Waterkeeper Alliance, Inc. et al v. Pruitt et al

Filing 125

ORDER by Judge Seeborg granting 110 Motion to Remand. (rslc1, COURT STAFF) (Filed on 9/16/2021)

Case 3:18-cv-03521-RS Document 125 Filed 09/16/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WATERKEEPER ALLIANCE, INC., et al.,

Case No. 18-cv-03521-RS

Plaintiffs,
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United States District Court
Northern District of California

v.

ORDER GRANTING MOTION TO
REMAND

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U.S. ENVIRONMENTAL PROTECTION
AGENCY, et al.,

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Defendants.

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This is one of several cases filed in various United States District Courts throughout the

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nation challenging rules promulgated by the United States Environmental Protection Agency and

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the United States Army Corps of Engineers that define “waters of the United States” for purposes

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of applying the Clean Water Act, see e.g., Conservation Law Foundation v. United States

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Environmental Protection Agency, No. 1:20-cv-10820 (D. Mass.); Pascua Yaqui Tribe v. United

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States Environmental Protection Agency, 4:20-cv-00266 (D. Ariz.), including another case

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pending in this court, State California v. Regan, 3:20-cv-3005 RS (N.D.Cal.).

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Defendants seek voluntary remand to the agencies and dismissal of this case. Plaintiffs

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oppose remand unless the current rule is vacated. The issue of whether vacatur is warranted or not

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appears to be moot, however, given that the Pascua Yaqui court issued an order on August 13,

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2021 vacating the rule.

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Were it still necessary to reach the issue, this court would not be inclined to impose
vacatur. Plaintiffs’ argument that vacatur is appropriate in light of defendants’ supposed

Case 3:18-cv-03521-RS Document 125 Filed 09/16/21 Page 2 of 2

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acknowledgement of “legal error” embodied in the present rule is not persuasive. Defendants do

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not concede the rule is legally impermissible, and in California v. Regan, this court concluded the

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plaintiffs were unlikely to succeed on the merits in showing such legal error. Rather, defendants

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appear to be reconsidering the rule for policy reasons. While it is within defendants’ discretion to

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modify their policies and regulatory approaches, and it may ultimately resolve some or all of

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plaintiffs’ objections to the current rule, there has been no evaluation of the merits—or concession

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by defendants—that would support a finding that the rule should be vacated.

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Intervenors Chantell and Michael Sackett oppose remand as to one specific provision —
relating to “adjacent wetlands” — which they contend the agencies would lack discretion to

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eliminate or substantially revise on remand. The Sackett’s argument, however, rests on their

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United States District Court
Northern District of California

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position that the four-justice plurality opinion in Rapanos v. United States, 547 U.S. 715, 126

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S.Ct. 2208 (2006) is controlling. The Ninth Circuit has recently rejected that very claim by the

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Sacketts. Sackett v. U.S. Env’t Prot. Agency, 8 F.4th 1075, 1091 (9th Cir. 2021)(“For all these

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reasons, the Sacketts’ arguments fail . . . the Kennedy concurrence is still the controlling opinion

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from Rapanos.”)

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Accordingly, the motion to remand is granted. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: September 16, 2021
______________________________________
RICHARD SEEBORG
Chief United States District Judge

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CASE NO.

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18-cv-03521-RS