13,868, Promoting Energy Infrastructure and Energy Growth,

84 Fed. Reg. 15,495 (Apr. 10, 2019) ...............................................................................2, 6

Exec. Order No. 13,990, Protecting Public Health and the Environment and Restoring Science

to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 20, 2021) ..........................3, 6, 7, 13

Notice of Intention to Reconsider and Review the Clean Water Act Section 401 Certification

Rule, 86 Fed. Reg. 29,541 (June 2, 2021)............................................................3, 4, 12, 13

Am. Fisheries Soc’y et al., Comments on Proposed Rule (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0784 ............................2

Att’ys Gen. of States of Wash., N.Y., Cal., et al., Comments on Proposed Rule (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0556 ....................... 1, 2

EPA, Economic Analysis for the Clean Water Act Section 401 Certification Rule,

Docket ID No. EPA-HQ-OW-2019-0405-1125 (May 2020) ............................................14

EPA, EPA ICR No. 2603.02, ICR Supporting Statement, Information Collection Request for

Updating Regulations on Water Quality Certification Proposed Rule,

Docket ID No. EPA-HQ-OW-2019-0405-0070 (Aug. 2019)............................................14

Nat’l Wildlife Fed’n, et al., Comments on Proposed Rule (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0911 ............................2

Nez Perce Tribe, Comments on Proposed Rule (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0908 ............................1

Pyramid Lake Paiute Tribe, Comments on Proposed Rule (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0547 ............................1

Sierra Club et al., Comments on Proposed Rule (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0903 ............................2

iii

Opp’n

to EPA’s

- App.

247 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 5 of 23

OTHER AUTHORITIES

Fact Sheet: List of Agency Actions for Review, White House (Jan. 20, 2021),

https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet

-list-of-agency-actions-for-review/ ......................................................................................3

Press Release, EPA, EPA Administrator Wheeler New York Post Op-Ed: Here’s How Team

Trump Will Bust Cuomo’s Gas Blockade (Aug. 16, 2019),

https://www.epa.gov/newsreleases/epa-administrator-wheeler-new-york-post-op-edheres-how-team-trump-will-bust-cuomos-0 ....................................................................2, 6

Press Release, EPA, EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits

Misuse of the Clean Water Act (June 1, 2020), https://www.epa.gov/newsreleases/epaissues-final-rule-helps-ensure-us-energy-security-and-limits-misuse-clean-water-0. .........2

Opp’n

to EPA’s

- App.

248 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 6 of 23

MEMORANDUM AND POINTS OF AUTHORITIES

Suquamish Tribe, Pyramid Lake Paiute Tribe, Orutsararmiut Native Council, Columbia

Riverkeeper, and Sierra Club, (collectively, “Plaintiffs”) by and through their counsel, respectfully

request that the Court deny the motion for remand without vacatur filed by the United States

Environmental Protection Agency and Michael S. Regan, in his official capacity as the

Administrator of the United States Environmental Protection Agency (collectively, “EPA” or the

“Agency”), on July 1, 2021, in the matter of EPA’s Clean Water Act (“CWA”) Section 401

Certification Rule.

Remand without vacatur is inappropriate in this case because it would leave a legally

deficient regulation in effect until the spring of 2023 and perhaps longer, while EPA engages in a

rulemaking to revise the rule. A failure to vacate would have real, negative consequences for

Plaintiffs and the environment. Chiefly, this failure would result in certifications of projects in a

manner that runs counter to Section 401’s core purposes, including maintaining a system of

cooperative federalism and safeguarding state and tribal water quality.

BACKGROUND

On July 13, 2020, EPA published the Clean Water Act Section 401 Certification Rule, 85

Fed. Reg. 42,210 (to be codified at 40 C.F.R. pt. 121) (“Certification Rule”), upending a half century

of regulatory practice under CWA Section 401, 33 U.S.C. § 1341. EPA promulgated the

Certification Rule over the objections of myriad commenters, including Plaintiffs. Dozens of states

and tribes across the country had argued that the proposed regulation upset the cooperative federalist

principles at the heart of the CWA. See, e.g., Att’ys Gen. of States of Wash., N.Y., Cal., et al.,

Comments on Proposed Rule 23–25 (Oct. 21, 2019), https://www.regulations.gov/comment/EPA-

HQ-OW-2019-0405-0556 (“State AG Comments”); Pyramid Lake Paiute Tribe, Comments on

Proposed Rule 3 (Oct. 21, 2019), https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-

0547; Nez Perce Tribe, Comments on Proposed Rule 9 (Oct. 21, 2019), https://www.regulations.gov/

comment/EPA-HQ-OW-2019-0405-0908. These certifying authorities were joined by citizens,

nonprofit organizations, and other concerned parties who pointed to the tremendous harm the

Certification Rule was likely to have on the public and the environment. See, e.g., Sierra Club et al.,

Opp’n

to EPA’s

- App.

249 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 7 of 23

Comments on Proposed Rule 1–2 (Oct. 21, 2019), https://www.regulations.gov/comment/EPA-HQ-

OW-2019-0405-0903 (“Sierra Club Comments”); Am. Fisheries Soc’y et al., Comments on

Proposed Rule 1–2 (Oct. 21, 2019), https://www.regulations.gov/comment/EPA-HQ-OW-2019-

0405-0784; Nat’l Wildlife Fed’n, et al., Comments on Proposed Rule 6–8 (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0911.

Many commenters objected to EPA’s promulgation of the proposed rule on the grounds that

the regulation would be contrary to the CWA’s mandate to restore and protect the physical,

chemical, and biological integrity of the Nation’s waters and to do so as broadly as possible. See,

e.g., State AG Comments at 33; Sierra Club Comments at 2; see also 33 U.S.C. § 1251. Specifically,

EPA engaged in the rulemaking pursuant to Executive Order (“EO”) 13,868, titled Promoting

Energy Infrastructure and Energy Growth, 84 Fed. Reg. 15,495, issued by former President Trump

on April 10, 2019. See 84 Fed. Reg. at 44,081–82. That EO asserted that it was “the policy of the

United States to promote private investment in the Nation’s energy infrastructure” and instructed

EPA to facilitate the construction of infrastructure to transport “supplies of coal, oil, and natural gas”

to market. 84 Fed. Reg. at 15,495. Dispensing with any ambiguity about the intent underlying the

rulemaking, former EPA Administrator Andrew Wheeler stated that “[b]y reining in states, the

updated regulations in our proposal will streamline the approval for and construction of energy

infrastructure projects.” 1 He later complained that certifying authorities “have held our nation’s

energy infrastructure projects hostage.” 2

Plaintiffs filed their complaint against EPA requesting vacatur of the Certification Rule on

September 1, 2020. Plaintiffs maintain that EPA’s rulemaking was arbitrary, capricious, an abuse of

discretion, and contrary to law because the Certification Rule violated the CWA, was promulgated

without a satisfactory explanation for upending decades of policy and practice, was promulgated in

Press Release, EPA, EPA Administrator Wheeler New York Post Op-Ed: Here’s How Team

Trump Will Bust Cuomo’s Gas Blockade (Aug. 16, 2019), https://www.epa.gov/newsreleases/epaadministrator-wheeler-new-york-post-op-ed-heres-how-team-trump-will-bust-cuomos-0.

Press Release, EPA, EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits

Misuse of the Clean Water Act (June 1, 2020), https://www.epa.gov/newsreleases/epa-issues-finalrule-helps-ensure-us-energy-security-and-limits-misuse-clean-water-0.

Opp’n

to EPA’s

- App.

250 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 8 of 23

violation of EPA’s own policies and procedures related to the Agency’s responsibilities to tribes, and

was promulgated without adequately analyzing how the rule would affect tribes and environmental

justice communities. Suquamish Compl. ¶¶ 77–89. Across the country, various additional parties

filed lawsuits challenging the Certification Rule. This Court consolidated Plaintiffs’ case with others

previously filed by several states and three additional environmental organizations (“Co-Plaintiffs”).

On January 20, 2021, President Biden issued EO 13,990, Protecting Public Health and the

Environment and Restoring Science to Tackle the Climate Crisis, which instructed agencies to

review all existing regulations “that are or may be inconsistent with, or present obstacles to”

enumerated environmental policies such as the promotion of “access to clean air and water.” 86 Fed.

Reg. 7037, 7037. President Biden used the opportunity to revoke EO 13,868, removing one of the

primary justifications for the Certification Rule—an action that implied that the Trump

administration’s order to promote the construction of energy infrastructure was itself at odds with

federal environmental policy. See id. at 7042. And in a press statement issued on the same day, the

Biden administration specified that the Certification Rule would be reviewed in accordance with the

new President’s order. Fact Sheet: List of Agency Actions for Review, White House (Jan. 20, 2021),

https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-

agency-actions-for-review/.

After the issuance of EO 13,990, the cases against the Certification Rule were stayed. During

this stay, EPA formally announced that it intended to redo the Certification Rule. In its Notice of

Intention to Reconsider and Review the Clean Water Act Section 401 Certification Rule (“NIRR”),

EPA itself pointed to multiple potential errors and deficiencies within the Certification Rule and

stated that the agency intended to revise the regulation to address problems with the Certification

Rule. See 86 Fed. Reg. 29,541 (June 2, 2021).

In the NIRR, EPA admitted the possibility that “portions of the rule impinge on” cooperative

federalism principles that Congress envisioned as core to CWA Section 401. Id. at 29,542; see also

S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547 U.S. 370, 380 (2006) (“Section 401 recast pre-

existing law and was meant to ‘continu[e] the authority of the State . . . .’” (alterations in original)

(quoting S. Rep. No. 92-414, at 69 (1971))). The Agency admitted to several ways in which the rule

Opp’n

to EPA’s

- App.

251 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 9 of 23

as written could chip away at the powers Congress reserved for states and tribes. For example, EPA

conceded that the Certification Rule may prevent states and tribes from gaining access to

information necessary for Section 401 review before the certification process begins by

“constrain[ing] what states and tribes can require in certification requests.” 86 Fed. Reg. at 29,543.

EPA also admitted that the Certification Rule may “not allow state and tribal authorities a sufficient

role in setting the timeline for reviewing certification requests” and “that the rule’s narrow scope of

certification and conditions may prevent state and tribal authorities from adequately protecting their

water quality.” Id. The Agency also pointed to potentially serious problems with the Certification

Rule’s provision of excessive authority to federal agencies to permanently waive certification

conditions based on “nonsubstantive and easily fixed procedural” grounds, as well as the prohibition

on modifications of certifications. Id. at 29,543–44.

The NIRR further requested input on ten different topics: (1) pre-filing meeting requests, (2)

certification requests, (3) the definition of a “reasonable period of time,” (4) the scope of

certification, (5) certification actions and federal agency review, (6) enforcement, (7) modifications

to certifications, (8) the neighboring jurisdiction process, (9) impacts of the Certification Rule on the

Section 401 process, and (10) implementation coordination, further noting EPA’s concerns with

many aspects of the Certification Rule. Id. at 29,541–44.

EPA expects to publish a proposed rule containing revisions in spring of 2022, but does not

expect a final rule to go into effect until the spring of 2023. Goodin Decl., ECF No. 143-1, at ¶¶ 23,

27. In the meantime, to the detriment of Plaintiffs and in spite of EPA’s manifold concerns with the

Certification Rule as written, the Agency plans to keep the legally deficient regulation in effect. To

this end, on July 1, 2021, EPA filed a Motion for Remand Without Vacatur, ECF No. 143 (“EPA

Motion”), in this Court. If granted, any applications under Section 401 that have been submitted

since the Certification Rule came into effect and any applications that are submitted before EPA

finalizes a revised rule would be subject to the Certification Rule’s invalid provisions, including

those that EPA has noted may prevent state and tribal authorities from protecting water resources.

Opp’n

to EPA’s

- App.

252 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 10 of 23

ARGUMENT

The Court should deny EPA’s request for voluntary remand and allow this case to proceed to

the merits, as doing so is in the interests of judicial economy and would avoid undue prejudice to the

Plaintiffs. In the alternative, the Court should remand to EPA and also vacate the legally invalid

Certification Rule.

The Court Should Deny EPA’s Request for Voluntary Remand Without Vacatur.

This Court should deny EPA’s request for voluntary remand without vacatur because 1) EPA

is compelled by the CWA to revise the Certification Rule; 2) remand without vacatur would not be

in the interests of judicial and administrative economy; and 3) remand without vacatur would be

unduly prejudicial to Plaintiffs. The Certification Rule is arbitrary, capricious, an abuse of discretion,

and contrary to the CWA. EPA’s proposal to delay a ruling on the merits will allow unknown

numbers of certification applications to be reviewed and decided under a rule that EPA itself admits

may have major deficiencies and run contrary to the CWA. Failure to resolve the question of the

Certification Rule’s validity for 18 months or more will allow disagreements between certifying

authorities, federal agencies, and project proponents about the precise scope and meaning of CWA

Section 401 and the validity of the Certification Rule to persist for years. These ongoing disputes

over statutory meaning and regulatory validity will pave the way for more lawsuits as states and

tribes attempt to assert their authority during certification processes and federal licensing agencies or

applicants challenge their right to do so. The net result will be a waste of judicial resources and an

issuance of certifications with insufficient conditions to protect water quality.

Furthermore, keeping this deeply flawed regulation on the books for a prolonged period

prejudices the parties to this case who are navigating or will navigate Section 401 Certification

processes under the framework of the Certification Rule for the better part of the next two years.

Plaintiffs ask the Court to deny voluntary remand without vacatur.

The Court Should Deny Remand Without Vacatur Because the CWA Requires

that EPA Revise the Certification Rule.

Remand without vacatur is not appropriate here because EPA’s request for remand arises out

of a change in agency policy or interpretation where there is “an issue as to whether the agency is

Opp’n

to EPA’s

- App.

253 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 11 of 23

either compelled or forbidden by the governing statute to reach a different result.” See SKF USA Inc.

v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). 3

There is no question that EPA’s decision to revise the Certification Rule is “associated with a

change in agency policy or interpretation.” See id. The Biden Administration rescinded the Trump

administration EO 13,868, through which the Trump Administration directed EPA to promulgate a

construction of CWA Section 401 that would facilitate the construction of infrastructure to transport

“supplies of coal, oil, and natural gas” to market. See 84 Fed. Reg. at 15,495; 84 Fed. Reg. at

44,081–82. 4 EPA now interprets Section 401 under the Biden administration’s environmental

policies enshrined in EO 13,990, which order the agency to promote access to clean water. EPA

Motion at 2, 10; Goodin Decl. ¶¶ 8, 9; see also 86 Fed. Reg. 7037.

The heart of this case is whether the Certification Rule is contrary to the CWA. Among the

numerous provisions of the Certification Rule that are violative of the text of Section 401 are the

provisions limiting the scope of an agency’s review of applicants’ activities, see 40 C.F.R.

§§ 121.1(f), (n); 121.3; PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S.700, 707–

13 (1994), and provisions that grant federal agencies authority to ignore state and tribal decisions to

deny or condition certifications based on the failure to comply with newly created requirements

found in the Certification Rule, see 40 C.F.R. § 121.9.

The Biden administration and EPA have raised questions akin to those raised by the

Plaintiffs 5 as to whether the CWA forbids provisions of the Certification Rule. President Biden

Courts in the 9th Circuit “generally look to the Federal Circuit’s decision in SKF USA for guidance

when reviewing requests for voluntary remand.” Order Granting Req. for Voluntary Remand

Without Vacatur, N. Coast Rivers All. v. U.S. Dep’t of the Interior, No. 16-CV-00307, 2016 WL

8673038, at *3 (E.D. Cal. Dec. 16, 2016).

See also Press Release, EPA, supra note 1.

Plaintiffs raise statutory arguments against the rule in their complaint pointing out that the text and

purpose of CWA Section 401 compels EPA to rescind the Certification Rule. Suquamish Compl. ¶¶

77–81. Several of Plaintiffs’ comments on the proposed version of the Certification Rule argue

multiple points of statutory construction, including that EPA’s narrowing of the scope of Section 401

review of applicant activities is not permitted by the CWA. Sierra Club Comments at 8–10 (“PUD

No. 1 . . . was plainly a Chevron step 1 decision, resting on the conclusion that the statutory text was

unambiguous.”); Suquamish Tribe, Comments on Proposed Rule 5–6 (Oct. 21, 2019),

https://www.regulations.gov/comment/EPA-HQ-OW-2019-0405-0926.

Opp’n

to EPA’s

- App.

254 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 12 of 23

ordered EPA to reconsider the Certification Rule in part out of concern that the previous

administration’s regulations were inconsistent with the policy goal of “access to clean … water,” a

primary objective of the CWA. 86 Fed. Reg. 7037; see 33 U.S.C. § 1251(a) (stating that the

objective of the CWA “is to restore and maintain the chemical, physical, and biological integrity of

the Nation’s waters”). Likewise, EPA has stated that it intends to propose revisions to the

Certification Rule to make the regulation “consistent with the cooperative federalism principles

central to CWA section 401” and to “ensur[e] that states are empowered to protect their water

quality.” Goodin Decl. ¶¶ 9, 11, 12, 14.

This case, therefore, clearly presents “an issue as to whether the agency is either compelled

or forbidden by the [CWA] to reach a different” interpretation of Section 401 than the one contained

in the Certification Rule, which provides this Court with good reason and authority to deny remand

in order “to decide the statutory issue.” See SKF USA, 254 F.3d at 1029; see also Util. Solid Waste

Activities Grp. v. EPA, 901 F.3d 414, 436–37 (D.C. Cir. 2018) (declining to remand a claim that

“involve[d] a question—the scope of the EPA’s statutory authority—that [was] intertwined with any

exercise of agency discretion going forward”).

Remand Without Vacatur Is Not in the Interests of Judicial and Administrative

Economy.

The interest of judicial economy weighs against remanding this proceeding without vacatur. 6

Indeed, granting EPA’s motion would likely lead to more litigation and administrative burdens, not

fewer.

If the Certification Rule is remanded without vacatur, several Plaintiffs expect that they could

be or will be forced to engage in additional litigation that would not occur if the instant proceeding

were decided on the merits. At least one Plaintiff—a tribe with authority to adopt its own water

quality standards and issue Section 401 certifications—has expressed concerns that allowing the

Even if remand without vacatur would promote judicial economy, that would not be sufficient

reason for granting EPA’s request. See Order for Supp. Briefing re Req. for Voluntary Remand, N.

Coast Rivers All. v. U.S. Dep’t of the Interior, No. 16-CV-00307, 2016 WL 11372492, at *3 (E.D.

Cal. Sept. 23, 2016) (noting that, even if remand was in the interest of judicial economy, the “Court

can identify no case among those cited by the parties or elsewhere that finds judicial and party

efficiency to be sufficient standing alone”).

Opp’n

to EPA’s

- App.

255 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 13 of 23

Certification Rule to remain on the books between now and 2023 could force it to engage in

litigation over the validity of conditions or denials on Section 401 certifications for specific projects.

Morgan Decl. ¶¶ 19, 24, 25, 27. Should it occur, such litigation could take the form of a challenge to

federal agency attempts to use the Certification Rule to oppose certification decisions, or, more

likely, to defend against industry applicants that attempt to use the Certification Rule to invalidate

conditions or denials or to challenge a certifying agency’s ability to exercise its Section 401

authority over a project. At least one additional Plaintiff will likely need to challenge state

certifications that rely on the illegal provisions in the Certification Rule as a basis for granting

certifications that will not fulfill the CWA’s purpose of protecting water quality. Goldberg Decl. ¶¶

9, 17. EPA itself appears to be cognizant that such litigation may be forthcoming, noting that

Plaintiffs will “continue to have the option to challenge individual 401 certifications or federal

actions taken pursuant to the Certification Rule as they arise” in the prolonged period before the

Certification Rule is revised. EPA Motion at 12.

In addition, the continuation of this case is unlikely to have a substantial impact on EPA’s

resources. The bulk of the responsibility for litigating this case (and therefore the bulk of the

expenditure of resources associated with the litigation) will fall on the Department of Justice, not

EPA. By contrast, as described further below, the administrative costs associated with Certification

Rule itself are quite high. See infra at I.C.

A decision on the merits in this case will help avoid a waste of administrative resources and

judicial resources over the longer term. The Court likely would issue its decision long before EPA’s

2023 date for publishing a final rule and would provide greater clarity for ongoing and future

litigation where any party seeks to rely on the construction of Section 401 adopted in the

Certification Rule. The Court also has an opportunity to provide clarification and guidance to both

Plaintiffs and EPA regarding the meaning of Section 401, and whether or not the terms of the

provision are ambiguous, which will give EPA more direction in its reinterpretation of Section 401

during its forthcoming rulemaking. Alternatively, should the Court decide that the statute is

ambiguous and that the agency is owed deference, clarification regarding the statutory meaning of

Section 401 in this case may persuade the Plaintiffs to avoid re-litigating questions of statutory

Opp’n

to EPA’s

- App.

256 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 14 of 23

construction in future cases. The best way to preserve judicial and administrative resources in both

the short and long term is to decide this case on the merits expeditiously.

Remand Will Unduly Prejudice Plaintiffs.

Astonishingly, EPA acknowledges the problems that leaving the Certification Rule on the

books for such a lengthy period of time will present to Plaintiffs, yet has offered nothing concrete to

demonstrate that those likely and ongoing harms can or will be eliminated. Goodin Decl. ¶¶ 28–30

(stating that EPA “will do what it can” to address the adverse effects of leaving the Certification

Rule on the books for a prolonged period and that “EPA’s efforts may mitigate … potential harms”

caused by agency partners and other stakeholders in their implementation of the Certification Rule)

(emphasis added); see Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 1288 (D.C. Cir. 2000)

(indicating that EPA’s motion for voluntary remand to reconsider a rule was denied because “EPA

made no offer to vacate the rule; thus EPA’s proposal would have left petitioners subject to a rule

they claimed was invalid”).

Far from being “abstract” harms, Plaintiffs and Co-Plaintiffs have already incurred costs

from the Certification Rule and face the prospect of even greater imminent or concrete injuries in the

months to come. For example, among various other potential sources of injury caused by the

Certification Rule, Plaintiff Pyramid Lake Paiute Tribe points to two specific projects for which

certification is likely to be required before the spring of 2023. Morgan Decl. ¶¶ 21, 22, 27. There are

specific conditions it would like to impose on potential grants of certification for these projects that

might be invalid under the Certification Rule. Id. ¶¶ 21, 23–25, 27. For Pyramid Lake Paiute Tribe,

the stakes of an inability to impose these conditions on certification are high.

The first project, the CEMEX Paiute Pit, is a mine that proposes to discharge pollutants into

the Truckee River, which feeds into Pyramid Lake, a precious cultural resource for the Tribe. Id. ¶¶

1, 9, 10, 12, 22, 24. The second project involves sediment removal from a sediment island formed on

the Truckee River behind a federal dam that runs the risk of contaminating Pyramid Lake Paiute

Tribe’s waters with mercury and further sediment deposition. Id. ¶¶ 26, 27. In both cases, the Tribe

is concerned that the Certification Rule’s limitations on the scope of its review will prevent Tribal

Opp’n

to EPA’s

- App.

257 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 15 of 23

administrators from addressing features of these projects that present risks to either the safety of

Tribal members or the quality of the waters within the Reservation boundaries. Id. ¶¶ 23–25, 27.

Threats to the Tribe’s water quality in turn place endangered and threatened wildlife within

the Reservation in peril and risk revenue expenditures for the Tribal government. Id. ¶¶ 10, 11, 20,

23, 26, 27. For example, the Tribe states that, if the Certification Rule remains in force, it may be

unable to stop contamination from projects requiring Construction General Permits which run the

risk of depositing sediment “in the Truckee River delta and impair[ing] the spawning of the

Lahontan Cutthroat Trout and cui-ui.” Id. ¶¶ 18–20. Furthermore, the rule will result in

administrative inefficiencies for Pyramid Lake Paiute Tribe, such as forcing administrative staff to

divert more resources towards information gathering in order to ensure that administrative agencies

have a complete application to review. Id. ¶¶ 14–17.

Plaintiff Columbia Riverkeeper has also identified two specific, environmentally harmful

projects that are far more likely to be certified under Section 401 if the Certification Rule remains

unaltered over the next two years. Goldberg Decl. ¶¶ 2, 7, 8, 16, 17. The first of these projects is the

Middle Fork Irrigation District Project in Oregon, which would negatively impact the quality of

Hood River Basin water and have ruinous consequences for the native bull trout population. Id. ¶¶

3–9. The second project is the Goldendale Energy Storage Hydroelectric Project, which would

permanently destroy sizeable portions of unique waterbodies, place wildlife in peril, and pose

serious risks to sites of cultural significance to tribes. Id. ¶¶ 10–17. Riverkeeper stresses that “[i]f the

Certification Rule is not overturned or revised as soon as possible the damage and disruptions that

result to the waters, land, wildlife, and people along the Columbia River will be long lasting and in

many cases irreversible.” Id. ¶ 18.

Co-Plaintiffs also have attested to a number of ways that the rule will prejudice states across

the country. For example, the pre-filing meeting request requirement is another example of an

unnecessary administrative burden baked into the rule. See 40 C.F.R. § 121.4. That requirement will

lead to inefficiencies by adding thirty days to the certification review process, even in cases where a

more expeditious review would be in the interests of both the applicant and the certifying authority.

States’ Opp’n at II.A.3. Further, Co-Plaintiff States have also described how federal agencies’

Opp’n

to EPA’s

- App.

258 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 16 of 23

exercise of newly claimed authority under the Certification Rule to veto and otherwise undermine

state certifications has resulted in a flood of individual 401 certification requests, putting tremendous

strain on administrative agencies at both the state and federal level. Id. at II.A.2.

EPA’s proposes that Plaintiffs can mitigate this prejudice through piecemeal litigation

against individual certifications. EPA Motion at 12. But this proposed remedy is completely

inadequate. First, this proposal will likely force Plaintiffs to engage in more litigation, not less,

which in turn will waste more of Plaintiffs’ resources, prejudicing them further. See supra at I.B.

Second, lawsuits against individual 401 certifications would run into challenges because those

certifications are issued by states or tribes. Litigation against these certifications would normally

have to occur in state or tribal court. Those courts would not have the authority to remedy the

unlawful constraints of the Certification Rule. Furthermore, challenging the federal action

authorizing the project would not suffice, because the federal agency authorizing the disputed project

would likely argue that it is bound to honor the state’s or tribe’s certification and that plaintiffs

cannot collaterally attack the Section 401 certification through a federal challenge to the federal

permit. By contrast, this Court has the expertise and authority to grant an adequate remedy for the

problems with the Certification Rule.

II.

The Court Should Vacate the Rule Upon Remand.

If the Court decides to remand the Certification Rule, it must vacate the rule. This is, in part,

because EPA has made no showing that “equity demands” remand without vacatur. See Pollinator

Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015) (quoting Idaho Farm Bureau Fed’n

v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995)). To the contrary, rather than being one of the “limited

circumstances” when remand without vacatur is permissible, see Cal. Cmties. Against Toxics v. EPA,

688 F.3d 989, 994 (9th Cir. 2012), here, the Certification Rule is marred by serious legal errors and

the consequences of vacatur would be less disruptive than the consequences of leaving the rule

unaltered. See Pollinator Stewardship Council, 806 F.3d at 532.

Serious Legal Errors Mar the Certification Rule.

EPA’s certification rule contains both substantive and procedural errors, either of which

provide sufficient grounds for vacatur. See Cal. Cmties. Against Toxics, 688 F.3d at 992–93. EPA’s

Opp’n

to EPA’s

- App.

259 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 17 of 23

Certification Rule runs afoul of the text of the CWA and its purpose to restore and protect the

physical, chemical, and biological integrity of the Nation’s waters, 33 U.S.C. § 1251, as well as the

cooperative federalist framework that structures the Act, see U.S. Dep’t of Energy v. Ohio, 503 U.S.

607, 633 (1992) (White, Blackmun, & Stevens, concurring in part), and Section 401, see also S.D.

Warren Co., 547 U.S. at 380. For example, the Certification Rule’s provisions narrowing the scope

of states’ and tribes’ review of the activities of project applicants contradict the Supreme Court’s

interpretation of the unambiguous statutory text of Section 401. See 40 C.F.R. §§ 121.1(f), (n);

121.3; see also PUD No. 1 of Jefferson Cnty., 511 U.S. at 711–13 (interpreting the scope of review

broadly). The Certification Rule also aggrandizes the role of federal agencies in the Section 401

process in manner wholly proscribed by the CWA, by providing them with the ability to ignore some

state and tribal decisions and to limit the timing and scope of state and tribal requests for information

from applicants. See 40 C.F.R. §§ 121.6–121.9; see also City of Tacoma v. FERC, 460 F. 3d 53, 67

(D.C. Cir. 2006) (noting that, on matters of substance, the federal agency’s role is limited to waiting

for the state or tribe’s decision and deferring to it). In addition, the Certification Rule attempts to

significantly limit the number and types of projects for which certification is required. See 40 C.F.R.

§§ 121.1(f); 121.2.

EPA’s promulgation of the Certification Rule was also rife with legal errors because (1) the

agency failed to provide sufficient justification for departing from a half century of practice and

policy related to the interpretation and implementation of Section 401; (2) it based its decision to do

so on an EO aimed at promoting fossil fuel infrastructure, not clean water; and (3) EPA did not

present any explanation for how the Certification Rule would be more protective of water quality.

See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983).

EPA now supports Plaintiffs’ arguments that the Certification Rule suffers from serious legal

errors. The Agency has identified many of the same legal mistakes as Plaintiffs related to such issues

as the rule’s implications for cooperative federalism, the scope of Section 401 review, and the

authority of states and tribes to set timelines for section 401 review. 86 Fed. Reg. at 29,542–43; see

Cal. Cmties. Against Toxics, 688 F.3d at 992–93 (indicating that an agency’s acknowledgment of

Opp’n

to EPA’s

- App.

260 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 18 of 23

legal errors can help to establish the seriousness of a legal error). In addition, the Biden

administration’s rescission of EO 13,868, which mandated revision of EPA’s interpretation of

Section 401 to help foster fossil fuel infrastructure projects, supports Plaintiffs’ claims that the

Certification Rule was promulgated based on impermissible factors unrelated to water quality. See

86 Fed. Reg. at 7041.

EPA’s characterization of these legal errors as “substantial concerns” rather than serious

violations of law is belied by the Agency’s own statements. See 86 Fed. Reg. at 29,542–43. EPA has

expressed certainty that the rule must be revised for many of the same reasons that Plaintiffs point to.

EPA Motion at 5, 12 (stating that “EPA will draft new regulatory language” and that the agency

intends to address Plaintiffs’ concerns on remand) (emphasis added); Goodin Decl. ¶¶ 9, 11 (stating

that EPA “will . . . propose revisions to the rule” and that the agency “intends to . . . revise the

Certification Rule . . . consistent with the cooperative federalism principles central to CWA section

401”) (emphasis added). This point is crucial: in assessing the seriousness of a legal error, the Court

must consider whether or not the rule is likely to remain the same after the agency supplements its

reasoning, or whether “such fundamental flaws in the agency’s decision make it unlikely that the

same rule would be adopted on remand.” Pollinator Stewardship Council, 806 F.3d at 532. 7 Here,

the agency has admitted that there is no chance the same rule will be promulgated following remand,

meaning that it should be vacated if remand is granted.

In summary, the Certification Rule is marred by serious violations of the CWA and

Administrative Procedure Act. This Court should not allow a rule that is contrary to law and

arbitrary and capricious to remain in force for years.

Plaintiffs contend that EPA’s concessions about the errors in the rule combined with the flaws on

the face of the rule are sufficient to hold the rule invalid and immediately vacate it. See Cal.

Communities Against Toxics, 688 F.3d at 993 (holding rule invalid based on EPA’s concessions as

confirmed by the record). Should this Court rule otherwise, Plaintiffs reserve their right to argue for

the invalidity of the rule through a fully developed motion for summary judgment in this proceeding

in accordance with a schedule set by the court and in forthcoming proceedings.

Opp’n

to EPA’s

- App.

261 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 19 of 23

Vacatur of the Certification Rule Is the Less Disruptive Option.

The Court should vacate the Certification Rule upon remand to avoid disruption and return to

the status quo ante. See Pollinator Stewardship Council, 806 F.3d at 532 (vacating an agency action

that was itself disruptive). The Section 401 regulations and guidance in effect prior to the

promulgation of the rule worked well, allowing most applications for certification filed each year to

be processed promptly. According to EPA’s own documents, from 2013 to 2018, an average of

4,266 individual and 58,766 general federal permits requiring Section 401 certification were issued

per year. EPA, EPA ICR No. 2603.02, ICR Supporting Statement, Information Collection Request

for Updating Regulations on Water Quality Certification Proposed Rule, Docket ID No. EPA-HQ-

OW-2019-0405-0070, at 8 (Aug. 2019). As recently as 2019, EPA conceded that denials of permits

under Section 401 were “uncommon” and that decisions on certification requests typically occurred

within the period of time contemplated by Congress. EPA, Economic Analysis for the Clean Water

Act Section 401 Certification Rule, Docket ID No. EPA-HQ-OW-2019-0405-1125, at 15 (May

2020). Delays in processing Section 401 applications most commonly occurred because of

“incomplete certification requests.” Id.

Even if EPA could somehow demonstrate that vacating the rule would lead to serious

disruptions, which it cannot, that evidentiary showing alone would not be a sufficient basis for

keeping a legally invalid rule on the books. See Se. Alaska Conservation Council v. U.S. Forest

Serv., 468 F. Supp. 3d 1148, 1155 (D. Alaska 2020) (finding that although vacatur would cause

economic harm to the timber industry, that harm was “not so disruptive and irremediable so as to

cause the Court to depart from the APA’s normal remedy of vacatur”); Nat’l Family Farm Coal. v.

EPA, 960 F.3d 1120, 1144–45 (9th Cir. 2020) (vacating an agency action, even though doing so

would result in significantly costly consequences for farmers, because it was characterized by

“multiple” legal errors). EPA would need to demonstrate that the disruptive consequences of vacatur

are massive—so much so that they outweigh both the major legal errors contained in the

Certification Rule and the disruptive consequences of failing to vacate the rule. Compare Nat’l Fam.

Farm Coal., 960 F.3d at 1144–45 (ordering vacatur despite disruptive consequences where the

agency action was characterized by “multiple errors” and “fundamental flaws”), and Pollinator

Opp’n

to EPA’s

- App.

262 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 20 of 23

Stewardship Council, 806 F.3d at 532 (ordering vacatur where failing to do so would threaten bee

populations and “risk more potential environmental harm than vacating it”) with Cal. Cmties.

Against Toxics, 688 F.3d at 993–94 (denying vacatur where vacatur would delay the construction of

a power plant which would result in blackouts, create air pollution, place at risk a billion-dollar

investment and hundreds of jobs, and necessitate the passage of new state legislation). The agency

cannot make this showing. Vacatur of the Certification Rule certainly will not have consequences on

par with the type of enormous and irremediable social, environmental, and economic disruptions that

the Ninth Circuit has concluded prohibit vacatur. See Cal. Cmties. Against Toxics, 688 F.3d at 993–

94.

Indeed, as in Pollinator Stewardship Council, here harm, and particularly harm to the

environment, would be caused by a failure to vacate the Certification Rule. See 806 F.3d at 532

(vacating an EPA action on the grounds that a failure to do so would place populations of bees at

risk). Just as in Pollinator Stewardship Council, Plaintiffs have identified endangered and threatened

species of fish that they are concerned would be placed at risk between now and the spring of 2023

by a failure to vacate the Certification Rule. Morgan Decl. ¶¶ 10, 20, 23, 26, 27; Goldberg Decl. ¶¶

4, 7. They have also identified other types of environmental harms tied to projects slated for Section

401 review between now and the spring of 2023. These imminent environmental harms include

threats to air quality, water bodies, and the aesthetic character of affected areas. See, e.g., Morgan

Decl. ¶ 25; Goldberg Decl. ¶¶ 6, 12, 15. And much of this harm, should it occur, would be

irreparable. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987) (“Environmental

injury, by its nature … is often permanent or at least of long duration, i.e., irreparable.”).

The Certification Rule also places unique cultural resources of tribes at risk. See, e.g.,

Goldberg Decl. ¶ 14 (discussing threats to the Confederated Tribes and Bands of the Yakama

Nation). For instance, Pyramid Lake Paiute Tribe has explained how keeping the Certification Rule

in effect could result in pollution to Pyramid Lake, an irreplaceable cultural resource for the Tribe.

Morgan Decl. ¶¶ 1, 9, 10, 20, 24, 26, 27. The Tribe also relies on the health of Pyramid Lake for

revenue from its fishing and recreational industries. Id. ¶ 11.

Opp’n

to EPA’s

- App.

263 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 21 of 23

In addition, Pyramid Lake Paiute Tribe has described how the Certification Rule would

create obstacles to routine Section 401 reviews of Construction General Permits. Id. ¶¶ 18–20. The

Tribe notes that the regulation would cause a significant resource strain on their already-taxed staff

by upending the Tribe’s standard practices and procedures for information-gathering for all Section

401 certification reviews for projects affecting the waters of the Pyramid Lake Reservation. Id. ¶¶

13–17.

These significant disruptions to Plaintiffs represent a small sampling of the nationwide chaos

unleashed by the Certification Rule. See, e.g., States’ Opp’n at II.A.2. For example, as Co-Plaintiffs

demonstrate in their papers, the Army Corps of Engineers has relied on the Certification Rule to

reject the certification decisions and conditions of many states for sixteen nationwide CWA permits

related to “oil and gas pipelines, surface coal mining, residential development, and various

aquaculture activities.” Id. Absent vacatur of the rule, this federal override of state Section 401

authority has led and will continue to lead to substantially increased administrative burdens on both

state agencies and the Corps for years, along with harms that can be expected to result from

additional obstacles to the efficient environmental regulation of these important areas of the

economy. Id.

The magnitude of the legal errors contained in the regulation and the severity of the

disruptions that would be caused by failing to vacate the rule far outweigh the magnitude of the

disruption caused by nullifying the Certification Rule. The damage caused by leaving an illegal rule

in effect for at least eighteen months will be significant and include the precise harms to water

quality that the CWA was designed to avoid. EPA has not made the showing necessary to justify

having a large number of projects reviewed under the unlawful regime created by the Certification

Rule or expending the judicial and administration resources necessary to attempt to ensure that those

certification processes comply with the CWA as Congress intended. The Court should deny EPA’s

motion to remand without vacatur.

Opp’n

to EPA’s

- App.

264 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 22 of 23

CONCLUSION

For the reasons stated above, Plaintiffs respectfully ask the Court to deny EPA’s motion for

remand without vacatur, or, in the alternative, only grant EPA’s motion for remand if the Court

vacates the Certification Rule.

DATED: July 26, 2021

Respectfully submitted,

/s/ Moneen Nasmith

MONEEN NASMITH (NY Bar # 4427704)

[Admitted Pro Hac Vice]

MICHAEL YOUHANA (NY Bar # 5819032)

[Admitted Pro Hac Vice]

Earthjustice

48 Wall Street, 15th Floor

New York, NY 10005

(212) 845-7384 / (212) 284-8033

mnasmith@earthjustice.org

myouhana@earthjustice.org

KRISTEN L. BOYLES (CA Bar #158450)

Earthjustice

810 Third Avenue, Suite 610

Seattle, WA 98104

(206) 343-7340

kboyles@earthjustice.org

GUSSIE LORD (DC Bar # 1009826)

[Admitted Pro Hac Vice]

Earthjustice

633 17th Street, Suite 1600

Denver, CO 80202

(720) 402-3764

glord@earthjustice.org

THOMAS S. WALDO (AK Bar # 9007047)

[Admitted Pro Hac Vice]

OLIVIA GLASSCOCK (AK Bar # 1809072)

[Admitted Pro Hac Vice]

Earthjustice

325 4th Street

Juneau, AK 99801

(907) 500-7123 / (907) 500-7134

twaldo@earthjustice.org

oglasscock@earthjustice.org

Attorneys for Plaintiffs

Opp’n

to EPA’s

- App.

265 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 145 Filed 07/26/21 Page 23 of 23

NATHAN MATTHEWS (CA Bar #264248)

Sierra Club

2101 Webster Street, Suite 1300

Oakland, CA 94612

(415) 977-5695

nathan.matthews@sierraclub.org

Local Counsel and Attorney for Sierra Club

Opp’n

to EPA’s

- App.

266 Mot.

- for Remand Without Vacatur (3:20-cv-04636-WHA and consolidated cases)

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 1 of 32

ROB BONTA

Attorney General of California

SARAH E. MORRISON

ERIC KATZ

Supervising Deputy Attorneys General

CATHERINE M. WIEM AN, SBN 222384

TATIANA K. GAUR, SBN 246227

ADAM L. LEVITAN, SBN 280226

BRYANT B. CANNON, SBN 284496

LANI M. MAHER, SBN 318637

Deputy Attorneys General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

Telephone: (213) 269-6329

Fax: (916) 731-2128

E-mail: Tatiana.Gaur@doj.ca.gov

Attorneys for Plaintiff State of California, by

and through Attorney General Rob Bonta and

the State Water Resources Control Board

[Additional Plaintiffs and Counsel Listed on

Signature Pages]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ROBERT W. FERGUSON

Attorney General of Washington

KELLY T. WOOD (admitted pro hac vice)

GABRIELLE GURIAN (admitted pro hac vice)

Assistant Attorneys General

Washington Office of the Attorney General

Ecology Division

2425 Bristol Court SW

Olympia, Washington 98501

Telephone: (360) 586-5109

E-mail: Kelly.Wood@atg.wa.gov

Attorneys for Plaintiff State of Washington

In Re

Clean Water Act Rulemaking

CASE NO. 20-cv- 04636-WHA

(consolidated)

Applies to all actions

PLAINTIFF STATES’ OPPOSITION

TO DEFENDANTS’ MOTION FOR

REMAND WITHOUT VACATUR

COURTROOM: 12, 19TH FLOOR

DATE: AUGUST 26, 2021

TIME: 12:00 PM (via telephone)

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

- App. 267 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 2 of 32

TABLE OF CONTENTS

INTRODUCTION ................................................................................................ 1

II.

ARGUMENT ........................................................................................................ 2

A. Remand Without Vacatur Is Improper Because It Will Unduly Prejudice

the Plaintiff States. ........................................................................................ 2

The 2020 Rule’s limitation on the scope of section 401 review results

in the elimination of critical environmental protections ........................ 3

The 2020 Rule will continue to wreak havoc on the “nationwide”

permit system ......................................................................................... 8

Countless other harms to Plaintiff States are occurring—and will

continue to occur—as a result of the 2020 Rule .................................. 11

B. Remand Without Vacatur Does Not Advance Judicial Economy in This

Case. ............................................................................................................ 14

C. If the Court Determines That Remand of the 2020 Rule is Appropriate, it

Should Be With Vacatur. ............................................................................ 17

III.

EPA has conceded that the 2020 Rule must be revised because of its

legal deficiencies.................................................................................. 19

Remand without vacatur will be significantly more harmful than any

harm resulting from vacating the rule. ................................................. 20

CONCLUSION................................................................................................... 22

___________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

- App. 268 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 3 of 32

TABLE OF AUTHORITIES

Cases

All. for the Wild Rockies v. U.S. Forest Serv.,

907 F.3d 1105 (9th Cir. 2018) ............................................................................................ 17

Am. Waterways Operators v. Wheeler,

427 F. Supp. 3d 95 (D. D.C. 2019) ...................................................................................... 2

American Forest Resource Council v. Ashe,

946 F. Supp. 2d (D. D.C. 2013) ......................................................................................... 15

ASSE Int’l, Inc. v. Kerry,

182 F. Supp. 3d 1059 (C.D. Cal. 2016)........................................................................ 18, 20

Burke v. Coggins,

No. 20-667, 2021 U.S. Dist. LEXIS 29999, (D.D.C. Feb. 18, 2021) ................................ 21

Cal. Cmtys. Against Toxics v. EPA,

688 F.3d 989 (9th Cir. 2012) ........................................................................................ 17, 19

Cf. Am. Forest Res. Council v. Ashe,

946 F. Supp. 2d 1 (D.D.C. 2013) ....................................................................................... 21

Cf. Klamath Siskiyou Wildlands Ctr. v. Grantham,

642 F. App’x 742 (9th Cir. 2016) ...................................................................................... 22

Chlorine Chemistry Council v. EPA,

206 F.3d 1286 (D.C. Cir. 2000) ........................................................................................... 2

Ctr. For Native Ecosystems v. Salazar,

795 F. Supp. 2d 1236 (D. Colo. 2011) ......................................................................... 18, 22

Farmworker Ass’n of Fla. v. EPA,

No. 21-1079, 2021 U.S. App. LEXIS 16882 (D.C. Cir. June 7, 2021).............................. 18

FBME Bank v. Jacob Lew,

142 F. Supp. 3d 70 (2015) .................................................................................................. 15

Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin.,

109 F. Supp. 3d 1238 (N.D. Cal. 2015) ............................................................................. 18

League of Women Voters of U.S. v. Newby,

838 F.3d 1 (D.C. Cir. 2016) ............................................................................................... 16

N. Coast Rivers All. v. U.S. Dep’t of the Interior,

No. 1:16-cv-00307-LJO-MJS, 2016 WL 8673038 (E.D. Cal. Dec. 16, 2016). ........... 17, 19

___________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

- App. 269 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 4 of 32

Nat. Res. Def. Council v. U.S. Dep’t of Interior,

275 F. Supp. 2d 1136 (C.D. Cal. 2002) ............................................................................. 20

Paulsen v. Daniels,

413 F.3d 999 (9th Cir. 2005) .............................................................................................. 20

Pollinator Stewardship Council v. EPA,

806 F.3d 520 (9th Cir. 2015) ........................................................................................ 18, 20

PUD No. 1 of Jefferson Cy. v. Dept. of Ecology,

511 U.S. 700 (1994) ......................................................................................................... 3, 4

Utility Solid Waste Activities Group v. EPA,

901 F.3d 414 (D.C. Cir. 2018) ................................................................................. 2, 14, 15

Statutes

33 U.S.C. § 1251(a), (b) ......................................................................................................... 22

33 U.S.C. § 1341 ...................................................................................................................... 1

33 U.S.C. § 1341(a)(1) ............................................................................................................. 8

33 U.S.C. § 1344(e) .................................................................................................................. 8

33 U.S.C. § 1344(e)(2) ............................................................................................................. 8

H.R. Rep. No. 91-127 (1969) ................................................................................................... 4

Regulations

33 C.F.R. § 330.1(b) ................................................................................................................. 8

40 C.F.R. § 121.5(b) ............................................................................................................... 13

40 C.F.R. §§ 121.1(f), (n); 121.3.............................................................................................. 4

Other Authorities

85 Fed. Reg. 42,227 (July 13, 2020) ...................................................................................... 16

85 Fed. Reg. at 42,273 (July 13, 2020) .................................................................................. 13

86 Fed. Reg. 2,744 (Mar. 15, 2021) ......................................................................................... 8

Exec. Order No. 13,990 ............................................................................................................ 1

iii

___________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

- App. 270 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 5 of 32

INTRODUCTION

In September of 2020, the Environmental Protection Agency’s final Clean Water Act

Section 401 Certification Rule took effect, drastically curtailing state authority under section

401 of the Clean Water Act, 33 U.S.C. § 1341. Because of the significant harms to state fiscal

and natural resources posed by the 2020 Rule, the undersigned States filed the current action

challenging the rule as violative of the Administrative Procedure Act and the Clean Water Act.

Following the new Presidential Administration’s statements that it would review the 2020 Rule

to determine compliance with an executive order on improving public health and protecting

the environment, Exec. Order No. 13,990, the States agreed to stay the case pending EPA’s

decision on what, if any, actions it would take upon the conclusion of its review. EPA has now

made its decision, announcing its intent not to repeal, but to revise, the 2020 Rule and

committing only to an “expected” spring 2023 completion date. EPA seeks remand of the 2020

Rule without vacatur, leaving the Rule in place for at least an additional two years and causing

significant harms to the States during that time. Moreover, EPA seeks dismissal of the States’

legal challenge with prejudice, permanently insulating the 2020 Rule from judicial review.

The States support EPA’s efforts to revisit the 2020 Rule and certainly share the

substantial concerns EPA itself raises as to the Rule’s lawfulness. The States, however, oppose

EPA’s remand motion and urge the Court to establish an expedited briefing schedule on the

merits at the Court’s earliest convenience. EPA’s assertion that remand will have “limited”

prejudicial effect on the States’ interests is demonstrably false. As documented in the States’

declarations and outlined below, the harms that will flow from the continued application of the

2020 Rule over the next two years are severe and potentially irreversible. Indeed, significant

harms that greatly prejudice the States and the States’ co-Plaintiffs in this case are already

occurring. Moreover, no judicial economy is gained by forcing piecemeal litigation of 401

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 2 of 29

- App. 271 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 6 of 32

certification decisions over the next several years. As such, the Court should deny EPA’s

request for remand, lift the litigation stay, and proceed to the merits.

If, however, the Court is inclined to grant EPA’s remand request, the Court should

exercise its equitable discretion to remand the rule with vacatur. While EPA claims that it seeks

remand of the Rule without confessing error, EPA’s statements about the 2020 Rule indicate

its agreement with the States’ core argument on the Rule’s invalidity; i.e., that the Rule is

inconsistent with both the case law and the Clean Water Act’s careful preservation of state

authority to protect water resources. Because the errors here are significant and no disruptive

consequences would result from vacating the Rule, any remand should be with vacatur.

II.

ARGUMENT

Remand Without Vacatur Is Improper Because It Will Unduly Prejudice the

Plaintiff States.

While an agency’s stated intent to revisit a challenged rule is a necessary condition to

obtain remand, “it is not always a sufficient condition.” Am. Waterways Operators v. Wheeler,

427 F.Supp.3d 95, 98–99 (D. D.C. 2019). Courts have “broad discretion” to grant or deny an

agency’s remand request and, in exercising that discretion, routinely deny remand when it

would “unduly prejudice the non-moving party.” See Utility Solid Waste Activities Group v.

EPA, 901 F.3d 414, 436 (D.C. Cir. 2018), citing FBME Bank Ltd. v. Lew, 142 F.Supp.3d 70,

73 (D. D.C. 2015). Courts have also denied agency requests for voluntary remand where the

agency does not propose to vacate the rule and plaintiffs are left “subject to a rule they claimed

was invalid.” Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 1288 (D.C. Cir. 2000).

Here, EPA fails to justify its request for remand because harms to the States from the

2020 Rule are both significant and already occurring. Every day, Plaintiff States receive

requests for 401 certifications, with some individual states handling thousands of certification

requests per year. Declaration of Scott E. Sheeley in Support of Plaintiff States’ Opposition to

Defendants’ Motion for Remand Without Vacatur (Sheeley Decl.) ¶ 23; Declaration of Eileen

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 3 of 29

- App. 272 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 7 of 32

Sobeck in Support of Plaintiff States’ Opposition to Defendants’ Motion for Remand Without

Vacatur (Sobeck Decl.) ¶¶ 9–10; Declaration of Paul Wojoski in Support of Plaintiff States’

Opposition to Defendants’ Motion for Remand Without Vacatur (Wojoski Decl.) ¶ 8;

Declaration of Loree’ Randall in Support of Plaintiff States’ Opposition to Defendants’ Motion

for Remand Without Vacatur (Randall Decl.) ¶ 5. Between now and EPA’s estimated

completion of a revised rule in 2023, the 21 States challenging the Rule in this action will

receive and process thousands of 401 certification requests.1 See, e.g., id. All of those requests

are (or will be) governed by the illegal and restrictive 2020 Rule—a rule that, even by EPA’s

own reckoning, fails to adhere to the cooperative federalism principles embodied within the

Clean Water Act and significantly impairs the States’ abilities to protect water quality. EPA

Motion for Remand at 7 (EPA Br.). As set out below, far from having “limited” impacts, the

2020 Rule is causing (and will continue to cause) detrimental effects to water quality and State

resources. Because the States will be severely prejudiced if the Rule is allowed to stand while

EPA conducts a multi-year revision process, the Court should deny EPA’s request for remand

and allow the parties to proceed to the merits.

The 2020 Rule’s limitation on the scope of section 401 review results in the

elimination of critical environmental protections

First, the 2020 Rule hamstrings state authority under the Clean Water Act and

undermines—or in some cases eliminates—state environmental protections that have been

applied to control the water quality impacts of federally approved projects for decades. Prior

to the 2020 Rule, section 401 certifications considered all potential water quality impacts of a

proposed project, both direct and indirect and over the project’s full operational life. See PUD

No. 1 of Jefferson Cy. v. Dept. of Ecology, 511 U.S. 700 (1994) (PUD No. 1). Parallel to that

scope, and consistent with the Clean Water Act’s requirement that section 401 certifications

In addition to the Plaintiff States, tribal plaintiffs expect to receive a substantial

number of requests for 401 certification during the same period.

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 4 of 29

- App. 273 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 8 of 32

include “any” conditions necessary to assure compliance with “appropriate” requirements of

state law, state section 401 certification conditions long sought to assure that all aspects of a

proposed project would comply with applicable state water quality laws. See e.g., Wojoski

Decl. ¶¶ 16–22; Randall Decl. ¶ 6, Declaration of Paul Comba in Support of Plaintiff States’

Opposition to Defendants’ Motion for Remand Without Vacatur (Comba Decl.) ¶¶ 4, 11. Thus,

for example, there was no question that a state could impose minimum flow conditions on a

dam to protect aquatic species habitat even if those conditions were not directly associated

with any specific point source discharge from the dam. See PUD No. 1, 511 U.S. at 711–12.

Or, states might include erosion and sediment control measures designed to address nutrient

and sediment pollution. Wojoski Decl. ¶¶ 18–20. That broad scope of state 401 certification

review and conditions has long been viewed as the cornerstone of the Clean Water Act’s

system of cooperative federalism and reflected the incontrovertible fact that Congress intended

section 401 to “provide reasonable assurance . . . that no license or permit will be issued by a

federal agency for any activity … that could in fact become a source of pollution.”2

The 2020 Rule unlawfully guts this authority. In conflict with Supreme Court precedent

and decades of EPA’s own legal analysis, the 2020 Rule purports to limit state review to only

the narrow range of water quality impacts from a project that relate to specific, point-source

discharges to certain narrowly-defined “waters of the United States.” 40 C.F.R. §§ 121.1(f),

(n); 121.3. Thus, when it comes to federally licensed or permitted projects, the 2020 Rule has

greatly complicated—if not eliminated—the use of section 401 as a tool for assessing and

addressing water quality impacts from non-point sources to state waters and wetlands. Further,

the 2020 Rule, for the first time in section 401’s history, prohibits states from modifying

existing certification conditions to adapt to changing circumstances such as a change in water

quality standards.

H.R. Rep. No. 91-127, at 24 (1969), reprinted in 1970 U.S.C.C.A.N. 2691, 2697.

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 5 of 29

- App. 274 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 9 of 32

These impacts on state water resources occur across a wide spectrum of activities

requiring approvals from various federal agencies, but are perhaps most acutely felt in the

context of hydropower licensing and relicensing. In addition to point source impacts, dams are

significant sources of non-point water pollution. Randall Decl. ¶ 7. Without proper mitigation

measures, dams cause increased water temperature resulting from decreased water flows

within streams and decreased flow rates as a result of ponding behind dam structures.

Randall Decl. ¶ 7; Declaration of Corbin J. Gosier in Support of Plaintiff States’ Opposition to

Defendants’ Motion for Remand Without Vacatur (Gosier Decl.) ¶ 13; Sobeck Decl. ¶¶ 76,

79–80. Dam structures alter flow in rivers and creeks downstream of hydroelectric dams, cause

fluctuations of water levels within the impoundment created by dams, kill fish passing through

hydroelectric turbines, and prevent the upstream movement of fish and other water or wetland-

dependent wildlife. Gosier Decl. ¶ 13; Sobeck Decl. ¶¶ 79, 80. Dam reservoirs also lead to

vegetation loss, reducing shading and increasing temperatures, and wave impacts caused by

reservoir creation increase turbidity and sedimentation. Randall Decl. ¶ 7; Sobeck Decl.

¶ 79–80. These impacts from dam structures and operations, in turn, can result in a host of

adverse impacts, including further temperature increases, smothered aquatic habitat,

interference with predation patterns, and lower oxygen levels. Randall Decl. ¶ 7; Gosier Decl.

¶ 15; Sobeck Decl. ¶ 76, 79–80. Increased turbidity triggered by dams can also cause an

increase in toxin mobility, including PCBs and other “forever chemicals,” due to increased

absorption of these chemicals by sediment particles. Randall Decl. ¶ 7.

Typically, states and tribes have relied on the section 401 certification process to

mitigate or eliminate these and other impacts. For example, certifying authorities included in

401 certifications requirements to mitigate vegetation loss, geoengineer shorelines to decrease

erosion, and ensure reservoir discharge points are lower in the water column where

temperatures are lower. Randall Decl. ¶ 8; Gosier Decl. ¶ 15; Sobeck Decl. ¶ 78. Additionally,

because hydropower licenses can last up to 50 years, the ability to revisit and modify 401

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 6 of 29

- App. 275 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 10 of 32

certifications to adapt to changing conditions (such as modifications to state water quality

standards) provided states with a critical means to adjust conditions for these long-term

projects as new research and data establish needs for further or modified protections.3 Randall

Decl. ¶¶ 9–10; Gosier Decl. ¶¶ 11, 15; Sobeck Decl. ¶¶ 72, 78, 81.

The 2020 Rule substantially frustrates these efforts, resulting in severe harm to states

and tribes. While some states will continue to attempt to apply section 401 as broadly as

possible, the fact remains that they do so against the headwind of the 2020 Rule’s unlawful

limitation on scope and the use of “reopener” clauses, among other detrimental provisions. At

best, the 2020 Rule will result in scores of lawsuits related to individual 401 certification

decisions. At worst, critical protections of water resources may be eliminated from federally

approved projects altogether.

Far from being hypothetical, these impacts will occur during EPA’s reconsideration of

the 2020 Rule, with numerous relicensings set to take place in multiple Plaintiff States if the

2020 Rule is in effect for the next two years. Randall Decl. ¶ 10; Gosier Decl. ¶ 23; Sobeck

Decl. ¶ 73. And, because FERC licenses for dams will last between 30-50 years, the lack of

adequate water quality conditions attached to these licenses will have adverse impacts for a

generation. Randall Decl. ¶ 11; Sobeck Decl. ¶ 72. For instance, in Washington alone three

hydropower dams on the Skagit River will require 401 certifications between now and the

spring of 2023, well within EPA’s estimate of how long the 2020 Rule will remain in effect.

Randall Decl. ¶ 10. The Skagit is home to numerous anadromous fish species, including

Chinook salmon—a threatened species and the primary source of food for the endangered

This practice was long permitted as a practical and necessary part of section 401

authority, but is now prohibited by the 2020 Rule. 85 Fed. Reg. 42,280 (July 13, 2020) citing

40 C.F.R. § 121.6(e).

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 7 of 29

- App. 276 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 11 of 32

Southern Resident Orca population in Puget Sound.4 Id. Because Chinook and other salmonids

are extremely sensitive to thermal stress, even relatively small temperature increases cause

intense physical distress, with most perishing once water temperatures reach the upper 70

degrees Fahrenheit. Id. As such, Washington relies on its section 401 authority to impose

conditions to minimize adverse thermal pollution (among other) impacts and as a key part of

its Southern Resident Orca recovery efforts. Id. Similarly, New York is currently reviewing 40

hydropower project relicensings, at least 10 of which have pending section 401 requests or are

anticipated to file request in the near future. Gosier Decl. ¶ 23.

Other states will suffer similar impacts. Like much of the West, California is

experiencing extreme drought conditions and is struggling to maintain its rivers at a

temperature habitable for salmonids and native fishes. Sobeck Decl. ¶¶ 53, 79–80. Even under

non-drought conditions, temperature management is a material issue in most FERC-related

certifications where inaction for decades could result in permanent water quality impairments

and impacts to threatened, endangered, or other aquatic species of concern. Id. ¶ 79. The 2020

Rule hamstrings California’s efforts to address temperature and other impacts resulting from

hydropower operations. It may be too late to provide the water quality protections at all in

some cases if the 2020 Rule is left standing until 2023. Id. ¶ 81. North Carolina regularly relied

on section 401 to control nutrient loading and excess sedimentation, two of the most harmful

threats to North Carolina’s water quality and the cause of many of the impacts discussed above,

including destruction of aquatic habitat and increased pollution transport. Wojoski Decl.

¶¶ 19–22, 33. Colorado estimates that the vast majority of conditions it utilizes under section

401 to control adverse water quality impacts from water supply projects to streams and

reservoirs (like increased temperatures, reduced flows and higher metal concentrations) are

Southern Resident Orcas are in severe decline and threatened with extinction. The

iconic Puget Sound population is down to only 73 individuals, its lowest level in over four

decades. Randall Decl. ¶ 10.

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 8 of 29

- App. 277 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 12 of 32

called into question by the 2020 Rule. Declaration of Aimee M. Konowal in Support of

Plaintiff States’ Opposition to Defendants’ Motion for Remand Without Vacatur (Konowal

Decl.) ¶¶ 3–6.

As these examples demonstrate, the 2020 Rule will impede Plaintiff States’ ability to

apply water quality protections that have long been utilized to mitigate harms against multiple

projects that will be permitted over the next two years.

The 2020 Rule will continue to wreak havoc on the “nationwide” permit

system

The 2020 Rule is also causing ongoing harms related to the re-certification of the socalled “nationwide” permits issued by the U.S. Army Corps of Engineers (the Corps)—harms

that will be repeated in dozens of general permit actions in the two years EPA expects it will

take to revise the 2020 Rule. The Corps issues nationwide permits for activities occurring under

section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899 and

that have “minimal impacts” to water quality. 33 U.S.C. § 1344(e); 33 C.F.R. § 330.1(b).

Nationwide permits are considered “general” permits, and certifying authorities typically make

programmatic section 401 decisions that apply to all activities within their respective

jurisdictions issued under a nationwide permit, thereby eliminating the need for project

proponents covered under such a permit to seek individual section 401 certifications. Randall

Decl. ¶ 13. Nationwide permits are usually valid for periods of 5 years, after which they must

be renewed. 33 U.S.C. § 1344(e)(2). Renewal triggers the need for re-certification under

section 401. 33 U.S.C. § 1341(a)(1).

Shortly after EPA finalized the 2020 Rule, the Corps moved forward with the final

steps necessary to re-issue and re-certify the Nationwide Permit Program, including 16

nationwide permits covering oil and gas pipelines, surface coal mining, residential

development, and various aquaculture activities. See 86 Fed. Reg. 2,744 (Mar. 15, 2021);

Randall Decl. ¶ 14. The Corps expects to renew the remaining 40 nationwide permits in the

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 9 of 29

- App. 278 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 13 of 32

next two years. Wojoski Decl. ¶ 30; Randall Decl. ¶ 24. Citing the 2020 Rule as justification,

the Corps upended the nationwide permit system for these permits. To begin with, and as

recently explained by the Council on Environmental Quality (CEQ), the Corps’ expedited

process for 401 certification of the nationwide permits was “unusual” and significantly

curtailed state authority and input throughout the process. Randall Decl. ¶¶ 14–17, Ex. E. As

CEQ noted, “[t]he timing for renewal of the permits occurred earlier than in previous renewals,

401 certification was requested on proposed permits rather than final ones, and requests for

extensions of the reasonable period of time by which to submit 401 certifications were

declined.” Id.

Despite the fact that the Clean Water Act requires federal agencies to accept 401

certification decisions as written, the Corps relied on the 2020 Rule to require states to review

certification requests and issue decisions within an unprecedented short review window, force

states to certify draft permits, “declined to rely” on certifications based on its determination

that certifications contained “reopener” clauses and, in one case, declared waiver of state

certification authority based on a state’s inadvertent omission of written explanations for

certification conditions. Randall Decl. ¶ 14, 18; Declaration of Rebecca Roose in Support of

Plaintiff States’ Opposition to Defendants’ Motion for Remand Without Vacatur (Roose Decl.)

¶ 22, Wojoski Decl. ¶¶ 5, 26–28, Sheeley Decl. ¶ 31; Sobeck Decl. ¶ 17. As a result of the

2020 Rule, the Corps invalidated state certification decisions and conditions for these 16

nationwide permits throughout a wide swath of the country, including multiple Plaintiff States.

The Corps’ application of the Rule also led to the complete loss of section 401 authority for

multiple permits in several states.

The Corps’ actions on the nationwide permits and pursuant to the 2020 Rule have

significant consequences absent reinstatement of prior procedures. For one, without

programmatic 401 certifications for these permits, projects that would otherwise qualify for

streamlined permit procedures must be processed individually—defeating the purpose of the

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 10 of 29

- App. 279 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 14 of 32

nationwide permit system and overwhelming both Corps staff and state certifying authorities.

Randall Decl. ¶¶ 19–20; Roose Decl. ¶ 22; Sobeck Decl. ¶ 17. For example, in Washington,

the invalidation of the nationwide aquaculture permits resulted in a flood of individual 401

certification requests for shellfish growing operations. Randall Decl. ¶ 20. Because the planting

of shellfish seed must occur during specific, narrow windows of the growing season, timely

permitting is essential, and the failure to begin these projects during the limited planting

window can doom a grower for a season or even permanently. Id. ¶ 21. To meet the

unprecedented demand for individual aquaculture permits and associated certification requests,

Washington was forced to hire new staff and reassign existing employees. Id. ¶ 22. While this

expenditure of extra resources has allowed Washington to keep pace with the surge (for now),

the Corps has been unable to keep up with this increase and has notified Washington and its

growers of a potential two-year delay in processing individual permits, which may force a

number of growers out of business. Randall Decl. ¶ 23.

Similarly, California projects that the Corps’ invalidation of California’s general water

quality certifications of the Corps’ nationwide permits, purportedly due to the 2020 Rule, will

require California to process approximately 135 additional individual water quality

certifications that would otherwise have been addressed by the general water quality

certifications. Sobeck Decl. ¶ 17. California estimates that this will require an additional

workload of almost two full-time staff who would otherwise have been devoted to working on

higher water quality priorities for California. Id. Yet, not all states facing these challenges have

the funding necessary to hire new staff and thus are forced to choose between the various

federal permitting actions when allocating limited water quality certification resources. See

Roose Decl. ¶ 23.

Moreover, waiver determinations made by the Corps have effectively eliminated—and

likely will continue to eliminate—section 401 authority altogether. For instance, in North

Carolina the Corps used the 2020 Rule to declare waiver and refuse to accept North Carolina’s

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 11 of 29

- App. 280 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 15 of 32

denial of certification for seven nationwide permits based on the state’s inadvertent failure to

include the rationale for the denial during the rushed and unusual 2020 nationwide certification

process.5 Wojoski Decl. ¶¶ 28–29. When North Carolina tried to remedy its omission, the

Corps stated that it had “no choice” under the 2020 Rule other than to declare waiver. Wojoski

Decl. ¶ 28, Attachment A. Three of these permits are final, and North Carolina expects the

other four to be final in the coming months. Wojoski Decl. ¶ 28. As a result of the Corps’

waiver decision under the 2020 Rule, North Carolina is prevented from using its section 401

authority to apply state water quality requirements to projects covered under these permits.

Wojoski Decl. ¶¶ 29–30. Facing similar waiver determinations by the Corps, California has

had to expend additional resources to issue additional state water quality approvals to protect

the quality of its waters. Sobeck Decl. ¶ 18.

These impacts from the Corps’ rejection of nationwide permit certifications will

continue at least until the permits renew in five years. Wojoski Decl. ¶ 29; Roose Decl. ¶ 23.

More importantly, the Corps is on target to renew 40 additional nationwide permits in the

coming year and has indicated its intent to follow the same procedure, based on the 2020 Rule.

Wojoski Decl. ¶ 30; Sobeck Decl. ¶ 17. These harms are significant and will only be avoided

by invalidation of the 2020 Rule.

Countless other harms to Plaintiff States are occurring—and will continue

to occur—as a result of the 2020 Rule

In addition to the harms noted above, countless other adverse impacts from the 2020

Rule will continue to affect Plaintiff States during EPA’s review. These include, but are not

limited to:



The 2020 Rule mandates that project proponents submit a pre-filing meeting request

30 days before an application can be submitted, regardless of whether such a meeting has any

The purpose of this denial was to ensure that North Carolina could include

individualized conditions for projects relying on these nationwide permits. Wojoski Decl.

¶¶ 28–29.

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 12 of 29

- App. 281 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 16 of 32

utility. This requirement both upsets existing state procedures and leads to unreasonable

delays. For example, under the 2020 Rule even environmentally beneficial projects that need

to be performed on an expedited basis—such as wildfire restoration and recovery projects,

cleaning up pollution discharges, stream bank repairs, and other in-water remediation work—

are subject to the 30-day pre-application clock without exception. Declaration of Steve Mrazik

in Support of Plaintiff States’ Opposition to Defendants’ Motion for Remand Without Vacatur

(Mrazik Decl.) ¶ 5; Wojoski Decl. ¶ 9; Sheeley Decl. ¶ 25. Even where states have adopted

their own procedures to address emergency situations, the 2020 Rule includes no exception for

emergencies. See Sheeley Decl. ¶ 25. Because the 2020 Rule contains no provisions for

addressing emergency permitting requests, the 30-day pre-application requirement creates an

unnecessary, and potentially dangerous, regulatory hurdle that will continue to exist while EPA

reconsiders the Rule. This was recently demonstrated in Oregon where projects focused on

recovering from the historic 2020 wildfire season faced confusion and delay. See Mrazik

Decl. ¶ 6.



The 2020 Rule’s elimination of any provision for modification of 401 certifications is

causing significant problems and inefficiencies. In California, the 2020 Rule has led to

confusion over whether California may modify conditions related to an emergency safety

project on the Lake Fordyce Dam where an aspect of the approved proposal was determined

to be unsafe. Sobeck Decl. ¶¶ 22–34. At present, and after shifting positions multiple times,

the Corps is denying California’s and the project proponent’s request to amend the 401

certification for the project to accommodate the change in design, leading to significant delays

to this critical (and potentially life-saving) project. Id. ¶¶ 35–49. See e.g. Randall Decl. ¶ 29;

Sheeley Decl. ¶ 29 (applicants must submit entirely new applications solely for the modified

elements resulting in two water quality certifications for one project).



The 2020 Rule severely limits the amount of information that a project proponent must

supply in order for a certification request to trigger the countdown for the “reasonable period of

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 13 of 29

- App. 282 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 17 of 32

time” in which state action must be completed. See 40 C.F.R. § 121.5(b). This portion of the

2020 Rule prohibits the certifying authority from determining when it has enough information

about a proposed project such that the application can be deemed complete; instead, a project

proponent is considered to have submitted a complete request so long as the minimal

information required by the 2020 Rule is provided, and without regard to the requirements of

state administrative procedures or the quality, descriptiveness, or completeness of the submitted

materials. Wojoski Decl. ¶¶ 10–11; Randall Decl. ¶¶ 26–29. As a result, the “reasonable period

of time” clock may begin counting down well in advance of when a certifying authority has the

information necessary to adequately review the potential impacts to water quality. Wojoski

Decl. ¶ 11; Randall Decl. ¶ 27. Moreover, while the 2020 Rule does permit a certifying authority

to request additional information it deems necessary for an adequate (and legally defensible)

review of the proposal, the clock for the state’s review does not reset when that information is

provided. EPA’s solution to this is for certifying authorities to simply deny the certification

request. 85 Fed. Reg. at 42,273 (July 13, 2020). Thus, where state administrative procedures

require an applicant to provide additional information, state agencies must choose between

complying with state administrative procedures (and risk waiving their authority under the 2020

Rule) or complying with the 2020 Rule (and risk being sued for noncompliance with state law).

See Sheeley Decl. ¶¶ 30, 34; Randall Decl. ¶ 28. This leads to inefficiencies, project delays, and

wasted staff time. Sheeley Decl. ¶ 30; Wojoski Decl. ¶ 11; Roose Decl. ¶ 21; Mrazik Decl. ¶ 7.

In summary, EPA’s assertion that the resulting harms and the prejudice to Plaintiff

States will be “limited” is inaccurate. The harms to Plaintiff States are neither abstract nor

speculative. Instead, the harms are extant, and the resulting prejudice more than outweighs

EPA’s desire to avoid adjudication of the merits. Especially in light of the fact that EPA

requests dismissal with prejudice, effectively insulating the 2020 Rule from scrutiny, EPA’s

motion should be denied. See ECF No. 143–2.

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 14 of 29

- App. 283 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 18 of 32

Remand Without Vacatur Does Not Advance Judicial Economy in This Case.

EPA attempts to support its remand request by asserting that granting remand without

vacatur promotes judicial economy. EPA Br. at 9. These contentions are unsupported by the

law and the facts.

First, cases cited by EPA in support of its judicial economy argument do not support

remand. Instead, the cases either refute EPA’s arguments for remand or do not address the

situation at hand. In particular, Utility Solid Waste Activities Group v. EPA¸ 901 F.3d 414 (D.C.

Cir. 2018), directly demonstrates that EPA’s judicial economy argument is incorrect. In that

case, EPA faced challenges from environmental and industry groups related to a rule governing

the disposal of “coal residuals.” Id. at 420. Some aspects of the rule were not subject to

challenge, and all parties agreed that those provisions of the rule should stay in effect until a

new rule was promulgated. Id. at 437. Because no controversy existed with regard to the rule’s

unchallenged provisions, the court found that “no party will suffer prejudice from remand

without vacatur” of those provisions. Id. at 438. With regard to the rule’s challenged

provisions, however, EPA sought voluntary remand to reconsider its interpretation of the

statute. Id. at 436.

The court granted remand with regard to some parts of the rule challenged by industry,

in large part because industry petitioners supported remand. Id. at 435–36. The court, however,

denied EPA’s request for remand to reconsider the provisions challenged by environmental

petitioners for two reasons. Id. at 436–37. First, because remand would prevent the court from

reaching the merits of environmental petitioners’ challenge, the court determined that remand

would “prejudice vindication of [petitioners’] claim.” Id. at 436. Second, and critically, the

court denied remand because petitioners’ claim involved the scope of EPA’s statutory authority

and, thus, was “intertwined with the exercise of agency discretion going forward.” Id.

at 436–67.

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 15 of 29

- App. 284 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 19 of 32

In other words, judicial economy favored denying remand and reaching the merits

because it made little sense to allow EPA to reconsider its position without guidance from the

court as to the scope of EPA’s statutory authority on the very questions it would reconsider.

See id. The court proceeded to the merits on these claims, determined that EPA’s interpretation

was arbitrary and capricious, and remanded with vacatur. Id. at 449. This is precisely the

situation in the present case where Plaintiff States’ arguments go to the very heart of EPA’s

statutory authority under section 401 and the very issues in the 2020 Rule that EPA seeks to

reconsider. As a result, and consistent with Utility Solid Waste, remanding to the agency

without reaching the merits both prejudices vindication of Plaintiff States’ claims and fails to

achieve an economy of judicial resources because it will not provide any guidance that would

enable the agency to avoid repeating its prior mistakes.

Other cases cited by EPA are inapposite and do not counsel remand because none

involve the situation presented here: i.e., where the agency’s request for remand would leave

the challenged rule in place for years despite serious concerns over its legality. In FBME Bank,

the agency’s remand request was granted, but only after the court expressly recognized that the

rule in question had already been enjoined and would not apply to the plaintiff during the

course of the agency’s reconsideration. FBME Bank v. Jacob Lew, 142 F. Supp. 3d 70, 75

(2015). The court in American Forest Resource Council v. Ashe, 946 F. Supp. 2d 1 (D. D.C.

2013), had already determined on the merits that the rule was invalid and only departed from

the typical rule requiring vacatur because the harms of leaving an endangered species without

any habitat protections during remand outweighed the benefits of vacating the rule. Id. at 44–

45.

Second, EPA’s judicial economy argument is self-defeating. In attempting to undercut

the non-governmental organization Plaintiffs’ harms, EPA asserts that piecemeal litigation can

be raised in the future as project proponents, environmental groups, and even states bring as-

applied challenges to individual 401 certification decisions. EPA Br. at 12. But this contention

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 16 of 29

- App. 285 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 20 of 32

only serves to highlight the fallacy of EPA’s claim of judicial economy. Rather than preserve

judicial resources, this approach actually increases judicial strain by requiring multiple state

and federal courts to take up the burden of adjudicating the 2020 Rule’s merits on a case-by-

case basis in the future. Moreover, this case does not present a situation where as-applied

litigation would present additional information helpful to resolution of a merits challenge.

Arguments related to the validity of the 2020 Rule are entirely legal ones; no further factual

development of the record is required, and with the Rule having been in effect for most of the

past year, the impacts to the states are already well known. See, e.g., supra Section A. The

present case is by far the most efficient means of adjudicating the merits of the 2020 Rule.

Finally, EPA’s argument on impacts to agency resources also rings hollow. To begin

with, EPA is under no legal obligation to defend the 2020 Rule—especially in light of its

concession that the 2020 Rule fails to adhere to cooperative federalism, is contrary to Supreme

Court case law, and negatively impacts states’ abilities to protect water quality. Indeed,

agencies frequently decline to defend rules with which they disagree or have changed policy

on. See, e.g., League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016) (United

States Election Assistance Commission declining to defend administrative decisions approving

guidance on voting laws that required proof of citizenship). But, even if EPA does defend the

validity of the 2020 Rule, impacts to the agency would be minimal. Notably, questions related

to the legality of the 2020 Rule are entirely legal ones, and EPA will not be required to develop

or provide any additional scientific or technical basis for the 2020 Rule. Indeed, in adopting

the 2020 Rule, EPA admitted that it did not consider potential adverse water quality impacts

or any other non-policy concerns. 85 Fed. Reg. 42,227 (July 13, 2020). Thus, any impacts to

the agency are limited—a point that is driven home by the fact that EPA’s declaration in

support of its motion to remand does not allege any lack of resources necessary to engage in

the current litigation. See ECF No. 143-1 (Goodin Declaration).

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 17 of 29

- App. 286 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 21 of 32

In short, neither the case law nor the circumstances relating to the 2020 Rule favor a

finding that judicial resources are conserved by remand in this case. In fact, the opposite is

true. The Court should decline EPA’s request to avoid an adjudication on the merits and

establish a briefing schedule for summary judgment.

If the Court Determines That Remand of the 2020 Rule is Appropriate, it Should

Be With Vacatur.

In the event the Court decides to remand the 2020 Rule, the Court should remand with

vacatur.6 Generally, vacatur is the default in cases where a court orders a remand of a

challenged agency action. See, e.g., All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d

1105, 1121–22 (9th Cir. 2018) (citing Alsea Valley All. v. DOC, 358 F.3d 1181, 1185 (9th Cir.

2004)). EPA’s motion does not explain why vacatur of the 2020 Rule is not appropriate. Given

(1) the clear and serious errors involved in the 2020 Rule; (2) the agency’s essential concession

that the Rule must be significantly revised in order to address its numerous deficiencies, and

(3) the serious harms that will result from its continued implementation during EPA’s twoyear new rulemaking process, vacatur is appropriate and justified.

To determine whether vacatur is warranted, courts in the Ninth Circuit evaluate two

key factors, commonly referred to as the Allied-Signal factors7: (1) the seriousness of the

agency’s errors and (2) the disruptive consequences that would result from vacatur. Cal. Cmtys.

Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012). In analyzing the first factor, courts

assess “whether the agency . . . could adopt the same rule on remand, or whether [the]

fundamental flaws in the agency's decision make it unlikely that the same rule would be

Plaintiffs’ Complaint seeks vacatur of the 2020 Rule. Compl. (Dkt. No. 1) at 6, 27.

Accordingly, consideration of Plaintiffs’ request of remand with vacatur together with

Defendants’ request for remand without vacatur is appropriate. See N. Coast Rivers All. v. U.S.

Dep’t of the Interior, No. 1:16-cv-00307-LJO-MJS, 2016 WL 8673038, at *6 (E.D. Cal. Dec.

16, 2016).

See Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission, 988 F.2d 146 (D.C.

Cir. 1993).

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 18 of 29

- App. 287 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 22 of 32

adopted on remand.” Pollinator Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir.

2015). As to the second factor, “courts may decline to vacate agency decisions when vacatur

would cause serious and irremediable harms that significantly outweigh the magnitude of the

agency’s error.” Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin.,

109 F. Supp. 3d 1238, 1242 (N.D. Cal. 2015) (internal quotations).

In appropriate circumstances, and consistent with the Administrative Procedure Act,

vacation of an agency action without an express determination on the merits “is well within

the bounds of traditional equity jurisdiction.” Ctr. For Native Ecosystems v. Salazar, 795 F.

Supp. 2d 1236, 1241–1242 (D. Colo. 2011) (citing Nat. Res. Def. Council v. U.S. Dep’t of

Interior, 275 F. Supp. 2d 1136, 1143 (C.D. Cal. 2002)). In exercising this equitable discretion,

courts generally consider the two-part test from Allied-Signal set out above. Id. at 1242 (citing

United Mine Workers v. Dole, 870 F.2d 662, 673 (D.C. Cir. 1993)). Additionally, the vacatur

analysis discussed above applies to motions for voluntary remand. See ASSE Int’l, Inc. v.

Kerry, 182 F. Supp. 3d 1059, 1064 (C.D. Cal. 2016) (“Courts faced with a motion for voluntary

remand employ the same equitable analysis courts use to decide whether to vacate agency

action after a ruling on the merits.”) (internal punctuation and citation omitted); see also

Farmworker Ass’n of Fla. v. EPA, No. 21-1079, 2021 U.S. App. LEXIS 16882, at *2–3 (D.C.

Cir. June 7, 2021).

Applying the vacatur analysis here demonstrates that vacatur of the 2020 Rule is

warranted and necessary. EPA’s motion does not explain why vacatur of the 2020 Rule is not

warranted. As set out below, EPA has effectively conceded that the 2020 Rule has significant

legal deficiencies and, as a result, EPA plans to revise the Rule. Moreover, the overwhelming

and potentially irreversible harms from continuing to apply the rule for the duration of EPA’s

planned rulemaking vastly outweigh the harms from vacating the rule promptly and restoring

the previous regulatory framework. The Allied-Signal factors are met here, and the Court

should exercise its equitable authority to vacate the rule on remand.

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 19 of 29

- App. 288 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 23 of 32

EPA has conceded that the 2020 Rule must be revised because of its legal

deficiencies.

“One way to measure the seriousness of an agency’s errors is to attempt to evaluate the

likelihood that the agency will be able to justify future decisions” that would be the same as

the challenged agency action. N. Coast Rivers Alliance, 2016 WL 8673038, at *8. In assessing

this factor, courts have relied on the agency’s admission of error or the agency’s concession

that the challenged decision must be revised. See Cal. Cmtys. Against Toxics, 688 F.3d 989,

993 (2012) (considering EPA’s concession that there are flaws in the reasoning supporting its

challenged rule in the evaluation of the first Allied-Signal factor); N. Coast Rivers Alliance,

2016 WL 8673038, at *8 (considering the Department of Interior’s admission that its new

decision will need to be revised). EPA has effectively conceded that the 2020 Rule was

promulgated in error. EPA specifically admits that it must “reconsider and revise the 2020

Rule” because it has “‘substantial concerns with a number of provisions of the 401

Certification Rule that relate to cooperative federalism principles and CWA section 401’s goal

of ensuring that states are empowered to protect their water quality.’” EPA Br. at 7 (citing 86

Fed. Reg. at 29,542) EPA also points to its serious concerns that “‘the rule’s narrow scope of

certification and conditions may prevent state and tribal authorities from adequately protecting

their water quality.”” Id. In particular, EPA will specifically seek to reconsider and revise “the

Rule’s interpretation of the scope of certification and certification conditions, and the definition

of ‘water quality requirements’ as it relates to the statutory phrase ‘other appropriate

requirements of State law,’ including whether the Agency should revise its interpretation of

scope to include potential impacts to water quality not only from the ‘discharge’ but also from

the ‘activity as a whole’ consistent with Supreme Court case law.” EPA Br. at 3.

When seeking remand without vacatur, it is the agency’s burden to demonstrate that it

could re-adopt the challenged agency action on remand; failure to meet that burden weighs in

favor of vacatur. See N. Coast Rivers Alliance, 2016 WL 8673038, at *9 (concluding that

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 20 of 29

- App. 289 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 24 of 32

because there was no evidence on the record to enable the court to evaluate whether the agency

can reach the same decision on remand, the first Allied-Signal factor favors vacatur); see also

Nat. Res. Def. Council, 275 F. Supp. 2d at 1145 (“Where the existing rule is more likely to fall

during remand, the courts are more reluctant to enforce that rule in the intervening remand

period.”).

Tellingly, nowhere does EPA’s motion attempt to establish that it “could adopt the

same rule on remand.” Pollinator Stewardship Council, 806 F.3d at 532. In fact, the motion

lists a series of issues with the 2020 Rule that the agency “has committed to reconsidering” in

its new rulemaking and unequivocally states that it will propose a “rule detailing revisions” to

the 2020 Rule. EPA Br. at 2–5. Indeed, EPA admits that its “concerns mirror many of the

Plaintiffs’ allegations.” Id. at 7. EPA promises that the revised rule will “restore the balance of

state, Tribal, and federal authorities consistent with the cooperative federalism principles

central to” section 401, effectively conceding that the 2020 Rule fails to strike the correct

balance. EPA Br. at 2–3; Goodin Decl. ¶ 11

Because EPA has in fact conceded that the Rule was adopted in error and could not be

re-issued as is, the first Allied-Signal factor demonstrates that vacatur may be appropriate if

this Court determines that remand is necessary.

Remand without vacatur will be significantly more harmful than any harm

resulting from vacating the rule.

The balance of equities similarly weighs heavily in favor of vacatur. EPA has not given

any “indication that [they] . . . or anyone else would be seriously harmed or disrupted” if the

2020 Rule were vacated. See ASSE Int’l v. Kerry, 182 F. Supp. 3d 1059, 1065 (C.D. Cal. 2016).

The 2020 Rule upended the long-standing regulatory regime that governed state certifications

for nearly 50 years. Compl. ¶¶ 1.6, 5.15–5.31. Vacating the 2020 Rule will simply restore the

status quo that existed for more than four decades while EPA engages in a rulemaking to

remedy the Rule’s defects. See Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (“The

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 21 of 29

- App. 290 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 25 of 32

effect of invalidating an agency rule is to reinstate the rule previously in force.”) As courts

have observed, a “return to the status quo causes little or no disruption.” See Burke v. Coggins,

No. 20-667, 2021 U.S. Dist. LEXIS 29999, at *10 (D.D.C. Feb. 18, 2021). Further, EPA’s

intent to revise the 2020 Rule in light of the various “substantial concerns” outlined by the

agency provides another reason why vacatur of the flawed 2020 Rule will not be disruptive.

Cf. Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1, 46 (D.D.C. 2013) (vacatur “may well

be disruptive” where the agency represented that the revised rule would not be materially

different from the challenged rule).

Even if there was a credible argument to be made that vacatur and return to the prior

familiar regulatory framework will be disruptive, the seriousness of any such disruption is

vastly outweighed by the significant harms from continuing to implement the 2020 Rule on

remand. As set forth in Section A above, Plaintiffs have presented detailed testimony

demonstrating that the harms from maintaining the Rule while the agency engages in prolonged

rulemaking are numerous, significant, and potentially irreparable. These serious harms include

frustration of Plaintiffs’ efforts to implement environmental protections to limit the water

quality impacts of federally approved projects, such as hydropower projects and dams, on state

natural resources and endangered species; ensure critical drought protections of water

resources are put in place timely; and impose conditions required by state law on federal

projects governed by Army Corps’ nationwide permits, among others. Wojoski Decl.

¶¶ 16–22; Randall Decl. ¶¶ 7–10; Gosier Decl. ¶¶ 12–13; 23 Sobeck Decl. ¶¶ 17–19, 22–48,

70–79. And the Rule has and will continue to cause delay, confusion, inconsistencies, and

increased administrative costs borne by the Plaintiffs as they try to comply with its onerous

and illegal requirements. Sobeck Decl. ¶¶ 21, 22, 48, 50; Konowal Decl. ¶ 7 (issues with

modification); Wojoski Decl. ¶ 10–11; Randall Decl. ¶¶ 26–28 (issues with insufficient info);

Mrazik Decl. ¶ 5; Wojoski Decl. ¶ 9; Sheeley Decl. ¶ 25 (issues with prefilling meeting

requests).

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 22 of 29

- App. 291 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 26 of 32

All of these harms are directly relevant to the Court’s vacatur analysis. See Ctr. for

Native Ecosystems, 795 F. Supp. 2d at 1243 (concluding that harms associated with delay and

cost due to Endangered Species Act consultations that will be required as a result of vacatur

are “irrelevant” because they contradicted Congressional intent to prevent species extinction

regardless of cost). In particular, Plaintiffs’ harms directly relate to Congress’ goal in the Clean

Water Act ensure water quality is protected and Congressional policy that states and tribes are

afforded broad authority to safeguard their water resources. See 33 U.S.C. § 1251(a), (b). The

fact that many of the harms that Plaintiffs have experienced and will continue to experience

during EPA’s new rulemaking consist of potentially irreversible environmental impacts on

state water resources further supports the conclusion that the 2020 Rule must be vacated. Cf.

Klamath Siskiyou Wildlands Ctr. v. Grantham, 642 F. App’x 742, 745 (9th Cir. 2016) (leaving

agency decision to issue grazing permits in effect on remand because vacatur would result in

reinstating prior permits with terms that are less environmentally protective).

Because the harms that Plaintiffs are bound to suffer if the 2020 Rule remains effective

on remand significantly outweigh any potential disruption from reverting to the status quo, this

Court should vacate the Rule.

III.

CONCLUSION

The Court should deny EPA’s motion to remand without vacatur. EPA fails to establish

that the harm to Plaintiff States is outweighed by EPA’s desire to not defend the 2020 Rule on

the merits. The harms are severe, extant, and well documented, and the burden on EPA if it

chooses to defend the rule is minimal. Especially in light of the fact that EPA’s motion would

effectively shield the 2020 Rule from scrutiny, Plaintiff States request that the Court deny

remand and set briefing schedule for adjudication on the merits. In the alternative, and to the

extent the Court is inclined to grant remand, the Court should exercise its discretion to remand

with vacatur in light of the significant legal deficiencies with the 2020 Rule, which EPA has

essentially conceded. Vacatur would not result in any prejudice; rather restoring the status quo

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 23 of 29

- App. 292 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 27 of 32

would place both regulators and regulated parties on more predictable and sound footing while

EPA revises the Rule.

Dated: July 26, 2021

Respectfully submitted,

SIGNATURES – State Plaintiffs

FOR THE STATE OF WASHINGTON

ROBERT W. FERGUSON

Attorney General of Washington

By: /s/ Kelly T. Wood

KELLY T. WOOD

Managing Assistant Attorney General

GABRIELLE GURIAN

Assistant Attorney General

Washington Office of the Attorney General

PO Box 40117

Olympia, Washington 98504-0117

Telephone: (360) 586-5109

E-mail: Kelly.Wood@atg.wa.gov

FOR THE STATE OF CALIFORNIA and

THE CALIFORNIA STATE WATER

RESOURCES CONTROL BOARD

ROB BONTA

Attorney General of California

By: /s/ Tatiana K. Gaur

TATIANA K. GAUR

ADAM LEVITAN

Deputy Attorneys General

California Office of the Attorney General

300 South Spring Street, Suite 1702

Los Angeles, California 90013

Telephone (213) 269-6329

E-mail: Tatiana.Gaur@doj.ca.gov

FOR THE STATE OF CONNECTICUT

FOR THE STATE OF MARYLAND

WILLIAM TONG

Attorney General of Connecticut

BRIAN FROSH

Attorney General of Maryland

By: /s/ Jill Lacedonia

JILL LACEDONIA

Assistant Attorney General

Connecticut Office of the Attorney General

165 Capitol Avenue

Hartford, Connecticut 06106

Telephone: (860) 808-5250

E-mail: Jill.lacedonia@ct.gov

By: /s/ John B. Howard, Jr.

JOHN B. HOWARD, JR.

Special Assistant Attorney General

Maryland Office of the Attorney General

200 St. Paul Place

Baltimore, Maryland 21202

Telephone: (401) 576-6970

E-mail: jbhoward@oag.state.md.us

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 24 of 29

- App. 293 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 28 of 32

FOR THE STATE OF NEW MEXICO

FOR THE STATE OF OREGON

HECTOR BALDERAS

Attorney General of New Mexico

ELLEN F. ROSENBLUM

Attorney General of Oregon

By: /s/ William Grantham

WILLIAM GRANTHAM

Assistant Attorney General

New Mexico Office of the Attorney General

Consumer and Environmental Protection

Div.

201 Third Street NW, Suite 300

Albuquerque, New Mexico 87502

Telephone: (505) 717-3520

E-mail: wgrantham@nmag.gov

By: /s/ Paul Garrahan

PAUL GARRAHAN

Attorney-in-Charge

Natural Resources Section

Oregon Department of Justice

1162 Court St. NE

Salem, Oregon 97301-4096

Telephone: (504) 947-4593

E-mail: paul.garrahan@doj.watate.or.us

FOR THE STATE OF NEVADA

FOR THE STATE OF COLORADO

AARON D. FORD

Attorney General of Nevada

PHILIP J. WEISER

Attorney General of Colorado

By: /s/ Katie S. Armstrong

KATIE S. ARMSTRONG

Deputy Attorney General

Nevada Office of the Attorney General

100 North Carson Street

Carson City, Nevada 89701-4717

Telephone: (775) 684-1224

E-mail: karmstrong@ag.nv.gov

By: /s/ Annette M. Quill

ANNETTE M. QUILL

Senior Assistant Attorney General

CARRIE NOTEBOOM

First Assistant Attorney General

Ralph L. Carr Colorado Judicial Center

1300 Broadway, 7th Floor

Denver, Colorado 80203

Telephone: (720) 508-6000

E-Mail: Annette.quill@coag.gov

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 25 of 29

- App. 294 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 29 of 32

FOR THE STATE OF NEW YORK

FOR THE STATE OF NORTH CAROLINA

LETITIA JAMES

Attorney General of New York

JOSHUA S. STEIN

Attorney General of North Carolina

By: /s/ Brian Lusignan

BRIAN LUSIGNAN

Assistant Attorney General

New York State Office of the Attorney

General

Environmental Protection Bureau

The Capitol

Albany, New York 12224

Telephone: (518) 776-2399

E-Mail: Brian.Lusignan@ag.ny.gov

By: /s/ Daniel S. Hirschman

DANIEL S. HIRSCHMAN

Senior Deputy Attorney General

TAYLOR H. CRABTREE

ASHER P. SPILLER

Assistant Attorneys General

North Carolina Department of Justice

PO Box 629

Raleigh, North Carolina 27602

Telephone: (919) 716-6400

E-Mail: tcrabtree@ncdoj.gov;

aspiller@ncdoj.gov

FOR THE STATE OF NEW JERSEY

FOR THE STATE OF RHODE ISLAND

ANDREW J. BRUCK

Attorney General of New Jersey

PETER F. NERONHA

Attorney General of Rhode Island

By: /s/ Lisa Morelli

LISA MORELLI

New Jersey Office of the Attorney General

Richard J. Hughes Justice Complex

25 Market Street

PO Box 093

Trenton, NJ 08625-4503

Telephone: (609) 984-6640

By: /s/ Alison B. Hoffman

ALISON B. HOFFMAN

Rhode Island Office of Attorney General

150 south Main Street

Providence, Rhode Island 02903

Telephone: (401) 274-4400

E-Mail: ahoffman@riag.ri.gov

FOR THE DISTRICT OF COLUMBIA

FOR THE COMMONWEALTH OF VIRGINIA

KARL A. RACINE

Attorney General of District of Columbia

MARK R. HERRING

Attorney General of Commonwealth of Virginia

By: /s/ Brian R. Caldwell

BRIAN R. CALDWELL

D.C. Office of the Attorney General

Public Advocacy Division

441 Fourth Street Northwest, Suite 600-S

Washington, DC 20001

Telephone: 202-727-6211

E-Mail: brian.caldwell@dc.gov

By: /s/ David Cardwell Grandis

DAVID CARDWELL GRANDIS

Virginia Office of Attorney General

202 North 9th Street

Richmond, Virginia 23219

Telephone: 804-225-2741

E-Mail: dgrandis@oag.state.va.us

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 26 of 29

- App. 295 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 30 of 32

FOR THE STATE OF VERMONT

FOR THE STATE OF MINNESOTA

TJ DONOVAN

Attorney General of Vermont

KEITH ELLISON

Attorney General of Minnesota

By: /s/ Laura B. Murphy

LAURA B. MURPHY

Vermont Office of the Attorney General

109 State Street

Montpelier, Vermont 05609

Telephone: (802) 828-1059

E-Mail: laura.murphy@bermont.gov

By: /s/ Peter N. Surdo

PETER N. SURDO

Minnesota Office of the Attorney General

445 Minnesota Street, Suite 900

St. Paul, Minnesota 55101

Telephone: (651) 757-1061

E-Mail: peter.surdo@ag.state.mn.us

FOR THE STATE OF MICHIGAN

DANA NESSEL

Michigan Attorney General

FOR THE COMMONWEALTH OF

MASSACHUSETTS

By: /s/ Gillian Wener

GILLIAN WENER

Michigan Office of the Attorney General

ENRA Division

P.O. Box 30755

Lansing, MI 48909

Telephone: (517) 335-7664

E-Mail: wenerg@michigan.gov

MAURA HEALEY

Massachusetts Attorney General

By: /s/ Matthew Ireland

MATTHEW IRELAND

Massachusetts Office of the Attorney General

Environmental Protection Division

One Ashburton Place, 18th Floor

Boxton, MA 02108-1598

Telephone: (617)-727-2200

E-Mail: Mathew.ireland@mass.gov

FOR THE STATE OF WISCONSIN

FOR THE STATE OF ILLINOIS

JOSH KAUL

Wisconsin State Attorney General

KWAME RAOUL

Illinois State Attorney General

By: /s/ Gabe Johnson-Karp

GABE JOHNSON-KARP

Wisconsin Department of Justice

Post Office Box 7867

Madison, Wisconsin 53702

Telephone: (608) 267-8904

E-Mail: johnsonkarpg@doj.state.wi.us

By: /s/ Jason Elliott James

JASON ELLIOTT JAMES

Illinois Office of the Attorney General

Environmental Bureau

69 West Washington Street 18th Floor

Chicago, Illinois 60602

Telephone: (312) 814-0660

E-Mail: jjames@atg.state.il.us

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 27 of 29

- App. 296 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 31 of 32

FOR THE STATE OF MAINE

AARON FREY

Maine State Attorney General

By: /s/ Jillian Renee O’Brien

JILLIAN RENEE O’BRIEN

Maine Office of the Attorney General

6 State House Station

Augusta, Maine 04333

Telephone: (207) 626-8582

E-Mail: jill.obrien@maine.gov

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 28 of 29

- App. 297 -

Case 3:20-cv-04636-WHA Document 146 Filed 07/26/21 Page 32 of 32

SIGNATURE ATTESTATION

Pursuant to Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of this

document has been obtained from each of the other signatories.

Dated: July 26, 2021

/s/ Kelly T. Wood

Kelly T. Wood

___________________________________________________________________________________________

PLAINTIFF STATES’ OPPOSITION TO MOTION FOR REMAND (Case No. 4:20-cv-04636-WHA)

Page 29 of 29

- App. 298 -

Case 3:20-cv-04636-WHA Document 146-1 Filed 07/26/21 Page 1 of 22

ROB BONTA

Attorney General of California

SARAH E. MORRISON

ERIC KATZ

Supervising Deputy Attorneys General

CATHERINE M. WIEMAN, SBN 222384

TATIANA K. GAUR, SBN 246227

ADAM L. LEVITAN, SBN 280226

BRYANT B. CANNON, SBN 284496

LANI M. MAHER, SBN 318637

Deputy Attorneys General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

Telephone: (213) 269-6329

Fax: (916) 731-2128

E-mail: Tatiana.Gaur@doj.ca.gov

Attorneys for Plaintiff State of California, by

and through Attorney General Rob Bonta and

the State Water Resources Control Board

ROBERT W. FERGUSON

Attorney General of Washington

KELLY T. WOOD (admitted pro hac vice)

GABRIELLE GURIAN (admitted pro hac vice)

Assistant Attorneys General

Washington Office of the Attorney General

Ecology Division

2425 Bristol Court SW

Olympia, Washington 98501

Telephone: (360) 586-5109

E-mail: Kelly.Wood@atg.wa.gov

Attorneys for Plaintiff State of Washington

[Additional Plaintiffs and Counsel Listed on

Signature Pages]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

In Re

Clean Water Act Rulemaking

CASE NO. 20-cv-04636-WHA

(lead consolidated)

Applies to all actions

DECLARATION OF EILEEN

SOBECK IN SUPPORT OF

PLAINTIFFS' OPPOSITION TO

MOTION FOR REMAND

Courtroom: 12, 19th Floor

Date: August 26, 2021

Time: 12:00 P.M.

___________________________________________________________________________________________

Declaration of Eileen Sobeck in Support of Plaintiffs’ Opposition to Motion for Remand

Case No. 4:20-cv-04636-WHA (consolidated)

- App. 299 -

Page 1 of 22

Randall Decl. Ex. D,

E, p. 1 of 125

Case 3:20-cv-04636-WHA Document 146-1 Filed 07/26/21 Page 2 of 22

I am Eileen Sobeck, Executive Director of the State Water Resources Control

Board (“State Water Board” or “Board”). I submit this declaration to demonstrate that

California’s interests have been and are being adversely impacted by the rule entitled “Clean

Water Act Section 401 Certification Rule” (“401 Rule”) promulgated by the United States

Environmental Protection Agency (“U.S. EPA”) on July 13, 2020. Although U.S. EPA has

announced its intent to reconsider and revise the 401 Rule, it is unlikely to complete the

process until spring 2023 at the earliest. Thus, under the schedule proposed by U.S. EPA, the

harms experienced by California are ongoing and will continue, at a minimum, for multiple

years while the 401 Rule is in effect.

The 401 Rule has caused and will continue to cause considerable harm to the

State of California. Since the September 11, 2020 effective date of the 401 Rule, California’s

efforts to protect the state’s water quality have been, and will continue to be, drastically

impaired. In addition to the effects on California’s sovereign authority to protect water quality

and the resulting environmental harms, California has experienced administrative and

programmatic injury. As described below, the 401 Rule creates confusion and uncertainty,

complicates the certification process, and delays projects with public health and safety

implications. Moreover, the 401 Rule’s harms are particularly acute in the hydropower

licensing context, where federal licenses issued by the Federal Energy Regulatory Commission

(“FERC”) are in effect for up to 50 years. Without the ability to address the water quality

impacts of an activity subject to Section 401 certification as a whole and to modify conditions

to protect water quality during the decades-long term of the FERC license, permanent

environmental damage is likely to occur. These harms will continue to occur while the 401

Rule is in effect.

In preparing this declaration, I relied on my professional experience and training

which have provided me a strong basis to determine ongoing and future harms caused by the

___________________________________________________________________________________________

Declaration of Eileen Sobeck in Support of Plaintiffs’ Opposition to Motion for Remand

Case No. 4:20-cv-04636-WHA (consolidated)

- App. 300 -

Page 2 of 22

Randall Decl. Ex. D,

B, p. 2 of 125

Case 3:20-cv-04636-WHA Document 146-1 Filed 07/26/21 Page 3 of 22

401 Rule. If called upon to testify about the matters discussed herein, I could and would testify

competently hereto.

PERSONAL BACKGROUND

I have been employed as the Executive Director of the State Water Board since

2017. My duties and responsibilities include overseeing all divisions and offices of the State

Water Board, including the Division of Water Rights and the Division of Water Quality. The

Division of Water Rights is responsible for issuing Section 401 water quality certifications

(“certifications”) for activities or facilities subject to FERC licensing or involving the diversion

or use of water. The Division of Water Quality is responsible for issuing certifications related

to discharges not associated with a FERC license or appropriation of water. The Division of

Water Quality also coordinates certification responsibilities for the nine Regional Water

Quality Control Boards (“Regional Water Boards”).

Prior to joining the State Water Board, I headed the National Oceanic and

Atmospheric Administration as the Assistant Administrator at the United States Department of

Commerce from 2014 to 2017. Prior to that work, I served as the United States Department of

the Interior’s Acting Assistant Secretary for Insular Affairs (2012-2014) and its Deputy

Assistant Secretary for Fish, Wildlife and Parks (2009-2012). I also worked for 25 years at the

United States Department of Justice, ultimately serving as Deputy Assistant Attorney General

for Environment and Natural Resources, from 1999 to 2009. I received my Juris Doctor and

Bachelor of Arts degrees from Stanford University.

CERTIFICATIONS ISSUED UNDER CLEAN WATER ACT SECTION 401

Section 401 of the Clean Water Act (“Section 401”) requires that every

applicant for a federal permit or license for an activity that may result in a discharge to waters

of the United States provide a certification from the state in which the discharge occurs that the

activity will meet requirements adopted under specific Clean Water Act sections as well as

___________________________________________________________________________________________

Declaration of Eileen Sobeck in Support of Plaintiffs’ Opposition to Motion for Remand

Case No. 4:20-cv-04636-WHA (consolidated)

- App. 301 -

Page 3 of 22

Randall Decl. Ex. D,

A, p. 3 of 125

Case 3:20-cv-04636-WHA Document 146-1 Filed 07/26/21 Page 4 of 22

“other appropriate requirements of state law.” 33 U.S.C. § 1341(a), (d). Any conditions of

issuing such a certification become part of the federal permit or license. Id. § 1341(d).

Section 401 allows each state to designate an agency responsible for reviewing

and approving or denying water quality certification requests. 33 U.S.C. § 1341(a)(1). In

California, the State Water Board is the agency with certification authority. Cal. Water Code §

13160; Cal. Code Regs. tit. 23, §§ 3830-3838, 3855-3861, 3867-3869.

Section 401 is the means by which the State Water Board ensures federally

permitted or licensed projects meet state water requirements.

In California, the State Water Board and the nine Regional Water Quality

Control Boards (collectively, “Water Boards”) issue water quality certifications. The Water

Boards issue about 1,000 water quality certifications each year.

10.

In the past three years, the Water Boards have issued almost 3,000 water quality

certifications related to discharges not associated with a FERC license.

11.

In the past three years, the Division of Water Rights has issued 29 certifications,

including amendments, related to FERC licenses or other federal permits or licenses relating to

the diversion or use of water.

12.

The Water Boards most commonly issue certifications for two types of federal

permits and licenses: (1) dredge or fill permits issued by the United States Army Corps of

Engineers (“USACE”) pursuant to Section 404 of the Clean Water Act; and (2) hydropower

licenses issued by FERC.

13.

The State Water Board issues certifications for discharges that may fall under

the jurisdiction of more than one Regional Water Quality Control Board or involve an

appropriation of water, a hydroelectric facility where the proposed activity requires a FERC

license or amendment to a FERC license, or any other diversion of water for domestic,

irrigation, power, municipal, industrial, or other beneficial use.

___________________________________________________________________________________________

Declaration of Eileen Sobeck in Support of Plaintiffs’ Opposition to Motion for Remand

Case No. 4:20-cv-04636-WHA (consolidated)

- App. 302 -

Page 4 of 22

Randall Decl. Ex. D, p. 4 of 125

Case 3:20-cv-04636-WHA Document 146-1 Filed 07/26/21 Page 5 of 22

14.

All other water quality certifications are issued by the Regional Water Board

with jurisdiction over the region in which a discharge may occur.

IMPACT OF THE 401 RULE

15.

I have reviewed the 401 Rule, and my knowledge and experience allow me to

understand the impacts of the 401 Rule. Pursuant to the State Water Board’s regulations, as

the Executive Director, I have been delegated authority “to take all actions connected with

applications for certification, including issuance and denial of certification.” Cal. Code Regs.

tit. 23, § 3838(a). I am familiar with the processes and issues associated with certifications,

including compliance with the 401 Rule. I have also conferred with my staff to further identify

the impacts of the 401 Rule to date and anticipated in the future.

16.

U.S. EPA’s drastic departure from its long-standing regulations and guidance

has necessitated programmatic changes and the expenditure of resources to meet the new

procedural and substantive requirements of the 401 Rule. Water Boards staff have expended

hundreds of hours trying to adjust certifications to satisfy the requirements of the 401 Rule.

Because the regulations are vague and therefore subject to arbitrary application, the federal

permitting and licensing agencies do not have a settled interpretation or application of the

regulations. Therefore, these resource expenditures by the Water Boards are expected to

continue in the future.

17.

The 401 Rule is having a substantial impact on the Water Boards with regard to

USACE Nationwide Permits. The State Water Board issued general water quality

certifications for 18 USACE Nationwide Permits: 1, 3a, 4, 5, 6, 9, 10, 11, 12, 14, 20, 22, 28,

32, 36, 54, 57, and 58. The USACE determined that the certifications for Nationwide Permits

12, 57, and 58 were invalid due to the 401 Rule. In addition, the USACE has indicated that it

intends to determine that the certifications for the remaining Nationwide Permits were invalid

due to the 401 Rule. Based on data collected over the past five years, these determinations will

___________________________________________________________________________________________

Declaration of Eileen Sobeck in Support of Plaintiffs’ Opposition to Motion for Remand

Case No. 4:20-cv-04636-WHA (consolidated)

- App. 303 -

Page 5 of 22

Randall Decl. Ex. D, p. 5 of 125

Case 3:20-cv-04636-WHA Document 146-1 Filed 07/26/21 Page 6 of 22

require the Water Boards to process approximately 135 individual water quality certifications

that would otherwise have been addressed by the general water quality certifications. The

estimated additional workload associated with these individual water quality certifications is

approximately 3,700 staff hours annually for each year the 401 Rule remains in effect. This is

roughly equivalent to two full-time staff who, as a result of the 401 Rule, will not be available

to work on other, higher water quality priorities for the Water Boards.

18.

The Water Boards have also had to make programmatic adjustments due to the

401 Rule. For example, in some instances where the USACE has found waiver of the Water

Boards’ Section 401 certification authority based on the 401 Rule, the Water Boards have had

to issue additional state water quality approvals, known as waste discharge requirements, to

protect water quality. These additional approvals result in greater resource expenditures for

largely the same result as under the prior rules.

19.

Project proponents requesting water quality certification have disputed the

applicability of the 401 Rule. For example, some entities challenging certifications issued by

the Board have argued that the 401 Rule should be applied retroactively to applications or

requests filed before its effective date notwithstanding U.S. EPA guidance to the contrary.

This has led to increasingly adversarial proceedings, which result in additional delay and

expenditure of resources, even when the 401 Rule does not apply.

20.

The USACE has also found conditions required to be included in certifications

pursuant to California law to be waived under the 401 Rule’s requirements. The Emergency

Drought Salinity Barrier Project, described below in greater detail, is one such instance.

21.

The 401 Rule has introduced a high level of uncertainty and confusion into the

certification process in California which inhibits, rather than promotes, the system of

cooperative federalism established by the Clean Water Act. Both the Lake Fordyce Dam

Safety Project and Emergency Drought Salinity Barrier Project, discussed below, show how

___________________________________________________________________________________________

Declaration of Eileen Sobeck in Support of Plaintiffs’ Opposition to Motion for Remand

Case No. 4:20-cv-04636-WHA (consolidated)

- App. 304 -

Page 6 of 22

Randall Decl. Ex. D, p. 6 of 125

Case 3:20-cv-04636-WHA Document 146-1 Filed 07/26/21 Page 7 of 22

this has required Water Boards staff to spend time and resources addressing questions and

situations created or left unanswered by the 401 Rule.

22.

If it remains in effect, the 401 Rule will also have impacts on California’s water

quality that will last for multiple generations and may be irreversible. The discussion below

regarding certifications for FERC-licensed hydropower facilities demonstrates how the 401

Rule significantly restricts California’s ability to ensure that hydropower projects will comply

with water quality standards and other state law requirements. Due to the long terms of FERC

licenses, which can last up to 50 years, resulting environmental damage will last for decades

and possibly permanently.

A. Lake Fordyce Dam Safety Project

23.

The Lake Fordyce project provides one example of how the 401 Rule has

created uncertainty and confusion, complicating the certification process and consuming

additional State Water Board staff resources and time, and delaying projects with public safety

implications.

24.

Lake Fordyce Dam, initially constructed between 1873 and 1882 from soil and

rock material, has a long history of seepage. Previous efforts to reduce seepage by

constructing new design features and repair existing design features have been unsuccessful.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.