State Of Georgia et al v. McCarthy et al

Filing 174

ORDER granting 32 Motion for Preliminary Injunction. Signed by Judge Lisa G. Wood on 06/08/2018. (WS)

In the United States District Court
for the Southern District of Georgia
Brunswick Division
STATE OF GEORGIA, et al.,
Plaintiffs,
v.
SCOTT PRUITT, et al.,
Defendants.

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No. 2:15-cv-79

ORDER
This Matter comes before the Court on Plaintiffs’ Motion
for Preliminary Injunction.

Dkt. No. 32.

This matter has been

fully briefed, including by amici curae, and orally presented at
a hearing.

It is now ripe for review.

For the following

reasons, this Motion is GRANTED.
BACKGROUND
Plaintiffs State of Georgia, State of West Virginia, State
of Alabama, State of Florida, State of Kansas, Commonwealth of
Kentucky, State of South Carolina, State of Utah, and State of
Wisconsin (“the States”)1 filed the present lawsuit on June 30,
2015,

1

against

the

administrators

of

the

United

States

Plaintiffs’ filed an amended complaint on July 20, 2015, adding the State of
Indiana and the North Carolina Department of Environment and Natural
Resources. Dkt. No. 31.

Environmental Protection Agency (“EPA”) and the United States
Army

Corps

Agencies”).

of

Engineers

Dkt. No. 1.

(“Army

Corps”)

(collectively,

“the

The States alleged that the Agencies

had issued a final rule (“WOTUS Rule”) the previous day (June
29, 2015) defining “Waters of the United States.”
¶ 5 (citing 80 Fed. Reg. 37,053-37,127).

Dkt. No. 1

The States claimed

that the WOTUS Rule violated the Clean Water Act (“CWA”), the
Administrative Procedure Act (“APA”), as well as the Commerce
Clause and Tenth Amendment of the U.S. Constitution, and that
they

were

entitled

to

injunctive

relief.

33

U.S.C.

§§ 1344,

1362(7); 5 U.S.C. § 706(2)(A); U.S. Const. art. I, § 8; U.S.
Const. amend. X.
Congress enacted the Clean Water Act in 1972 “to restore
and maintain the chemical, physical, and biological integrity of
the Nation’s waters.”

33 U.S.C. § 1251(a).

One of the Act’s

principal tools in achieving that objective is the prohibition
of “the discharge of any pollutant” defined as “any addition of
any pollutant to navigable waters from any point source,” and
“navigable waters,” in turn, is defined as “waters of the United
States,

including

the

§ 1362(12), (14), (7).
provisions

apply

to

territorial

seas.”

Id.

§ 1311(a),

“Because many of the Act’s substantive

‘navigable

waters,’

the

statutory

phrase

‘waters of the United States’ circumscribes the geographic scope
of the Act in certain respects.”
2

Nat’l Ass’n of Mfrs. v. Dep’t

of Def., 583 583 U.S. __, 138 S. Ct. 617, 624 (2018).
also

requires

that

anyone

who

navigable water obtain a permit.
process

of

hundreds

obtaining

of

these

thousands

discharges

pollutants

into

Id. (citing § 1311(a)).

permits

of

The Act

can

dollars,

take

and

years

and

discharging

The
cost
into

“navigable waters” without a permit can subject the discharging
party of a fine of up to $37,500 per violation, per day, as well
as criminal penalties.

22 U.S.C. §§ 1311, 1319, 1365; 74 Fed.

Reg. 626, 627-28 (Jan. 7, 2009); Rapanos v. United States, 547
U.S. 715, 721 (2006).
Responding

to

calls

for

precision

in

the

definition

of

“waters of the United States,” the Agencies jointly promulgated
the

WOTUS

Rule

to

“provid[e]

simpler,

clearer,

and

more

consistent approaches for identifying the geographic scope of
the [Act].”

80 Fed. Reg. 37054 at 37057.

And so, the WOTUS

Rule separates waters into three jurisdictional groups.

First,

it defines “tributaries” of primary waters as per se waters of
the

United

States,

with

tributary

defined

as

“a

water

that

contributes flow, either directly or through another water,” to
a primary water and “is characterized by the presence of the
physical indicators of a bed and bank and an ordinary high water
mark,”

declaring

for

the

first

time

that

“remote

sensing

sources” or “mapping information” would be used to detect these
“physical indicators.”

33 C.F.R. § 328.3(c)(3); 80 Fed. Reg. at
3

37,076-78.

The WOTUS Rule also envisions the use of “desktop

tools” for “hydrologic estimation of a discharge sufficient to
create an ordinary high water mark” to identify the presence of
a bed, bank, and OHWM, or even the historical presence of such
where physical characteristics are “absent in the field.”

Id.

at 37,077.
Second, the WOTUS Rule declares that all “adjacent” waters
are per se jurisdictional, defining “adjacent waters” as waters
and

wetlands

“bordering,

contiguous

or

neighboring”

primary

waters, even if they are separated from the primary water by
man-made or natural barriers.

33 C.F.R. § 328.3(c)(1).

Third, the WOTUS Rule also grants authority to the Agencies
over certain waters with a relationship to a primary water, to
include: (1) all waters, any part of which are within the 100year floodplain of a primary water; and (2) all waters, any part
of which are within 4,000 feet of the high tide line or ordinary
high water mark of a primary water, impoundment, or tributary.
Id. § 328.3(a)(8).
With the WOTUS Rule’s new definition of “waters of the
United States,” the Agencies estimated that determinations of
federal jurisdiction would increase by 2.84% to 4.65% annually.
80 Fed. Reg. at 37,101.2

2

The States characterize this figure as a “drastic underestimation of the
Rule’s expansion.” Dkt. No. 32, p. 2.
4

The WOTUS Rule’s effective date was August 28, 2015, and so
the States filed a motion for preliminary injunction on July 21,
2015 to enjoin enforcement of the WOTUS Rule before it became
effective.

Dkt. No. 32.

This Court held a hearing on the

Motion on August 12, 2015.

Dkt. No. 70.

On August 27, 2015,

the Court issued an order denying the preliminary injunction for
lack

of

jurisdiction,

holding

with the Courts of Appeals.
Meanwhile,
country.

The

similar
same

day

that

original

jurisdiction

lay

Dkt. No. 77.

lawsuits3
that

this

were

brought

Court

around

decided

it

the

lacked

jurisdiction (August 27, 2015), the District of North Dakota
granted

the

preliminary

injunction

challenging the WOTUS Rule.

to

thirteen

other

states4

North Dakota v. U.S. Envtl. Prot.

Agency, 127 F. Supp. 3d 1047 (D.N.D. 2015).
On January 22, 2018, the Supreme Court held that original
jurisdiction of this dispute lies with the district courts, not
with the Courts of Appeals.

Nat’l Ass’n of Mfrs. v. Dep’t of

Def., 583 U.S. __, 138 S. Ct. 617 (2018).

As a result, the

Motion is properly before this Court.

3

The Court understands that a lawsuit challenging the WOTUS Rule in the
Northern District of Oklahoma has been administratively closed pending
completion of the Agencies’ rulemaking process. Dkt. No. 149, p. 3; Okla. v.
Envtl. Prot. Agency, No. 4:15-cv-03081-CVE-FHM (N.D. Okla. March 9, 2018).
There are also suits pending in the Southern District of Texas and the
District of Ohio.
Dkt. No. 149, pp. 3-4; Am. Farm Bureau Fed’n v. Envtl.
Prot. Agency, No. 3:15-cv-165 (S.D. Tex. Mar. 20, 2018); Ohio v. Envtl. Prot.
Agency, No. 16-3564 (6th Cir. Mar. 27, 2018).
4
Those states are North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho,
Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming.
5

In the interim, things have changed.
United

States

issued

an

executive

The President of the

order

in

March

2017

for

reconsideration of the WOTUS Rule.

Exec. Order No. 13,778,82

Fed. Reg. 12,497 (Mar. 3, 2017).

In response, the Agencies

proposed a rule on July 27, 2017, that, once implemented, would
rescind

the

WOTUS

Rule

and

recodify

the

definition of “waters of the United States.”

pre-2015

regulatory

See Definition of

“Waters of the United States” – Recodification of Pre-Existing
Rules, 82 Fed. Reg. 34899, 34901-34902.

Then, in November 2017,

following oral argument in National Association of Manufacturers
v.

Department

rule.

of

Defense,

the

Agencies

proposed

another

That one became final on February 6, 2018 (“Applicability

Rule”).

The Applicability Rule is identical to the WOTUS Rule

but provides an effective date of February 6, 2020.
the

new

Agencies

assert

that

the

reconsidered by the Agencies.”

WOTUS

Rule

“is

Until then,

being

actively

Dkt. No. 154-1, p. 1.

The Applicability Rule, in turn, has now been challenged in
several lawsuits.

Two lawsuits are pending in the Southern

District of New York—the first involves a coalition of eleven
states led by New York against the Agencies.
1-2.

Those

eleven

states

seek

Applicability Rule is unlawful.

Id.

a

Dkt. No. 149, pp.

declaration

that

the

The second New York action

involves two environmental groups against the Agencies, arguing
that the Applicability Rule is unlawful and seeking declaratory
6

and injunctive relief.
1:18-cv-1030-JPO
Council,

Inc.

Id.; see Compl., N.Y. v. Pruitt, No.

(S.D.N.Y.

v.

Envtl.

(S.D.N.Y. Feb. 6, 2018).

Feb.
Prot.

7,

2018);

Agency,

Nat.

No.

Res.

Def.

1:18-cv-1048-JPO

Several other environmental groups

sued the Agencies in the District of South Carolina, challenging
the

legality

of

the

Applicability

declaratory and injunctive relief.

Rule

and

requesting

Dkt. No. 149; see Compl.,

S.C. Coastal Conservation League v. Pruitt, No. 2:18-cv-330-DCN
(D.S.C. Feb. 6, 2018).

The parties in this case also made

reference during the preliminary injunction hearing to a case
challenging the Applicability Rule in the Western District of
Washington.

Dkt.

No.

167,

pp.

7,

29.

The

parties

also

represented that the challengers of the Applicability Rule have
so far moved for summary judgment in three of those lawsuits.
Id. pp. 6-7.

The Agencies will be responding to those motions

for summary judgment from now until August (as those cases have
similar but staggered deadlines).

Id. p. 29.

those cases have sought preliminary relief.

Id.

No parties in
The Southern

District of New York denied motions to transfer both cases to
the Southern District of Texas, and as far as this Court has
been presently made aware, a motion to transfer the District of
South Carolina case to the Southern District of Texas is still
pending.
5

Dkt. No. 149, p. 2; Dkt. No. 167, p. 5.5

The Court is not aware of a motion to transfer the District of Washington
7

LEGAL STANDARD
“A preliminary injunction is an extraordinary remedy never
awarded as of right.”

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 647, 68990 (2008)).

The purpose of a preliminary injunction is “merely

to preserve the relative positions of the parties until a trial
on the merits can be held.”

United States v. Lambert, 695 F.2d

536, 539 (11th Cir. 1983).
To

receive

establish

the

a

preliminary

following

injunction,

requirements:

the
“(1)

plaintiff
a

must

substantial

likelihood of success on the merits; (2) a substantial threat of
irreparable

injury;

(3)

that

the

threatened

injury

to

the

plaintiff outweighs the potential harm to the defendant; and
(4) that the injunction will not disserve the public interest.”
Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002) (citing
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th
Cir. 2001)).
The plaintiff must clearly meet the burden of persuasion on
each of these four factors.

Four Seasons Hotel & Resorts, B.V.

v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003).
When a court issues an injunction, the court’s order must “state
the reasons why it issued,” “state its terms specifically,” and
“describe

in

reasonable

detail—and

case to the Southern District of Texas.
8

not

by

referring

to

the

complaint
required.”

or

other

document—the

act

or

acts

restrained

or

Fed. R. Civ. Proc. 65 (d)(1).
DISCUSSION

I.

Likelihood of success on the merits
The requirement that the movant demonstrate a substantial

likelihood of success on the merits “is generally considered the
most important of the four.”

White v. Alcon Film Fund, LLC, 955

F. Supp. 2d 1381, 1383 (N.D. Ga. 2013) (citing Garcia-Mir v.
Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) (“Ordinarily the
first factor is the most important.”).
The States allege that the Agencies violated the rulemaking
authority granted to them under the CWA and the APA; they allege
that the WOTUS Rule is arbitrary and capricious under the APA;
they allege that the WOTUS Rule violates the Commerce Clause;
they allege that the WOTUS Rule violates the Tenth Amendment;
and they allege that the WOTUS Rule violates the APA’s notice
and

comment

requirements.6

The

States

need

only

show

a

6

Two days ago, the Intervenors submitted briefing urging that no Article III
“case or controversy” presently exists because the Applicability Rule now
supersedes the WOTUS Rule and the Agencies are reconsidering the WOTUS Rule
in the meantime. Dkt. No. 173. But the Supreme Court explicitly stated that
this case is presently justiciable:
The parties have not suggested that any of these subsequent
developments render this case moot. That is for good reason. Because
the WOTUS Rule remains on the books for now, the parties retain “‘a
concrete interest’” in the outcome of this litigation, and it is not
“‘impossible for a court to grant any effectual relief ... to the
prevailing party.’” Chafin v. Chafin, 568 U.S. 165, 172, 133 S. Ct.
1017, 185 L.Ed.2d 1 (2013) (quoting Knox v. Service Employees, 567 U.S.
298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012)). That remains true
even if the agencies finalize and implement the November 2017 proposed
9

likelihood of success on one cause of action in order to prevail
on this requirement at this time.

Schiavo ex rel. Schindler v.

Schiavo, 403 F.3d 1289, 1298-99 (11th Cir. 2005).

They have

demonstrated a likelihood of success on their claims that the
WOTUS Rule was promulgated in violation of the CWA and the APA,
and the Court need not consider the remaining claims.

Notably

too, the Agencies have not opposed the States’ position that
they are likely to succeed on the merits, and in fact, have
asserted that they themselves are presently reconsidering the
WOTUS Rule.

See Dkt. No. 167 (“[N]or are we affirming [our

previous position that the States are not likely to succeed on
the merits] as our position at this time.”)
A. Claim that WOTUS Rule violates the Clean Water Act
The

States

have

demonstrated

that

they

are

likely

to

succeed on the merits of their claim that the Agencies violated
their statutory authority in promulgating the WOTUS Rule.
Justice Kennedy’s analysis of this statutory authority in
Rapanos

v.

United

States7

begins

with

the

Clean

Water

Act’s

purpose to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters,” and requires the

rule's new effective date. That proposed rule does not purport to
rescind the WOTUS Rule; it simply delays the WOTUS Rule's effective
date.
Nat’l Ass’n of Mfrs., 583 U.S. __, 138 S. Ct. at 627 n.5.
7
The Eleventh Circuit held in United States v. Robison that Justice Kennedy’s
concurrence controls.
505 F.3d 1208, 1222 (11th Cir. 2007) (“[W]e adopt
Justice Kennedy’s ‘significant nexus’ test as the governing definition of
‘navigable waters’ under Rapanos.”).
10

Agencies’ rules to comply with such an end.
(2006) (Kennedy, J., concurring).

547 U.S. 715, 779

The Court recognized that,

“in enacting the Clean Water Act Congress intended to regulate
at least some waters that are not navigable in the traditional
sense.”

Id. at 767.

For a water to come within the agency’s

jurisdiction, Justice Kennedy held, there must be a “significant
nexus” with a navigable water.
Rapanos

deemed

a

water

a

Id.

The rule at issue in

tributary

if

it

“feeds

into

a

traditional navigable water . . . and possesses an ordinary
high-water mark.”

Id. at 781.

This standard provided a “rough

measure of the volume and regularity of flow.”
“adoption

as

the

determinative

measure

of

Id.

But its

whether

adjacent

weltands are likely to play an important role in the integrity
of an aquatic system” covers wetlands “little more related to
navigable-in-fact waters than were the isolated ponds held to
fall

beyond

the

Act’s

scope

in

SWANCC.”

Id.

at

781-82.

Relatedly, the Supreme Court in Solid Waste Agency of Northern
Cook County v. United States Army Corps of Engineers (“SWANCC”)
held the Army Corps’ rule invalid that asserted jurisdiction
over

waters

migratory

“[w]hich

birds.

531

are

or

U.S.

would
159,

be

164

used

as

(2001).

habitat”
Such

a

by

rule

exceeded the Agencies’ authority, the Court held, because it
covered

“nonnavigable,

isolated

intrastate

waters”

such

as

seasonal ponds and would “alter[] the federal-state framework by
11

permitting federal encroachment upon a traditional state power”—
namely, the States’ “traditional and primary power over land and
water use.”

Id. at 171.

The WOTUS Rule here likely fails to meet this standard.

In

Rapanos, the agency defined a tributary as a water that “feeds
into a traditional navigable water (or a tributary thereof) and
possesses an ordinary high-water mark, defined as a line on the
shore established by the fluctuations of water and indicated by
[certain] physical characteristics.”
definition

“seem[ed]

to

leave

wide

Id. at 781.
room

for

But that

regulation

of

drains, ditches, and streams remote from any navigable-in-fact
waters.”

Id.

The same fatal defect appears to plague the WOTUS Rule
here.

The WOTUS Rule allows the Agencies to regulate waters

that do not bear any effect on the “chemical, physical, and
biological

integrity”

of

any

navigable-in-fact

water.

The

definition of “tributary” covers a trace amount of water so long
as “the physical indicators of a bed and banks and an ordinary
high

water

“remote

mark”

sensing

can

tools”

“absent in the field.”

be

found

where

by

actual

“mapping
physical

information”
indicators

or
are

This definition is similar to the one

invalidated in Rapanos, and it carries with it the same concern
that Justice Kennedy had there—it seems “to leave wide room for

12

regulation

of

drains,

ditches,

and

streams

remote

from

any

navigable-in-fact water.”
The Army Corps had attempted to justify the rule at issue
in SWANCC on the ground that 121 bird species had been observed
at

the

site,

including

environments
Similarly,

for
the

a

WOTUS

several

known

significant
Rule

to

depend

portion

asserts

of

that,

on

aquatic

their

standing

life.

alone,

a

significant “biological effect” – including an effect on “life
cycle dependent aquatic habitat[s]” – would place a water within
the CWA’s jurisdiction.

33 C.F.R. § 328.3(c)(5).

Thus, this

WOTUS Rule will likely fail for the same reason that the rule in
SWANCC failed.
B. Claim that Agencies violated APA requirements
The States have demonstrated a likelihood of success on
both of their claims under the APA – the claim that the WOTUS
Rule is arbitrary and capricious and the claim that the final
rule is not a logical outgrowth of the proposed rule.
1. Arbitrary and Capricious
The court must set aside a final agency rule if it finds
that it is “arbitrary, capricious, an abuse of discretion, or
otherwise

not

in

accordance

with

the

law.”

5

U.S.C.

§ 706(2)(A).

This “narrow” standard of review requires “‘an

agency

examine

[to]

satisfactory

the

explanation

relevant

for

its
13

data

action.’”

and

articulate
F.C.C.

v.

a
Fox

Television

Stations,

Inc.,

556

U.S.

502,

513

(2009)

(Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Ins. Co.,
463 U.S. 29, 43 (1983)).

The Court “should ‘uphold a decision

of less than ideal clarity if the agency’s path may reasonably
be discerned.’”

F.C.C., 556 U.S. at 513-14 (quoting Bowman

Transp., Inc. v. Ar.-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974)).
The States are likely to succeed on the merits of this
claim as well.
the

The Agencies assert that any water that fits in

definition

“significantly

of

a

affect

“tributary”
the

chemical,

will,

as

physical,

integrity of traditional navigable waters.”

of

necessity,

and

biological

80 Fed. Reg. 37075.

The WOTUS Rule asserts jurisdiction over remote and intermittent
waters

without

evidence

that

they

have

a

nexus

with

any

navigable-in-fact waters.
2. “Logical Outgrowth” of the Proposed Rule
When agencies make rules, they must first publish proposed
rulemakings in the Federal Register including “either the terms
or

substance

of

the

proposed

subjects and issues involved.”

rule

or

a

description

5 U.S.C. § 553(b).

of

the

This allows

“interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments.”
Id. § 553(c).

The final rule must be a “logical outgrowth” of

the proposed rule.

Long Island Care at Home, Ltd. v. Coke, 551
14

U.S. 158, 174 (2007).
“logical

outgrowth”

determine

In determining whether a final rule is a
of

whether

the

the

proposed

rule,

interested

the

parties

court

should

“should

anticipated that such a requirement might be imposed.”

have
Small

Refiner Lead Phase-Down Task Force v. U.S.E.P.A., 705 F.2d 506,
549 (D.C. Cir. 1983).

As the circuit to have considered most

APA challenges, the D.C. Circuit has required the proposed rule
to inform of “the range of alternatives being considered with
reasonable specificity.”

Id.

Applying these rules, the D.C.

Circuit vacated a rule that permitted parties in railroad cases
to recommend comparing data from the past four years where the
proposal

had

recent year.

only

recommended

comparing

data

from

the

most

CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d

1076, 1078 (D.C. Cir. 2009).
Here, the WOTUS Rule fails to meet the “logical outgrowth”
test in significant ways.

First, the proposed rule defined

“adjacent waters” as, inter alia, those within a riparian area
or

floodplain

of

an

interstate

water

or

an

impoundment

or

tributary of an interstate water, but the final rule defines
waters to be per se adjacent when they are within: (1) 100 feet
of a primary water, impoundment, or tributary; (2) the 100-year
floodplain and 1,500 feet of a primary water, impoundment, or
tributary; and (3) 1,500 feet of the high tide line of a primary
water.

Cf. 79 Fed. Reg. at 22,269 with 33 C.F.R. § 328.3(c)(2).
15

Second, unlike the final rule, the proposed rule made no mention
of exempting waters on farmland only from the “adjacent waters”
category.

The proposal gave no indication that it would treat

farmland differently from any other land or that it would treat
farmland differently as between the adjacency and the tributary
categories.
definition

Third, the proposed rule did not include in the
of

tributaries

waters

and

land

that

possess

no

observable (from the ground) bed, bank, or ordinary high water
mark, but the final rule defines tributaries as possessing a
bed, bank, or ordinary high water mark that can be detected by
remote sensing imagery.
Reg. at 37,076-78.

Cf. 79 Fed. Reg. at 22,269 with 80 Fed.

Indeed, during the proposal, the Agencies’

published policy instructed Army Corps personnel to combine the
remote sensing imagery with “on the ground” field studies rather
than relying exclusively on remote sensing.8
II.

Substantial threat of irreparable injury
It

important

is

hornbook
prerequisite

law
for

that
the

“[p]erhaps
issuance

the
of

single
a

most

preliminary

injunction is a demonstration that if it is not granted the
applicant is likely to suffer irreparable harm before a decision
on the merits can be rendered.” Charles Alan Wright & Arthur R.
Miller, 11A Fed. Prac. & Proc. Civ. § 2948.1 (3d ed.).
8

The

Corps, Research and Development Center, A Guide to Ordinary High Water Mark
(OHWM)Delineation for Non-Perennial Streams in the Western Mountains,
Valleys,
and
Coast
Region
of
the
United
States
39
(Aug.
2014),
http://acwc.sdp.sirsi.net/client/search/asset/1036027.
16

Supreme Court clarified in Winter that, whatever other sliding
scale is imposed to analyze the factors, the irreparable injury
must be likely.

Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008).

In defining the likelihood of irreparable

harm, the Eleventh Circuit requires that it “must be neither
remote nor speculative, but actual and imminent.”

Siegel v.

LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting City of
Jacksonville, 896 F.2d at 1285).

That is, it cannot be “a

merely conjectural or hypothetical [] threat of future injury.”
Winter, 555 U.S. at 22.

“[T]he harm considered by the district

court is necessarily confined to that which might occur in the
interval between ruling on the preliminary injunction and trial
on the merits.”

Lambert, 695 F.2d at 540.

Here, according to the Agencies’ own estimation, the effect
of the WOTUS Rule will be an increase in CWA jurisdiction by
2.84 to 4.65% annually.9

“[T]raditional and primary power over

land and water use” belong to the States.

SWANCC, 531 U.S. at

174 (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,
44

(1994)

(“[R]egulation

of

land

use

[is]

traditionally performed by local governments.”)).
takes

effect,

the

States

will

lose

their

a

function

Once the Rule

sovereignty

over

certain intrastate waters that will become subject to the scope
of the Clean Water Act.

Loss of sovereignty is an irreparable

9

Again, the States characterize this figure as a “drastic undercounting of
the Rule’s expansion.” Dkt. No. 32, p. 2.
17

harm.

See Kansas v. United States, 249 F.3d 1213, 1227 (10th

Cir. 2001) (deeming loss of “sovereign interests” irreparable);
Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 7, 17 (D.D.C.
2014) (recognizing loss of state sovereignty as an irreparable
harm).
In addition to the loss of sovereignty, the States will
suffer an irreparable harm in the form of unrecoverable monetary
harm.

If the States incur monetary losses as a result of an

unlawful exercise of regulatory authority, no avenue exists to
recoup those losses because the United States has not waived
sovereign immunity from suits seeking these sorts of damages.
Odebrecht Const., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d
1268, 1289 (11th Cir. 2013) (“In the context of preliminary
injunctions, numerous courts have held that the inability to
recover monetary damages because of sovereign immunity renders
the harm suffered irreparable.”); Bowen v. Massachusetts, 487
U.S. 879, 893 (1988) (APA does not waive agencies’ sovereign
immunity for damages actions.).
The States have asserted that compliance with the WOTUS
Rule

will

cause

them

monetary

harm.

First,

the

WOTUS

Rule

requires States to expend resources updating the water quality
goals under the CWA’s Water Quality Standard program.
of

Kansas

has

produced

evidence

that

this

“significantly greater resources” than $300,000.
18

will

The State
require

Dkt. No. 32-3

¶¶ 8, 10.

Second, the WOTUS Rule requires States to expend

resources in issuing additional state certifications under the
Section 404 program.

33 U.S.C. § 1344.

The EPA has estimated

that the WOTUS Rule will impose additional obligations on the
States of between $798,000 and $1.3 million per year under this
program alone.

EPA, Economic Analysis of the EPA-Army Clean

Water Rule, at 19 (May 2015).

Third, the WOTUS Rule requires

the States to create, process, and issue additional National
Pollution Discharge Elimination System permits.
¶ 13.

Dkt. No. 32-3

The EPA has predicted that this will impose upon the

States additional obligations of between $527,000 and $770,000
per year under this program alone.
the

EPA-Army

Clean

Water

Rule,

at

EPA, Economic Analysis of
25-29

(May

2015).

These

losses are unrecoverable economic losses, in addition to the
unrecoverable

loss

of

state

sovereignty,

because

there

is

neither an alternative source to replace the lost revenues nor a
way to avoid the increased expenses.
The States have easily shown that the harm they will suffer
once the WOTUS Rule becomes effective has no adequate remedy at
law.

But the Agencies argue that these harms are not “actual

and imminent” because the WOTUS Rule may never become effective.
Here, there are two ways that the WOTUS Rule could become
effective, thereby triggering immediate irreparable harm to the
States.

First, the WOTUS Rule will become effective once the
19

Applicability date arrives (February 6, 2020).

This trigger

provides actual harm, and the Court will discuss whether it is
imminent.
of

the

Second, the WOTUS Rule will become effective if one

several

courts

Applicability Rule.
imminently.

considering

the

issue

invalidates

the

This trigger will occur, if at all, rather

Together, these are two independent ways that the

States can establish that irreparable harm is both actual and
imminent.
Regarding

the

first

trigger

for

the

WOTUS

Rule’s

effectiveness, the effective date is certain to arrive—that is,
the States will suffer “actual” harm on February 6, 2020.

As

the law presently stands, the WOTUS Rule will become effective
on that date.
provisional,

The Applicability Rule providing that date is not
conditional,

or

equivocal,

but

definite

in

its

effectiveness on that date.
The Agencies argue that there is not a substantial threat
of

irreparable

reached,

harm

because

before

the

a

decision

on

intend

to

Agencies

the

merits

issue

a

can
new

be
and

superseding rule before February 2020.

The Intervenors10 argue

that

matters

the

States’

uncertainty,

and

concerns
that

are

simply

irreparable

10

harm

must

of
be

regularity
based

on

Presently before the Court is the Motion to Intervene by National Wildlife
Federation and One Hundred Miles.
Dkt. No. 136.
That motion has been
referred to the Magistrate Judge. The Court considers their brief in ruling
on the present preliminary injunction motion.
For simplicity’s sake, the
Court will refer to these entities as “the Intervenors” throughout this
Order.
20

something more than regularity uncertainty (citing New England
Power Generators Ass’n, Inc. v. FERC, 707 F.3d 264, 369 (D.C.
Cir. 2013)).

New England does hold that uncertainty about the

possibility that an agency may reverse its position does not
create irreparable harm.

Id.

However, the present situation

is, in an important way, just the opposite.

The possibility

that the agency may reverse its position cannot create harm, nor
can the possibility that the agency will reverse its position
alleviate the harm already set in motion.

The States argue that

actions must be based on an agency’s present position, without
speculating that they may change at some point in the future.
The

Court

can

and

must

analyze

present state of the law.

the

situation

based

on

the

And the law presently states that the

WOTUS Rule will actually become effective in February 2020.
The
nineteen

question
months

then

from

becomes

now

–

is

provide a time-specific answer.

whether

February

imminent.

The

6,

law

2020
does

–
not

At the outer limit, imminence

is capped by the amount of time it takes to render a decision on
the merits.
Fed.

Prac.

demonstration
irreparable

See Charles Alan Wright & Arthur R. Miller, 11A
&

Proc.
that

harm

Civ.

§ 2948.1
applicant

“the

before

a

(3d
is

decision

on

ed.)

(requiring

likely
the

to

merits

a

suffer
can

be

rendered”) (emphasis added); Lambert, 695 F.2d at 539 (“[T]he
harm

considered

by

the

district
21

court

[in

a

preliminary

injunction] is necessarily limited to that which might occur in
the interval between ruling on the preliminary injunction and
trial on the merits.”).

Given that the States filed this suit

thirty-six months ago, and still no decision on the merits has
been possible, it is quite possible that February 6, 2020 will
occur before a decision on the merits can be rendered.

No

discovery has been permitted nor possible; dispositive motions
have not been submitted, briefed, or even scheduled.

Therefore,

the Court finds that the occurrence of actual irreparable harm
in nineteen months is sufficiently imminent to weigh this factor
in favor of the States.
Moreover, there exists the possibility of an even earlier
trigger

of

the

WOTUS

Rule

–

the

WOTUS

Rule

could

become

effective, and the irreparable harm suffered by the States, even
more imminently than February 6, 2020.

This could occur if a

court in one of the numerous other lawsuits pending in various
states across the country finds that the Applicability Rule is
invalid.

Such decisions are ripe for decision beginning this

very month.
The

Agencies

argue

that

the

Court

should

not

speculate

regarding whether those courts will invalidate the Applicability
Rule but should instead wait and see what their decisions turn
out to be.

Thus, the Agencies have asked the Court to hold the

States’ Motion in abeyance pending further developments in each
22

of the Applicability Rule cases.

The States respond that this

would

the

be

too

late,

for

once

Applicability

Rule

is

invalidated, the WOTUS Rule is immediately effective, and the
harm

to

the

concern

is

States
that

is

by

immediately

the

time

suffered.

Their

Court

invalidates

any

larger
the

Applicability Rule, it might be too late for the States to seek
preliminary
relief

is

occurred.

injunctive
not

relief

available

to

because
remedy

preliminary
harm

that

injunctive

has

already

Ala. v. U.S. Army Corps of Engineers, 424 F.3d 1117,

1133 (11th Cir. 2005); Dombrowski v. Pfister, 380 U.S. 479, 485
(1965) (“[W]e note that an injunction is limited to prospective
relief.”); Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am.
v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990)
(“[P]reventing irreparable harm in the future is ‘the sine qua
non of injunctive relief.’”) (quoting Frejlach v. Butler, 573
F.2d 1026, 1027 (8th Cir. 1978)).
While no one is certain that the Applicability Rule will be
invalidated, the Court is satisfied that the States have gone as
far as the law requires in showing that irreparable harm is
likely and sufficiently imminent, either when the WOTUS Rule
becomes effective in February 2020 and/or if the Applicability
Rule is invalidated in one of the four lawsuits that becomes
ripe for decision this month.

23

III.

Balance of equities
The third preliminary injunction prerequisite requires the

Court to compare the harm to the movant in the absence of the
preliminary

injunction

with

the

harm

to

the

nonmovant

in

granting the preliminary injunction.
Here, this factor weighs heavily in favor of the States.
The harm faced by the States has already been articulated: loss
of sovereignty and unrecoverable monetary losses.
hand,

the

only

harm

that

the

Agencies

complying with the Court’s order.

have

On the other
articulated

is

As counsel stated at the

hearing, “the Agencies would have to monitor compliance with now
two injunctions” – two injunctions that do the same thing.
No.

167,

p.

25.

Counsel

went

on:

the

harm

is

Dkt.

“hard

to

articulate, admittedly” but is the institutional harm of having
their rule enjoined by a court.

That would always be the case.

If the harm of complying with an injunction – of having one’s
activity enjoined – were enough to tip the balance against an
injunction, every request for injunction would fail.

In any

event, the effect of an injunction would be the same as what the
Agencies themselves are seeking: non-application of the WOTUS
Rule.
The harm to the Agencies of preserving the status quo as
this case progresses pales in comparison to the harm that the

24

States urge – loss of sovereignty and unrecoverable monetary
losses – were the WOTUS Rule to become effective.
IV.

Public interest
An injunction of the WOTUS Rule favors the public interest.

First, “[t]he public has no interest in the enforcement of what
is very likely” an unenforceable rule.
1273.

Odebrecht, 715 F.3d at

Second, if the WOTUS Rule becomes effective before a

final decision on the merits is rendered, farmers, homeowners,
and small businesses will need to devote time and expense to
obtaining federal permits—all to comply with a rule that is
likely to be invalidated.

Lastly, enjoining the WOTUS Rule will

put the eleven States in this case in the same position as the
thirteen

states

granted

preliminary

injunctive

relief

by

the

District of North Dakota, thereby adding consistency of judicial
determination as well as of the Rule’s applicability.
CONCLUSION
Plaintiffs have clearly met the burden of persuasion on
each

of

the

injunction.

four

factors

entitling

them

to

a

preliminary

Three of the four factors (substantial likelihood

of success on the merits, balance of harms, and public interest)
weigh

overwhelmingly

in

Plaintiffs’

favor.

One,

substantial

threat of irreparable injury, is a closer call, yet has been
satisfied.

Plaintiffs’ Motion for Preliminary Injunction (Dkt.

Nos. 32) is hereby GRANTED.

The Rule jointly promulgated by the
25

EPA and the Army Corps, found at Fed. Reg. 37,054-127, is hereby
enjoined in the States of Georgia, Alabama, Florida, Indiana,
Kansas,

North

Carolina,

South

Carolina,

Utah,

West

Virginia,

Wisconsin, and the Commonwealth of Kentucky.

SO ORDERED, this 8th day of June, 2018.

__________________________________
HON. LISA GODBEY WOOD
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

26