State Of Georgia et al v. McCarthy et al

Filing 261

ORDER granting 199 & 203 Motions for Summary Judgment. Intervenor Defendants' 211 Motion is DENIED. The WOTUS Rule is hereby REMANDED to the Agencies for further proceedings consistent with this Order. Intervenor Plaintiffs' 208 Motion to Amend the Court's Preliminary Injunction is DENIED at this time. The Court's 174 Preliminary Injunction will REMAIN in place pending the outcome of the ongoing administrative proceedings regarding the WOTUS Rule. Signed by Judge Lisa G. Wood on 8/21/2019. (csr)

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

No. 2:15-cv-00079

ANDREW R. WHEELER, in his
official capacity as Acting
Administrator, U.S.
Environmental Protection
Agency, et al.,
Defendants.
ORDER
Before the Court is a challenge to a 2015 administrative regulation
defining “waters of the United States” (hereinafter, the “WOTUS Rule”)
under the Clean Water Act (“CWA”), 33 U.S.C. §§ 1344, 1362(7) (2018).
Congress enacted the CWA in 1972 “to restore and maintain the chemical,
physical,
§ 1251(a).

and

biological

integrity

of

the

Nation’s

waters.”

Id.

To accomplish that goal, Congress implemented permitting

requirements in the CWA for discharging pollutants into the nation’s
“navigable waters.”

Id. § 1311(a), § 1362(12), (14).

Congress defined

“navigable waters” to mean “the waters of the United States, including
the territorial seas.”

Id. § 1362(7).

of

delegated

the

CWA,

Congress

To carry out the requirements

authority

under

the

Act

to

the

administrators of the United States Environmental Protection Agency
(“EPA”) and the United States Army Corps of Engineers (“the Corps”)

(collectively “the Agencies”).

See id. § 1361(a).

The issues in this

case are whether the Agencies extended their jurisdiction beyond the
limits

of

the

CWA,

failed

to

adhere

to

the

procedures

of

the

Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), and violated
the Constitution by promulgating the WOTUS Rule.
After analyzing the administrative record, and for the reasons
explained

below,

the

Court

holds

that

the

WOTUS

Rule

extends

the

Agencies’ delegated authority beyond the limits of the CWA, and thus is
not a permissible construction of the phrase “waters of the United
States” within the statute, and that the Agencies’ promulgation of the
WOTUS Rule violates the APA’s procedural requirements.

Therefore,

Plaintiffs’ Motions for Summary Judgment, dkt. nos. 199, 203, are
GRANTED.

Intervenor Defendants’ Motion, dkt. no. 211, is DENIED.

The

WOTUS Rule is hereby REMANDED to the Agencies for further proceedings
consistent with this Order.

Intervenor Plaintiffs’ Motion to Amend the

Court’s Preliminary Injunction, dkt. no. 208, is DENIED at this time.
The Court’s Preliminary Injunction, dkt. no. 174, will REMAIN in place
pending the outcome of the ongoing administrative proceedings regarding
the WOTUS Rule.
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, and State of Utah (“the States” or “State

2

Plaintiffs”)1 filed the present lawsuit on June 30, 2015 against the
administrators of the EPA and the Corps challenging the promulgation of
a final agency rule defining the term “waters of the United States,”
Clean Water Rule: Definition of “Waters of the United States,” 80 Fed.
Reg. 37,054 (June 29, 2015) (to be codified at 33 C.F.R. pt. 328), as
used in the CWA, 33 U.S.C. §§ 1344, 1362(7).

Dkt. No. 1.

Since then,

the State Plaintiffs have been joined by the American Farm Bureau
Federation, American Forest & Paper Association, American Petroleum
Institute,

American

Road

and

Transportation

Builders

Association,

Georgia Association of Manufacturers, Georgia Farm Bureau Federation,
Leading Builders of America, National Alliance of Forest Owners, National
Association of Home Builders, National Association of Manufacturers,
National

Cattlemen’s

Association,

National

Beef

Association,

National

Mining

Association,

National

Corn
Pork

Growers
Producers

Council, National Stone, Sand, and Gravel Association, Public Lands
Council, and U.S. Poultry & Egg Association (collectively “the Intervenor
Plaintiffs”) as intervening plaintiffs.

Dkt. Nos. 178, 187.

Because

the Agencies have declined to defend the substantive challenges to the
WOTUS Rule in this case, National Wildlife Federation and One Hundred
Miles (collectively “the Intervenor Defendants”) intervened to defend
the substantive challenges.

Dkt. Nos. 136, 182.

1

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. The North Carolina Department of Environment and Natural Resources
joins the Plaintiff States’ Motion for Summary Judgment on the grounds that the
Agencies violated the notice requirement because the Final Rule was not the
logical outgrowth of the Proposed Rule.
Dkt. No. 203 at 9 n.4.
See infra
section III.A.
Additionally, the State of Wisconsin recently withdrew from
this case. See Dkt. Nos. 252, 253.

3

In this case, Plaintiffs claim that the WOTUS Rule should be vacated
because it violates the CWA, 33 U.S.C. §§ 1344, 1362(7), the APA, 5
U.S.C. § 706(2)(A), as well as the Commerce Clause and Tenth Amendment
of the U.S. Constitution, U.S. Const. art. I, § 8; U.S. Const. amend.
X.
I.

The CWA and the WOTUS Rule

As stated above, Congress enacted the CWA 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 CWA’s principal tools for

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 territorial seas.”

Id.

§ 1311(a), § 1362(12), (14), (7). “Because many of the Act’s substantive
provisions apply to ‘navigable waters,’ the statutory phrase ‘waters of
the United States’ circumscribes the geographic scope of the Act in
certain respects.”

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. __,

138 S. Ct. 617, 624 (2018).

The Act also requires that anyone who

discharges pollutants into navigable waters obtain a permit. Id. (citing
§ 1311(a)).

The process of obtaining a permit can take years and cost

hundreds of thousands of dollars, and discharging into “navigable waters”
without a permit can subject the discharging party to 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).

4

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

identifying the geographic scope of the [Act].”
37,057.

approaches

for

80 Fed. Reg. 37,054 at

The Agencies published the Proposed Rule on April 21, 2014, 79

Fed. Reg. 22,188, and then promulgated the Final Rule on June 29, 2015,
80 Fed Reg. 37,054.

Under the WOTUS Rule, “waters of the United States”

include “(1) All waters which are currently used, were used in the past,
or may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide; (2) All
interstate
territorial

waters,
seas”

§ 328.3(a)(1-3).

including

interstate

(collectively

wetlands;

“primary

[and]

waters”).

(3)

33

The

C.F.R.

The Rule also covers “(4) All impoundments of waters

otherwise identified as waters of the United States under this section.”
Id. § 328.3(a)(4).

The WOTUS Rule then adds three new categories of

waters to the definition of waters of the United States—two that are per
se jurisdictional and one that is jurisdictional on a case-by-case basis.
The first added category of waters is “tributaries.”
covers “[a]ll tributaries” of primary waters.

The Rule

Id. § 328.3(a)(3).

The

Rule defines tributaries as any water “that contributes flow, either
directly

or

through

another

water”

to

a

primary

water

“that

is

characterized by the presence of the physical indicators of a bed and
banks and an ordinary high water mark” (hereinafter “OHWM”).

Id.

§ 328.3(c)(3). The Rule declares for the first time that “remote sensing
sources” or “mapping information” can be used to detect these “physical
indicators.”

80 Fed. Reg. at 37,076-78.
5

The WOTUS Rule also envisions

the use of “desktop tools” for “hydrologic estimation of a discharge
sufficient to create an [OHWM]” to identify the presence of a bed, bank,
and

OHWM,

or

even

the

historical

presence

characteristics are “absent in the field.”

of

such

waters

adjacent

to”

a

primary

physical

Id. at 37,077.

The second per se category is “adjacent waters.”
“[a]ll

where

water,

an

The Rule covers

impoundment,

or

a

tributary, “including wetlands, ponds, lakes, oxbows, impoundments, and
similar waters.”

Id. § 328.3(a)(6).

Under the Rule, “adjacent” means

“bordering, contiguous or neighboring” primary waters, impoundments, or
tributaries, even if they are separated from the primary water by manmade or natural barriers.

Id. § 328.3(c)(1).

The Rule further defines

“neighboring” to mean: (1)“[a]ll waters located within 100 feet of the
[OHWM]” of a primary water, impoundment, or tributary; (2) “[a]ll waters
located within the 100-year floodplain” of a primary water, impoundment,
or tributary and “not more than 1,500 feet from the [OHWM] of such
water”; and (3) “[a]ll waters located within 1,500 feet of the high tide
line” of a primary water, “and all waters within 1,500 feet of the [OHWM]
of the Great Lakes.”

33 C.F.R. § 328.3(c)(2).

The Rule explains that

if any portion of a water defined as neighboring is within one of these
distance limitations, then the entire water is considered neighboring.
Id.

The Rule also excludes from the definition of “adjacent” waters

those “[w]aters being used for established normal farming, ranching, and
silviculture activities.”

Id. § 328.3(c)(1).

The third category does not define waters as per se jurisdictional,
but

rather

determines

on

a

case-by-case

6

basis

if

waters

have

a

“significant

nexus”

to

a

primary

water.

Id.

§ 328.3(a)(8).

Specifically, this category covers all waters, any part of which are
within the “100-year floodplain” of a primary water, and all waters, any
part of which are within 4,000 feet of the high tide line or OHWM of a
primary water, impoundment, or tributary “where they are determined on
a case-specific basis to have a significant nexus to” a primary water.
Id.

Under the Rule, a water has a “significant nexus” to a primary

water “when any single function or combination of functions performed
by the water, alone or together with similarly situated waters in the
region,

contributes

significantly

to

the

chemical,

biological integrity of the nearest” primary water.

physical,

or

Id. § 328.3(c)(5).

The Rule lists the following functions as relevant to the significant
nexus evaluation:
(i) Sediment trapping, (ii) Nutrient recycling, (iii)
Pollutant trapping, transformation, filtering, and transport,
(iv) Retention and attenuation of flood waters, (v) Runoff
storage, (vi) Contribution of flow, (vii) Export of organic
matter, (viii) Export of food resources, and (ix) Provision
of life cycle dependent aquatic habitat (such as foraging,
feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a [primary water].
Id.
Under the WOTUS Rule’s new definition of “waters of the United
States,” the Agencies estimated that the Rule would increase federal
“positive jurisdictional determinations” in the United States from 2.84%
to 4.65% annually.

80 Fed. Reg. at 37,101.

The State Plaintiffs

characterize this increase as “unrealistically underinclusive.”
No. 203 at 17.

7

Dkt.

II.

Procedural History

The WOTUS Rule’s effective date was August 28, 2015, but 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.

On August 27, 2015, this Court issued an order denying the preliminary
injunction for lack of jurisdiction, holding that original jurisdiction
lay with the Courts of Appeals.

Dkt. No. 77.

Meanwhile, similar lawsuits2 were brought around the country.

The

same day that this Court decided it lacked jurisdiction (August 27,
2015), the District of North Dakota granted a preliminary injunction to
thirteen other states3 challenging the WOTUS Rule.

North Dakota v.

E.P.A., 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 such, this Court reopened this action and

considered the State Plaintiffs’ Motion for a Preliminary Injunction,

2

The Court understands that lawsuits challenging the WOTUS Rule are pending
throughout the country in the following districts: the District of North Dakota
(Case No. 3:15-cv-59: summary judgment motions pending); the Southern District
of Texas (Case No. 3:15-cv-162: summary judgment granted and WOTUS Rule remanded
to Agencies to be considered in accordance with the court’s order); the Southern
District of Ohio (Case No. 2:15-cv-2467: motion for preliminary injunction
pending); the Northern District of Oklahoma (Case No. 4:15-cv-381: motions for
preliminary injunction pending for two consolidated cases); the Northern
District of Georgia (Case No. 1:15-cv-2488: case stayed); the Northern District
of Florida (4:14-cv-579: case stayed); the District Court for the District of
Columbia (Case No. 1:16-cv-1279: administratively closed); and the Northern
District of California (Case No. 18-cv-3521: case stayed pending case management
conference). Dkt. No. 238 at 2-3.
3 Those states are North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho,
Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming.

8

dkt. no. 149, granted the States’ Motion, and on June 8, 2018, enjoined
enforcement of the WOTUS Rule in the states that were parties to the
case. Dkt. No. 174. After issuing the preliminary injunction, the Court
allowed the Intervenor Defendants, dkt. no. 182, and the Intervenor
Plaintiffs, dkt. no. 187, to join the case as intervening parties.
Subsequently,

the

State

Plaintiffs

and

Intervenor

motions for summary judgment on August 31, 2018.

Plaintiffs

filed

Dkt. Nos. 199, 203.

Intervenor Plaintiffs also filed a Motion to Amend the preliminary
injunction to apply nationwide.

Dkt. No. 208.

In response to the

Plaintiffs’ motions for summary judgment, Intervenor Defendants filed a
response as well as their own cross-motion for summary judgment.
Nos. 211, 213.

Dkt.

The Agencies responded to the Plaintiffs’ motions for

summary judgment, but they responded only to the Plaintiffs’ procedural
claims, deciding not to take a position on the merits of the substantive
challenges to the WOTUS Rule.

Dkt. No. 219 (correcting prior response

at Dkt. No. 215).
While this case has been pending, things have changed around the
country involving the WOTUS Rule.

The President of the United States

issued an executive order in February 2017 for reconsideration of the
WOTUS Rule.

Exec. Order No. 13,778, 82 Fed. Reg. 12,497 (Feb. 28, 2017).

In response, the Agencies proposed a rule on July 27, 2017 that, once
implemented, would rescind the WOTUS Rule and recodify the pre-2015
regulatory definition of “waters of the United States.”

See Definition

of “Waters of the United States” – Recodification of Pre-Existing Rules,
82 Fed. Reg. 34899, 34901-02.

Then, in November 2017, following oral

argument in National Association of Manufacturers v. Department of
9

Defense, 138 S. Ct. at 617, the Agencies proposed another new rule.

That

rule, known as the “Applicability Rule,” became final on February 6,
2018.

Definition of “Waters of the United States”—Addition of an

Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5,200 (Feb.
6, 2018) (to be codified at 33 C.F.R. pt. 328).

The Applicability Rule

is identical to the WOTUS Rule but provides an effective date of February
6, 2020.

Various parties then challenged the Applicability Rule in

several lawsuits.4

On August 16, 2018, a court in the District of South

Carolina enjoined the Applicability Rule from taking effect for violating
the APA.

S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d

959, 969 (D.S.C. 2018).
Western

District

violating the APA.

of

Then, on November 26, 2018, a court in the

Washington

vacated

the

Applicability

Rule

for

Puget Soundkeeper All. v. Wheeler, No. C15-1342-JCC,

2018 WL 6169196, at *7 (W.D. Wash. Nov. 26, 2018).

As a result of these

two decisions, the WOTUS Rule went into effect in the twenty-two states
(and the District of Columbia) that are not covered by either this
Court’s or another court’s preliminary injunction.
7.

See Dkt. No. 208 at

Then, on December 11, 2018, the Agencies announced a new proposed

rule revising the definition of “waters of the United States” to replace
the 2015 WOTUS Rule at issue in this case.

Dkt. No. 233 at 3.

That

proposed rule was published in the Federal Register for notice and
comment on February 14, 2019.

Revised Definition of “Waters of the

United States,” 84 Fed. Reg. 4154 (Feb. 14, 2019) (to be codified at 33

4

See Compl., New York v. Pruitt, No. 1:18-cv-1030-JPO (S.D.N.Y. Feb. 7, 2018);
Compl., Nat. Res. Def. Council, Inc. v. E.P.A., No. 1:18-cv-1048-JPO (S.D.N.Y.
Feb. 6, 2018); Compl., S.C. Coastal Conservation League v. Pruitt, No. 2:18cv-330-DCN (D.S.C. Feb. 6, 2018); Puget Soundkeeper All. v. Wheeler, 2:15-cv01342-JCC (W.D.W. Aug. 20, 2015).

10

C.F.R. pt. 328).

Finally, on May 28, 2019, the District Court for the

Southern District of Texas found that the WOTUS Rule violated the APA
and remanded the Rule to the Agencies.

Texas v. United States Envtl.

Prot. Agency, No. 3:15-CV-00162, 2019 WL 2272464, at *1 (S.D. Tex. May
28, 2019).
STANDARD OF REVIEW
Because the CWA does not provide a separate standard of review of
EPA decisions, judicial review of final EPA actions is governed by the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 623 (2018).

See Nat’l Ass’n
Under the APA,

a court may “hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; . . . in excess of
statutory jurisdiction, authority, or limitations, or short of statutory
right; [or] without observation of procedure required by law.”

5 U.S.C.

§ 706 (2).
“[W]hen a party seeks review of agency action under the APA [before
a district court], the district judge sits as an appellate tribunal.”
Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).
Challenges to agency action under the APA are properly adjudicated on
cross-motions for summary judgment. See, e.g., Fla. Fruit & Vegetable
Ass’n v. Brock, 771 F.2d 1455, 1459 (11th Cir. 1985) (“The summary
judgment procedure is particularly appropriate in cases in which the
court is asked to review . . . a decision of a federal administrative
agency.”).

However, the standards set forth in Federal Rule of Civil

11

Procedure 56 do not apply.

Fulbright v. McHugh, 67 F. Supp. 3d 81, 89

(D.D.C. 2014), aff’d sub nom. Fulbright v. Murphy, 650 F. App’x 3 (D.C.
Cir. 2016) (explaining that although “summary judgment is an appropriate
procedure for resolving” APA challenges, “the standard set forth in Rule
56(a) does not apply”).

Therefore, “[a]t the summary judgment stage [of

APA challenges] the court does not look at whether there is a genuine
issue of material fact, but instead turns directly to the question of
the validity of the challenge.”

Malladi v. Brown, 987 F. Supp. 893, 922

(M.D. Ala. 1997), aff’d sub nom. United States v. Ponder, 150 F.3d 1197
(11th Cir. 1998).

The Court’s judicial review in this case is limited

to the administrative record.

Camp v. Pitts, 411 U.S. 138, 142 (1973)

(“[T]he focal point for judicial review should be the administrative
record already in existence, not some new record made initially in the
reviewing court.”)
DISCUSSION
The Plaintiffs raise various substantive and procedural challenges
against the WOTUS Rule.

Before reaching those issues, the Court will

determine in Section I whether the Plaintiffs’ challenges in this case
are ripe.

Proceeding to the merits of the challenges, the Court will

analyze the Plaintiffs’ arguments under the CWA in Section II.

In

Section III, the Court will address Plaintiffs’ procedural challenges
to the WOTUS Rule under the APA.

Finally, the Court will address the

constitutional challenges to the Rule in Section IV.

12

I.

Ripeness
Before reaching the merits of this case, the Court must first

determine whether this case is ripe for review.

The Agencies argue that

the case is not ripe and that the Court should decline to decide the
case on the merits because the WOTUS Rule is currently stayed under this
Court’s preliminary injunction and the Agencies are actively working to
repeal the WOTUS Rule and replace it with a new rule.

In other words,

the Agencies contend that this case is not prudentially ripe. Plaintiffs
argue that this case is ripe because a final rule has been promulgated,
the WOTUS Rule would otherwise be in effect if not for this Court’s
preliminary injunction, and therefore, a live case and controversy
exists.

After considering these arguments, the Court determines that

the case is ripe for review.
The

Court

first

notes

that

the

Supreme

Court

has

relatively

recently called the prudential ripeness doctrine into question (although
it has declined to directly address the matter).

The Supreme Court has

stated that the doctrine “is in tension with our recent affirmation of
the principle that ‘a federal court’s obligation to hear and decide’
cases within its jurisdiction ‘is virtually unflagging.’”

Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 167 (2014) (citations omitted);
see also Fla. Panthers v. Collier Cty., Fla., No. 213CV612FTM29DNF, 2016
WL 1394328, at *11 (M.D. Fla. Apr. 8, 2016) (“[T]he Court also rejects
plaintiffs’ reliance on ‘prudential’ principles relating to ripeness. A
unanimous

Supreme

Court

has

retreated

from

‘prudential’

standing

principles not founded on Article III requirements, and the Supreme Court
has declined to consider the continuing vitality of the prudential
13

ripeness doctrine where there was a sufficient Article III injury.”
(citations omitted)).

Additionally, the Supreme Court in addressing the

jurisdictional issues involving judicial review of the WOTUS Rule stated
that “[b]ecause 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,’” and that this remained true even if the Agencies
finalized and implemented the Applicability Rule.
138 S. Ct. at 627 (citation omitted).

Nat’l Ass’n of Mfrs.,

Thus, it appears that this Court

can and should decide this case, despite the Agencies’ prudential
ripeness arguments.
Nevertheless, even under the prudential ripeness doctrine, the
Court determines that the challenge to the WOTUS Rule in this case is
ripe for review.

The prudential ripeness doctrine is designed “to

prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial interference
until an administrative decision has been formalized and its effects
felt in a concrete way by the challenging parties.”

Nat’l Park Hosp.

Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003).

“Determining

whether administrative action is ripe for judicial review requires [the
Court] to evaluate (1) the fitness of the issues for judicial decision
and (2) the hardship to the parties of withholding court consideration.”
Id. at 808.

In applying these two prongs, courts also consider “(1)

whether delayed review would cause hardship to the plaintiffs; (2)
whether

judicial

intervention

would
14

inappropriately

interfere

with

further administrative action; and (3) whether the courts would benefit
from further factual development of the issues presented.”

Pittman v.

Cole, 267 F.3d 1269, 1278 (11th Cir. 2001) (citations omitted).
Turning to the fitness prong, this case is fit for review.

The

Eleventh Circuit has explained that the need for factual development and
interference with administrative procedures, specifically before an
agency has the opportunity to finalize its policies, raise fitness
concerns.

Pittman, 267 F.3d at 1278.

exist in this case.

However, no such fitness concerns

First, the WOTUS Rule is a final agency action

because it is a rule that has been promulgated through notice and comment
rulemaking, and it would be in effect in the Plaintiff States if not for
this Court’s preliminary injunction.

Second, there is no need for

further factual development in this case.

Cf. Nat’l Park Hosp. Ass’n,

538 U.S. at 812 (finding case not fit for review where despite the agency
action being final, factual development would “significantly advance
[the Court’s] ability to deal with the legal issues presented” (citation
omitted)).

The Court has the benefit of a very detailed administrative

record, Supreme Court precedent directly on point, and the Parties’
briefs which highlight and organize the substantive and procedural issues
before the Court in this case.

Third, the Court’s adjudication of this

case would not interfere with administrative procedures, especially in
light of its ultimate remedy; rather, it would assist in clarifying the
substantive and procedural problems with the WOTUS Rule, many of which
the Agencies highlight in their brief in pointing to the proposed repeal
of the WOTUS Rule.

See Dkt. No. 219 at 14.

The Agencies argue that the

Court would interfere because the Agencies are working to repeal and
15

replace the WOTUS Rule.

However, the Court finds that ruling on the

merits while also tailoring the remedy to avoid unnecessary interference
with the administrative process will both serve the Court’s role to
adjudicate

cases

before

it

and

assist

in

the

Agencies’

ongoing

administrative proceedings involving the WOTUS Rule.
As for hardship, the Eleventh Circuit has explained that “[w]here
. . . there are no significant agency or judicial interests militating
in favor of delay, [lack of] ‘hardship’ cannot tip the balance against
judicial review.”
2010).
Rule

is

Harrell v. Fla. Bar, 608 F.3d 1241, 1259 (11th Cir.

Still, Plaintiffs can satisfy the hardship prong.
a

final

agency

rule

that

expands

the

scope

The WOTUS
of

federal

jurisdiction over waters of the United States, which, in combination
with the permitting requirements of the CWA, would cause significant and
unrecoverable economic harm to the State Plaintiffs if they were forced
to comply with the Rule.

As detailed in this Court’s preliminary

injunction, adhering to the WOTUS Rule would cost the State Plaintiffs
millions

of

dollars

in

unrecoverable

unrecoverable loss of state sovereignty.

funds,

not

to

mention

the

See Dkt. No. 174 at 19.

The Agencies argue that Plaintiffs are not currently harmed by the
WOTUS Rule because it has been enjoined by this Court.

While this is

technically true, it does not mean that the Plaintiffs do not have a
right to challenge the merits of an allegedly unlawful rule heard and
considered.

Moreover, preliminary injunctions are “by [their] very

nature, interlocutory, tentative, provisional, ad interim, impermanent,
mutable, not fixed or final or conclusive.” Eastman Kodak Co. v. Fotomat

16

Corp., 317 F. Supp. 304, 325 (N.D. Ga. 1969).
final

decisions.

Thus,

while

this

Court’s

They are not meant to be
remedy

will

keep

the

preliminary injunction in place, it does so only after the Court has
fully addressed the merits of Plaintiffs’ challenge and only to allow
the administrative process to play out in light of this decision.
Therefore, the Court will adhere to its virtually unflagging obligation
to hear and decide this case while also balancing that obligation with
the realities of the ongoing administrative process.
II.

CWA

Plaintiffs bring several challenges against the WOTUS Rule under
the CWA.

Specifically, Plaintiffs argue that the Rule is unlawful under

the CWA because, based on the Supreme Court’s interpretation of the CWA,
the Rule extends the Agencies’ jurisdiction over water and land in the
United States beyond their delegated authority provided by the Act.
Plaintiffs argue that the WOTUS Rule is unlawful under the CWA with
respect to its definitions of interstate waters, tributaries, adjacent
waters, and case-by-case waters.

Additionally, Plaintiffs argue that

the WOTUS Rule violates the CWA because it significantly interferes with
land and waters traditionally under state authority without clear intent
from Congress to allow that interference.

After carefully reviewing the

administrative record, the Court finds that the WOTUS Rule violates the
CWA.
A. Background on Supreme Court’s Interpretation of the CWA
On a few occasions, the Supreme Court has interpreted the breadth
of federal jurisdiction within the term “navigable waters” in the CWA.

17

The first was in United States v. Riverside Bayview Homes, Inc., 474
U.S. 121 (1985).

In Riverside Bayview, “the Court upheld the Corps’

jurisdiction over wetlands adjacent to navigable-in-fact waterways.”
Rapanos, 547 U.S. at 766 (Kennedy, J., concurring) (citing Riverside
Bayview, 474 U.S. at 139).

The case involved a wetland that directly

abutted a navigable-in-fact creek that fed into Lake St. Clair, and the
Court held that “the Corps’ ecological judgment about the relationship
between waters and their adjacent wetlands provides an adequate basis
for a legal judgment that adjacent wetlands may be defined as waters
under the Act.”

Riverside Bayview, 474 U.S. at 131, 134.

“The Court

reserved, however, the question of the Corps’ authority to regulate
wetlands other than those adjacent to open waters.”

Rapanos, 547 U.S.

at 766 (Kennedy, J., concurring) (citing Riverside Bayview, 474 U.S. at
131-132, n.8).
About fifteen years later, in Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers (“SWANCC”), 531 U.S. 159, 162
(2001), the Court addressed whether “navigable waters” as defined in the
CWA extended to “an abandoned sand and gravel pit in northern Illinois
which provid[ed] habitat for migratory birds.”

The land at issue in

SWANCC was a long-abandoned sand and gravel pit mining operation that
had

given

way

to

a

“successional

stage

forest,

with

its

remnant

excavation trenches evolving into a scattering of permanent and seasonal
ponds.”

Id. at 163.

The Corps asserted jurisdiction over these ponds

when the plaintiff applied for a permit to dispose nonhazardous solid
waste on the site.

The Corps based its jurisdiction on the Migratory

Bird Rule which classified the ponds as “waters of the United States”
18

because they were “used as habitat by other migratory birds which cross
state lines.”

Id. at 163-64 (quoting 51 Fed. Reg. 41206, 41217 (Nov.

13, 1986) (to be codified at 33 C.F.R. pts. 320-30)).

Distinguishing

the facts of SWANCC from the prior holding of Riverside Bayview, the
Court stated that “[i]t was the significant nexus between the wetlands
and ‘navigable waters’ that informed our reading of the CWA in Riverside
Bayview.” Id. at 167. The Court found that extending jurisdiction under
the CWA to isolated, intrastate ponds based on their use as a habitat
for migratory birds would read “the term ‘navigable waters’ out of the
statute,” thereby violating the plain language of the CWA.

Id. at 172.

The Court reasoned that although it had said in Riverside Bayview that
the word “navigable” was of “limited import,” it “is one thing to give
a word a limited effect and quite another to give it no effect whatever.”
Id. (citing Riverside Bayview, 474 U.S. at 133).
Five years later, the Court issued its most recent decision on the
scope of the CWA’s coverage of “navigable waters” in Rapanos v. United
States, 547 U.S. at 715.

At issue in Rapanos was the Corps’ assertion

of jurisdiction—based on its then definition of “waters of the United
State”—over wetlands adjacent to tributaries that eventually empty into
traditional navigable waters.
opinion.

The Court failed to reach a majority

A four-justice plurality found that the “Corps’ expansive

interpretation of . . . waters of the United States is . . . not based
on a permissible construction of the [CWA]” and held that waters of the
United

States

only

included

“relatively

permanent,

standing

or

continuously flowing bodies of water” and that only wetlands with a
continuous surface connection to those relative permanent waters could
19

be considered “adjacent” under the CWA.

Id. at 739, 742.

A four-justice

dissent deferred to the Corps’ broad interpretation of the CWA finding
that the assertion of jurisdiction over wetlands adjacent to other
waters, including tributaries, was reasonable under the statute.

Id.

at 787-88 (Stevens, J., dissenting).
Justice Kennedy wrote a concurring opinion that was more limited
than

the

dissent’s

expansive

plurality’s narrow reading.

reading

but

also

broader

than

the

Taking language from SWANCC, he established

a different rule: the significant-nexus test.

Summarizing the Court’s

prior cases on the issue, Justice Kennedy explained that
[t]aken together these cases establish that in some
instances,
as
exemplified
by
Riverside
Bayview,
the
connection between a nonnavigable water or wetland and a
navigable water may be so close, or potentially so close,
that the Corps may deem the water or wetland a “navigable
water” under the Act. In other instances, as exemplified by
SWANCC, there may be little or no connection.
Absent a
significant nexus, jurisdiction under the Act is lacking.
Id. at 767 (Kennedy, J., concurring). Justice Kennedy held that wetlands
possess a significant nexus, “and thus come within the statutory phrase
‘navigable waters,’” when they, “either alone or in combination with
similarly

situated

lands

in

the

region,

significantly

affect

the

chemical, physical, and biological integrity of other covered waters
more readily understood as ‘navigable.’”
concurring).
speculative

Id. at 780 (Kennedy, J.,

In contrast, when “‘wetlands’ effects on water quality are
or

insubstantial,

they

fall

outside

the

encompassed by the statutory term ‘navigable waters.’”

zone

fairly

Id.

Based on this rule, Justice Kennedy held—based on the reasonable
inference

of

ecologic

interconnection—that
20

the

Corps’

assertion

of

jurisdiction over wetlands adjacent to navigable-in-fact waters was
lawful under Riverside Bayview.

But, he also found that while the Corps

could “identify categories of tributaries that, due to their volume of
flow . . . , their proximity to navigable waters, or other relevant
considerations, are significant enough that wetlands adjacent to them
are likely, in the majority of cases,” to have a significant nexus to
navigable waters, the “Corps’ existing standard for tributaries . . .
provides no such assurance.”

Id. at 781 (Kennedy, J., concurring).

He

found that the Corps’ existing definition of tributaries, which included
waters that “feed[] into a traditional navigable water (or tributary
thereof) and possess an [OHWM],” was so broad that it left “wide room
for regulation of drains, ditches, and streams remote from any navigablein-fact water and carrying only minor water volumes toward it.”

Id.

As

a result, he found that the breadth of that definition of tributaries
“preclud[ed]

its

adoption

as

the

determinative

measure

of

whether

adjacent wetlands are likely to play an important role in the integrity
of

an

aquatic

understood.”

system

Id.

comprising

navigable

waters

as

traditionally

Under that standard, he found that “in many cases”

wetlands adjacent to tributaries would be “little more related to
navigable-in-fact waters than were the isolated ponds held to fall beyond
the Act’s scope in SWANCC.”
Therefore,

Justice

Kennedy

Id. at 781-82 (Kennedy, J., concurring).
concluded

that

“[a]bsent

more

specific

regulations . . ., the Corps must establish a significant nexus on a
case-by-case basis when it seeks to regulate wetlands based on adjacency
to nonnavigable tributaries.”

Id. at 782 (Kennedy, J., concurring).

21

Despite the Supreme Court’s failure to reach a majority opinion in
Rapanos, the Eleventh Circuit has determined that Justice Kennedy’s
concurring opinion controls.

United States v. Robinson, 505 F.3d 1208,

1221 (2007) (“[W]e join the Seventh and Ninth Circuits’ conclusion that
Justice Kennedy’s ‘significant nexus’ test provides the governing rule
of Rapanos.”).

Thus, the Court is bound to apply Justice Kennedy’s

significant-nexus test to the WOTUS Rule in this case.

See id. at 1222

(“[U]nder Justice Kennedy’s concurrence, a water can be considered
‘navigable’ under the CWA only if it possess a ‘significant nexus’ to
waters that ‘are or were navigable in fact or that could reasonably be
so made.’” (quoting Rapanos, 547 U.S. at 759 (Kennedy, J., concurring))).
B. Judicial Review of Agency Action and Deference under CWA
Before getting to the merits of Plaintiffs’ challenges to the WOTUS
rule under the CWA, the Court must first determine what type of judicial
review to apply to these claims.

The parties sharply disagree on this

matter. Plaintiffs couch their arguments against the WOTUS Rule in terms
of the Rule violating the CWA and exceeding the Agencies’ authority under
the CWA, and they contend that the Agencies’ interpretation of the CWA
in the Rule is not entitled to Chevron deference.

See Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843
(1984).

Intervenor Defendants articulate their defense of the Rule in

terms of highly deferential arbitrary and capricious review and assert
that the WOTUS Rule is entitled to Chevron deference.
The Court first determines that the challenge in this case under
the CWA is properly characterized as a challenge to the Agencies’

22

authority under the CWA and its interpretation of “waters of the United
States.”

In other words, the issues under the CWA are those of law and

statutory interpretation.

As such, Plaintiffs’ challenges under the CWA

most aptly fall under the APA as claims that an agency action was “in
excess of statutory jurisdiction, authority, or limitations, or short
of statutory right” rather than claims that the action was “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.”

5 U.S.C. § 706(2)(A), (C).

Therefore, the Court must determine

if the Agencies’ interpretation of the phrase “waters of the United
States”

exceeded

their

statutory

authority

by

extending

their

jurisdiction over waters beyond those which Congress intended the CWA
to cover.
Because this case involves the Agencies’ interpretation of the CWA,
it invokes the well-known Chevron deference standard.
U.S. at 843.

See Chevron, 467

The Chevron doctrine can be summarized as follows:

First, applying the ordinary tools of statutory construction,
the court must determine whether Congress has directly spoken
to the precise question at issue. If the intent of Congress
is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress. But if the statute is silent
or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a
permissible construction of the statute.
City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 296 (2013).

However,

Chevron’s application in this case is not so straightforward.

First,

“[i]t goes without saying that if an agency action exceeds its statutory
authority, the agency is entitled to no deference under Chevron.”

Glob.

Tel*Link v. Fed. Commc’ns Comm’n, 866 F.3d 397, 417 (D.C. Cir. 2017).
Therefore, while it is clear that the Agencies had authority to pass
23

regulations interpreting the phrase “waters of the United States,” that
authority is not limitless.

Second, the Court is not “obliged to defer

to an agency’s interpretation of Supreme Court precedent under Chevron
or any other principle.”

Akins v. Fed. Election Comm’n, 101 F.3d 731,

740 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11,
13 (1998); see also Employer Sols. Staffing Grp. II, L.L.C. v. Office
of Chief Admin. Hearing Officer, 833 F.3d 480, 484 (5th Cir. 2016) (“[A]n
agency’s interpretations of caselaw are reviewed de novo.”).

Thus, the

Agencies’ interpretation of Justice Kennedy’s significant-nexus test, or
any other part of his opinion in Rapanos, is not entitled to deference.
To

the

extent

that

Chevron

does

apply

to

the

Agencies’

interpretations of the CWA in the WOTUS Rule, the plurality and Justice
Kennedy

in

Rapanos

make

interpretations has limits.

clear

that

any

deference

owed

to

those

Justice Scalia, writing for the plurality,

ruled that “waters of the United States . . . does not include channels
through which water flows intermittently or ephemerally, or channels
that periodically provide drainage for rainfall.”
739.

Rapanos, 547 U.S. at

Based on this rule, he quoted Chevron when he concluded that “[t]he

Corps’ expansive interpretation of ‘the waters of the United States’ is
thus not ‘based on a permissible construction of the statute.’”
(quoting Chevron, 467 U.S. at 843).

Id.

Furthermore, in criticizing the

dissent’s deference to the Corps, Justice Scalia conceded that “‘waters
of the United States’ is in some respects ambiguous” but found that
“[t]he scope of that ambiguity . . . does not conceivably extend to
whether storm drains and dry ditches are ‘waters,’ and hence does not
support the Corps’ interpretation.”
24

Id. at 752 (emphasis in original).

He also criticized Justice Stevens’ dissent by stating that “[h]is error
consists of giving that agency more deference than reason permits.”
at 756.

Id.

Justice Roberts, in his concurrence, recognized that agencies

had “generous leeway” to interpret statutes and that “[g]iven the broad,
somewhat ambiguous, but nonetheless clearly limiting terms Congress
employed in the [CWA], the Corps and the EPA would have enjoyed plenty
of room to operate in developing some notion of an outer bound to the
reach of their authority.”
However,

he

found

that

Id. at 758 (Roberts, J., concurring).

“[r]ather

than

providing

guidance

meriting

deference under our generous standards, the Corps chose to adhere to its
essentially boundless view of the scope of its power.”

Id.

Finally,

Justice Kennedy believed that the plurality’s limits under the CWA gave
“insufficient deference . . . to the authority of the Executive to
implement [the CWA],” but he also found that the dissent’s deference to
the Corps extended too far.

Id. at 778 (Kennedy, J., concurring).

Specifically, he found that “the dissent would permit federal regulation
whenever wetlands lie alongside a ditch or drain, however remote and
insubstantial,
waters,”

and

that

eventually

concluded

that

may

flow

“the

into

deference

traditional
owed

interpretation of the statute does not extend so far.”

to

navigable

the

Corps’

Id.

What these statements from Rapanos show is that, despite the
deferential standard of Chevron, both the plurality and Justice Kennedy
understood the CWA to have limits on how far the Agencies could extend
their jurisdiction over waters through interpreting the CWA.

Although

the plurality and Justice Kennedy disagreed with what those limits were,
for

the

purposes

of

this

case,

the
25

limits

of

Justice

Kennedy’s

significant-nexus test apply.

See Robinson, 505 F.3d at 1221 (holding

that Justice Kennedy’s opinion in Rapanos is controlling).

As such,

this Court must review the WOTUS Rule’s interpretation of “waters of the
United States” in light of those limits to the CWA.

In doing so, the

Court determines that the WOTUS Rule extends jurisdiction over “remote
and insubstantial” waters, which under Justice Kennedy’s opinion in
Rapanos, is not a “permissible construction of the statute.”
547 U.S. at 739 (citation omitted).

Rapanos,

Thus, the Court finds, like Justice

Kennedy, that “[t]he deference owed to the Corps’ interpretation of the
statute does not extend so far.”

Rapanos, 547 U.S. at 779 (Kennedy, J.,

concurring).
A. Interstate Waters
Plaintiffs

first

challenge

the

WOTUS

Rule’s

definition

of

interstate waters arguing that the Agencies exceeded their statutory
authority under the CWA by asserting jurisdiction over all interstate
waters, including non-navigable interstate waters.

Defendants argue

that Plaintiffs’ challenge of the interstate waters definition is timebarred because the WOTUS Rule did not change that definition, and even
if Plaintiffs’ challenge is not time-barred, the Intervenor Defendants
argue that the definition is lawful under the CWA.

The Court will first

address the procedural time-bar issue before proceeding to the merits
of the interstate waters definition.

26

1. Plaintiffs’ challenge to the WOTUS Rule’s definition
of interstate waters is timely

Plaintiffs’ challenge to the WOTUS Rule’s definition of interstate
waters is timely because the Agencies reopened the issue in the Proposed
Rule.

The general rule is that suits challenging final agency actions

under the APA must be filed within six years of the right of action
accruing.

See 28 U.S.C. § 2401(a); Nat’l Ass’n of Mfrs. v. Dep’t of

Def., 138 S. Ct. 617, 626-27 (2018) (explaining that challenges to final
agency actions under the APA “must be filed within six years after the
claim accrues”).

“The right of action first accrues on the date of the

final agency action.”

Washington All. of Tech. Workers v. United States

Dep’t of Homeland Sec., 892 F.3d 332, 342 (D.C. Cir. 2018).

For

rulemaking, the date of the final agency action is the date a final rule
is promulgated.
action.”).

See id. (“The 1992 Rule was unquestionably final agency

Here, interstate waters have been included in the definition

of waters of the United States since early agency regulations dating
back to 1978, see 33 C.F.R. § 323.2(a)(4) (1978) (“The term ‘waters of
the United States’ means . . . Interstate waters and their tributaries,
including adjacent wetlands . . . .”), and the specific regulatory text
on interstate waters has not changed since 1983, 33 C.F.R. § 323.2(a)(2)
(1983)

(defining

waters

of

the

United

States

interstate waters including interstate wetlands”).

as

including

“[a]ll

Therefore, the six-

year window to challenge the statutory authority of the interstate waters
definition closed, at the very latest, in 1983.

27

However, an agency can reopen a previously decided final action
even if the statute of limitations has run.

As the D.C. Circuit has

explained, the “[reopening] doctrine arises where an agency conducts a
rulemaking or adopts a policy on an issue at one time, and then in a
later rulemaking restates the policy or otherwise addresses the issue
again without altering the original decision.”
Workers, 892 F.3d at 345 (citation omitted).

Washington All. of Tech.

“If the reopening doctrine

applies, it ‘allows an otherwise stale challenge to proceed because the
agency opened the issue up anew, and then reexamined and reaffirmed its
prior decision.’”

Id. at 346 (quoting P&V Enters. v. Army Corps of

Eng’rs, 516 F.3d 1021, 1023 (D.C. Cir. 2008)).

In Ohio v. E.P.A., 838

F.2d 1325, 1328 (1988), the D.C. Circuit held that an agency had reopened
a previously decided issue when four factors were present:

“the agency

(1) proposed to make some change in its rules or policies, (2) called
for comments only on new or changed provisions, but at the same time (3)
explained the unchanged, republished portions, and (4) responded to at
least one comment aimed at the previously decided issue.”

Pub. Citizen

v. Nuclear Regulatory Comm’n, 901 F.2d 147, 150–51 (D.C. Cir. 1990)
(citing Ohio, 838 F.2d at 1328).

But, a year later, the same court

limited its holding in Ohio v. E.P.A. stating that the rule in that case
“is not a license for bootstrap procedures by which petitioners can
comment on matters other than those actually at issue, goad an agency
into a reply, and then sue on the grounds that the agency has re-opened
the issue.”

Am. Iron & Steel Inst. v. E.P.A., 886 F.2d 390, 398 (D.C.

Cir. 1989).

Taking these two decisions together, the D.C. Circuit has

explained the rule as follows:
28

the crucial question . . . is whether an agency has in fact
reopened an issue, explicitly or implicitly; the four factors
mentioned in [Ohio v. E.P.A.] are indeed relevant evidence of
reopening, but the court cannot stop there. It must look to
the entire context of the rulemaking including all relevant
proposals and reactions of the agency to determine whether an
issue was in fact reopened.
Pub. Citizen, 901 F.2d at 150.
Considering the four factors in Ohio v. E.P.A. in light of the
entire context of the rulemaking, the Court determines that the Agencies
reopened the issue of the definition of interstate waters in this case.
Here, all four of the factors from Ohio v. E.P.A. are met.

The agencies

(1) proposed to make changes to the definition of waters of the United
States, (2) called for comments only on new or changed provisions, 79
Fed. Reg. at 22200, but at the same time (3) took seven pages of the
Proposed Rule to explain and justify the continued inclusion of all
interstate waters, regardless of navigability or flow, in the WOTUS Rule,
id. at 22200-01, 22254-59, and (4) responded to comments that asserted
“that interstate waters required a significant nexus to traditional
navigable waters to be jurisdictional after Rapanos” by stating that the
Agencies “disagreed” for the “reasons described above, Appendix B to the
proposed rule, and in the Technical Support Document,” 80 Fed. Reg. at
37075.

However, the Court must break this analysis down further by

analyzing these factors in light of the entire context of the rulemaking
process of the WOTUS Rule.
On one hand, the Agencies specified in the Proposed Rule and
reaffirmed in the Final Rule that the WOTUS Rule did not change the
existing inclusion of interstate waters in the definition of waters of

29

the United States.

79 Fed. Reg. at 22200 (“The existing EPA and Corps

regulations define ‘waters of the United States’ to include interstate
waters, including interstate wetlands and the agencies’ proposal today
does not change that provision of the regulations.”); 80 Fed. Reg. at
37074 (same); see also 79 Fed. Reg. at 22254 (“The agencies’ proposal
today makes no change to the interstate waters section of the existing
regulations and the agencies would continue to assert jurisdiction over
interstate waters, including interstate wetlands.”).

Moreover, the

definition of interstate waters had been included in the definition of
waters of the United States at least

since 1983.

See 33 C.F.R.

§ 323.2(a)(2) (1983).
However, on the other hand, the Agencies spent considerable effort
defending, justifying, and advocating for the inclusion of all interstate
waters in the definition of waters of the United States in the Proposed
Rule.

Specifically, the Agencies advocated for continuing to include

all interstate waters in light of the Supreme Court’s decision in Rapanos
and for basing the new definitions of tributaries, adjacent waters, and
case-by-case waters, in part, on interstate waters.

At the beginning

of the Proposed Rule, the Agencies stated that they were seeking public
comment on a “proposed rule defining the scope of waters protected under
the Clean Water Act (CWA), in light of the U.S. Supreme Court cases in
U.S. v. Riverside Bayview, . . . Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United
States (Rapanos).”

79 Fed. Reg. at 22188.

In this context of Supreme

Court precedent on the definition of waters of the United States, the
Agencies spent significant effort arguing that the continued inclusion
30

of all interstate waters was justified under that precedent. In Appendix
B to the Proposed Rule, the Agencies argued that the CWA’s language,
structure, and legislative history justified including all interstate
waters, that Supreme Court precedent justified including all interstate
waters without regard to navigability, that the SWANCC and Rapanos
decisions

did

not

constrain

the

Agencies’

jurisdiction

over

non-

navigable interstate waters, and that the Agencies had long included
interstate waters in their own interpretations of the term “navigable
waters.”

79

Fed.

Reg.

at

22254-59.

But,

despite

this

lengthy

substantive argument for including the definition of interstate waters,
the Agencies maintained that this definition was not being changed by
the Proposed Rule and now argue that they did not reopen the issue.
Looking at the entire context, the Agencies reopened the issue of
interstate waters.

First, despite the Agencies stating that they were

not changing the inclusion of interstate waters in the definition of
waters of the United States, they spent significant effort justifying
that decision in light of recent Supreme Court precedent—likely realizing
that such precedent called into question the inclusion of such waters
regardless of navigability.

In American Iron and Steele Institute, the

court found that the proposed rule in that case “lacked any sustained
attempt to reiterate the reasons” it had given to justify the provision
at issue in the prior regulation.

886 F.2d at 398.

Here, the roughly

seven-page5 defense of the continued inclusion of interstate waters was

5

“Seven pages” fails to accurately describe the extensive discussion in Appendix
B advocating for the inclusion of interstate waters in the WOTUS Rule. The
discussion extends for over eight sections and subsections and fifty paragraphs.
The point being, the discussion defending interstate waters in the Proposed

31

more than a “sustained attempt” to justify that inclusion.
Agencies

responded,

albeit

very

briefly,

to

comments

Second, the
arguing

that

interstate waters also had to have a significant nexus to navigable
waters after Rapanos.

After summarizing the legal arguments put forth

in the Proposed Rule justifying the inclusion of interstate waters, the
Agencies responded that they “disagree for the reasons described above,
in Appendix B to the proposed rule, and in the Technical Support
Document.”

80 Fed. Reg. at 37075; see also, Clean Water Rule Comment

Compendium Topic 2: Traditional Navigable Waters (TNWs), Interstate
Waters,

Territorial

Seas,

and

Impoundments

at

54-76,

https://www.epa.gov/sites/production/files/2015‐06/documents/cwr_respo
nse_to_comments_2_tnw.pdf (stating in the “summary response” that the
rule “does not change that provision of the regulations” but then
responding
Preamble”).
Support

to

comments

by

saying

“See

Summary

Response,

TSD

and

Importantly, the Agencies pointed back to the Technical

document

and

the

seven-page

interstate waters in the Proposed Rule.

defense

of

the

inclusion

of

Finally, interstate waters are

one of the key elements of the larger WOTUS Rule scheme.

Jurisdiction

over tributaries, adjacent waters, and case-by-case waters is based, in
part, on those three categories’ connections to interstate waters.
Indeed, the Agencies justify basing these categories off of non-navigable
interstate waters in the Proposed Rule.

See 79 Fed. Reg. at 22200.

As

a result, continued inclusion of non-navigable interstate waters creates
broader federal jurisdiction when combined with those other categories.

Rule is enough to constitute its own law review article on the subject.
Fed. Reg. at 22254-59.

32

See 79

Thus, looking at the entire context, the Agencies’ significant
effort to justify the continued inclusion of non-navigable interstate
waters in the definition of waters of the United States in light of
Supreme Court precedent on the issue and their response to comments
pointing to the merits of their prior justifications demonstrate that
the Agencies, despite their attempt to avoid comments on the issue by
saying that the definition had not changed, did in fact reopen the issue
of the inclusion of all interstate waters.

The Agencies did not say

that the issue is not being changed and leave it at that; rather, they
spent considerable ink arguing that the continued inclusion of all
interstate waters in the new definitional scheme was proper and lawful
under the CWA and Supreme Court precedent.

This “sustained attempt” in

the Proposed Rule and the response to comments on the issue in the Final
Rule

make

Therefore,

it

clear

that

Plaintiffs’

this

issue

arguments

was

regarding

reopened
the

for

challenge.

inclusion

of

all

interstate waters regardless of navigability is not time-barred.
2. The WOTUS Rule’s definition of interstate waters
reads navigability out of the CWA
Turning

to

the

merits

of

Plaintiffs’

challenge

to

interstate

waters, the inclusion of all interstate waters in the definition of
“waters of the United States,” regardless of navigability, extends the
Agencies’ jurisdiction beyond the scope of the CWA because it reads the
term navigability out of the CWA.

As Justice Kennedy points out in

Rapanos, “in enacting the [CWA] Congress intended to regulate at least
some waters that are not navigable in the traditional sense.”
at 767 (Kennedy, J., concurring).

However, he also points out that “the

33

547 U.S.

word ‘navigable’ in the Act must be given some effect.”
(Kennedy, J., concurring).

Id. at 779

Here, just like the dissent in Rapanos that

Justice Kennedy criticized, the Agencies’ interpretation of the CWA to
include

jurisdiction

navigability

reads

over

out

all

the

interstate

“central

waters

requirement”

‘navigable’ . . . be given some importance.”

regardless
that

“the

of
word

Id. at 778 (Kennedy, J.,

concurring).
The Agencies’ assertion of jurisdiction over all interstate waters
is

not

a

permissible

construction

of

the

CWA

because

they

assert

jurisdiction over waters that are not navigable-in-fact and otherwise
have

no

significant

nexus

to

any

other

navigable-in-fact

water.

Specifically, the WOTUS Rule states that Agencies have jurisdiction over
all interstate waters “even if they are not navigable” and even if they
“do not connect to such [navigable] waters.”

80 Fed. Reg. at 37, 074.

Therefore, under this definition of interstate waters, any interstate
water, regardless of navigability, flow, or effect on the chemical,
physical,

or

biological

integrity

of

a

navigable-in-fact

water

(a

“significant nexus”) is included under the definition of waters of the
United States.

Under such a broad definition, a mere trickle, an

isolated pond, or some other small, non-navigable body of water would
be under federal jurisdiction simply because it crosses a state line or
lies along a state border.

Because this broad definition would include

waters that have little or no connection to navigable-in-fact waters
like the ponds in SWANCC, the inclusion of all interstate waters violates
the significant-nexus test and therefore exceeds the Agencies’ authority

34

under the CWA.

Rapanos, 547 U.S. at 767 (“Absent a significant nexus,

jurisdiction under the Act is lacking.”).
The inclusion of all interstate waters in the definition of waters
of the United States also exceeds the Agencies’ statutory authority for
another

reason:

the

other

categories

of

waters

in

the

WOTUS

Rule

(tributaries, adjacent waters, and case-by-case waters) are based on,
at least in part, interstate waters.

Thus, a tributary, adjacent water,

or case-by-case water with a connection to a non-navigable interstate
water, such as an isolated pond along a state line, would also be under
federal jurisdiction.

For example, under the WOTUS Rule, the Agencies

could assert jurisdiction over an isolated non-navigable water that is
within 100 feet of a mere trickle across a state line or pond sitting
on a state line or over a water that is within the 100-year floodplain
and within 1,500 feet of that interstate trickle or pond.

See Rapanos

547 U.S. at 769 (Kennedy, J., concurring) (stating that the plurality’s
test “makes little practical sense in a statute concerned with downstream
water quality” when it would include “the merest trickle” but not other
types of water). Moreover, under the case-by-case category, the Agencies
can assert jurisdiction over a water that is within 4,000 feet of the
OHWM of an interstate water so long as the agency finds a significant
nexus to that interstate water.

So, hypothetically, it appears that the

Agencies could assert jurisdiction over an isolated pond, stream, drain,
or

ditch

that

is

within

4,000

feet

of

a

non-navigable,

isolated

interstate water, based on a significant nexus to that interstate water
such as a nexus based on the “provision of life cycle dependent aquatic
habitat . . . for species located in the water.” 33 C.F.R. § 328.3(c)(5).
35

In other words, this definition could, for example, include “the isolated
ponds held to fall beyond the Act’s scope in SWANCC.”
at 782 (Kennedy, J., concurring).
standard”

for

interstate

waters

Rapanos, 547 U.S.

Therefore, “the breadth of this

without

regard

to

navigability

or

significant nexus to a navigable water, “which seems to leave wide room
for regulation of drains, ditches, and streams remote from any navigablein-fact water . . . precludes its adoption” as a per se category of
waters of the United States.

Id. at 781 (Kennedy, J., concurring).

Thus, the Agencies’ inclusion of all interstate waters within the
definition of waters of the United States in the WOTUS Rule extends
beyond their authority under the CWA.
B. Tributaries
Plaintiffs

also

challenge

the

WOTUS

tributaries as impermissible under the CWA.

Rule’s

definition

of

Specifically, Plaintiffs

argue that the definition of tributaries is overbroad in its use of OHWM
and bed and banks as physical indicators of volume and regularity of
flow and in its application in places like the Arid West.

The Intervenor

Defendants respond that the definition of tributaries is based on
extensive scientific research which found that tributaries, as defined
in the Rule, have a significant effect on the physical, chemical, and
biological integrity of navigable waters.

Looking to Justice Kennedy’s

opinion in Rapanos, the Court finds that the Agencies’ assertion of
jurisdiction over all tributaries as defined in the WOTUS Rule is an
impermissible construction of the CWA.
The WOTUS Rule defines waters of the United States to include
“[a]ll tributaries” of primary waters.
36

33 C.F.R. § 328.3(a)(5).

The

Rule defines tributaries as “a water that contributes flow, either
directly

or

through

another

water”

to

a

primary

water

“that

is

characterized by the presence of the physical indicators of a bed and
banks and an [OHWM].”

Id. § 328.3(c)(3).

The definition states that

the OHWM and the bed and banks “demonstrate there is volume, frequency,
and duration of flow sufficient” to “qualify as a tributary.”

Id.

The

definition also explains that a tributary does not lose its status as a
covered water if there are breaks in it—such as bridges, pipes, dams,
wetlands, debris piles, boulder fields, etc.—so long as the physical
indicators can be identified upstream of the break.

Id.

An OHWM is

defined as
that line on the shore established by the fluctuations of
water and indicated by physical characteristics such as a
clear, natural line impressed on the bank, shelving, changes
in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other
appropriate means that consider the characteristics of the
surrounding areas.
33 C.F.R. § 328.3.
The

first

two

problems

with

the

WOTUS

Rule’s

definition

of

tributaries are the use of the OHWM and a bed and banks as physical
indicators of sufficient volume and flow and how those indicators are
determined.

At the time of Rapanos, “the Corps deem[ed] water a

tributary if it [fed] into a traditional navigable water (or a tributary
thereof) and possesse[d] an [OHWM].”
concurring).

547 U.S. at 781 (Kennedy, J.,

Justice Kennedy recognized that the presence of an OHWM

“presumably provides a rough measure of the volume and regularity of
flow.”

Id.

He

also

noted

that

when

that

standard

was

applied

consistently—although he hinted that it might not have been—“it may well
37

provide a reasonable measure of whether specific minor tributaries bear
a sufficient nexus with other regulated waters to constitute ‘navigable
waters’” under the CWA.

Id.

The Agencies continued to utilize an OHWM

in the WOTUS Rule’s definition of tributary in combination with the bed
and banks requirement.

See 80 Fed. Reg. at 37076 (“[T]he rule requires

two physical indicators of flow: There must be a bed and banks and an
indicator of [OHWM].”).

Specifically, the Rule states that “[a] bed and

banks and other indicators of [OHWM] are physical indicators of water
flow and are only created by sufficient and regular intervals of flow.”
Id.

The issue, however, is that despite the Rule’s assertion that these

physical

indicators

ensure

sufficient

and

regular

flow—and

thus

a

significant nexus to downstream navigable waters—the Rule later explains
that these indicators need not actually be physically present but can
instead be determined from computer-based models, historical data, and
mapping technology.
The WOTUS Rule explains that “desktop tools” are critical to
identifying OHWMs and bed and banks when the physical characteristics
of those physical indicators are “absent in the field.”

Id. at 37078.

The Rule states that “[i]n such cases where physical characteristics of
bed and banks and another indicator of [OHWM] no longer exist, they may
be

determined

by

using

other

appropriate

characteristics of the surrounding areas.”

means
Id.

that

consider

the

These other “means” of

showing the “prior existence” of these physical indicators “include but
are not limited to . . . lake and stream gage data, elevation data,
spillway

height,

historic

water

flow

records,

flood

predictions,

statistical evidence, the use of reference conditions, or through the
38

remote sensing and desktop tools described above.”
physical

indicators

that

the

Agencies

assert

Id.

provide

Thus, the
evidence

of

sufficient volume and flow to adhere to Justice Kennedy’s significantnexus test need not actually be physically present in a geographic area
so long as computer programs can decipher that they exist and need not
presently exist so long as those programs can conclude that they have
existed at sometime in the past.

This contradiction shows a departure

from Justice Kennedy’s test.
This definition and method of determining tributaries would allow
tributaries, “however remote and insubstantial,” to be included within
the definition of waters of the United States.

Rapanos, 547 U.S. at 778

(Kennedy, J., concurring). Justice Kennedy’s opinion in Rapanos requires
that minor, non-navigable tributaries have a significant nexus to other
covered waters.

He stated that a water that possesses an OHWM could,

with a “reasonably consistent application,” meet that significant-nexus
test.

Id. at 781 (Kennedy, J., concurring).

However, the WOTUS Rule’s

inclusion of waters that do not presently have an OHWM or bed and banks
but through computer programs could be determined to have possessed those
characteristics in the past stretches the Agencies’ jurisdiction to cover
waters or land that, at present, in the field, bear no evidence of
regularity or volume of flow—factors demonstrating a significant nexus
under Kennedy’s opinion.

So on one hand, the Agencies rely on the

physical indicators as evidence of a significant nexus (because they
show

regularity

and

volume

of

flow)

to

defend

the

definition

of

tributaries, but on the other, they say that these indicators need not
be physically, or currently, present in a certain location so long as
39

they can be found to exist or to have previously existed using computer
technology, statistics, and historical data.

The “breadth of this

standard . . . seems to leave wide room for regulation of drains,
ditches,6

and

carrying

only

Agencies’

streams
minor

remote
water

jurisdiction

well

from

any

volumes
beyond

Kennedy’s interpretation of the CWA.
The

next

problem

with

application in the Arid West.

the

navigable-in-fact

toward
what

it,”
is

thus

allowed

water

and

extending

the

under

Justice

Id.

definition

of

tributaries

is

its

Plaintiffs and Intervenor Defendants spar

over the issue of whether infrequent or one-time extreme weather events
can cause the physical indicators of a tributary to appear in parts of
the Arid West despite the area being otherwise dry and unconnected from
navigable waters.

Justice Kennedy seemed to contemplate that irregular

weather events that cause significant ephemeral flows of water on
otherwise dry ground could fall within the Agencies’ jurisdiction.

See

id. at 769-70. (Kennedy, J., concurring) (rejecting the plurality’s
permanent standing water or continuous flow requirement by citing to
examples of irregular flows of water).

However, this does not mean all

such dry features with certain indicators would fall under the CWA;
rather, only those with a significant nexus to navigable waters would.

6

The WOTUS Rule also includes certain ditches that meet the definition of a
tributary and are not otherwise excluded as tributaries. See 80 Fed. Reg. at
37078 (“Ditches are one important example of constructed features that in many
instances can meet the definition of tributary.”).
The Rule explains that
“[e]vidence, such as current or historic photographs, prior delineations, or
USGS, state and local topographic maps, may be used to determine whether a
ditch” is a tributary under the definition or is instead excluded.
Id. at
37079.

40

Intervenor Plaintiffs point out that the Corps’ own reports from
2006 to 2013 found that “[i]n the arid West . . . the physical features
associated with OHWM are frequently the result of extreme floods or
short-term, high intensity events,” and that as a result, OHWM indicator
delineations can be “inconsistent (over space and time) and problematic”
making “[e]stablishing the extent of the OHWM . . . often difficult.”
Dkt. 199-15 at 10-11 (quoting five different reports from the Corps on
OHWM and the Arid West).

As recently as 2013, a study conducted by the

Corps found “no direct association between OHWM indicators and channel
type or landscape position” and that “OHWM indicators are distributed
randomly throughout the landscape and are not related to specific channel
characteristics.” Id. (quoting Lefebvre et al., Survey of OHWM Indicator
Distribution

Patterns

across

Arid

West

Landscapes

17

(2013),

https://erdc-library.erdc.dren.mil/xmlui/bitstream/handle/11681/5496/E
RDC-CRREL-TR-13-2.pdf?sequence=1&isAllowed=y).

Intervenor Defendants

point out that the 2013 Corps report concluded that six indicators were
found more frequently than others across the landscape and could be
better described as “flow indicators rather than OHWM indicators.”

Id.

Although these flow indicators were found to be “useful for identifying
portions of the channel that have been inundated from the most recent
flow event,” they could not be “used to delineate the lateral extent of
the OHWM.”

Id.

Thus, despite the more frequent presence of these flow

indicators across landscapes in the Arid West, the standard used for
tributaries

in

the

WOTUS

Rule—the

presence

inconsistently and randomly distributed.

of

an

OHWM—was

still

Moreover, the 2013 report does

not show that these flow indicators demonstrate regularity or volume of
41

flow sufficient to have a significant nexus on downstream navigable
waters.
Justice Kennedy stated that “subject to reasonably consistent
application,”

OHWMs

could

provide

a

reasonable

measure

of

minor

tributaries’ significant nexus to navigable waters, but here, the Corps’
own reports suggest that at least in some areas of the Arid West, one
of the two required physical indicators of a tributary—the OHWM—is
randomly and inconsistently distributed throughout the landscape.

As a

result of this random distribution, this definition could very well
include dry areas that have indicators of an OHWM and a bed and banks
as the result of an extreme weather event but that do not otherwise have
a

significant

nexus

to

any

navigable

water.

Therefore,

for

this

additional reason, the WOTUS Rule’s definition of tributary extends
federal jurisdiction beyond that allowed under the CWA.
C. Adjacent Waters
Next, Plaintiffs challenge the WOTUS Rule’s definition of adjacent
waters.
on

Specifically, they argue that because adjacent waters are based

tributaries

and

because

tributaries

are

unlawfully

adjacent waters to tributaries must also be unlawful.

overbroad,

Additionally,

Plaintiffs argue that the specific geographic distance and floodplain
limits for adjacent waters do not ensure that the majority of waters
within those limits have a significant nexus to traditional navigable
waters. Intervenor Defendants respond that the adjacent water definition
and its geographic limits are lawful because they were determined based
on agency expertise and science.
its

combination

with

The Court finds that both because of

tributaries
42

and

the

selection

of

overbroad

geographic limits without showing a significant nexus, the adjacent
waters definition in the WOTUS Rule is unlawful under Justice Kennedy’s
Rapanos opinion.
First, probably the clearest violation of Justice Kennedy’s opinion
in Rapanos is the WOTUS Rule’s inclusion of waters adjacent to nonnavigable tributaries.

In Rapanos, Justice Kennedy held that the

Agencies could identify certain categories of tributaries “that, due to
their volume of flow (either annually or on average), their proximity
to navigable waters, or other relevant considerations, are significant
enough that wetlands adjacent to them are likely, in the majority of
cases, to perform important functions for an aquatic system incorporating
navigable waters.”

547 U.S. at 780–81 (Kennedy, J., concurring).

However, he stated that the Agencies’ definition of tributaries at that
time

provided

concurring).

“no
He

such

assurances.”

explained

that

while

Id.
the

at

781

Corps’

(Kennedy,

definition

J.,
of

a

tributary—a water that “feeds into a traditional navigable water (or a
tributary thereof) and possesses an [OHWM]”—could be a reasonable measure
of minor tributaries having a significant nexus to other covered waters,
when used as the starting point for adjacent wetlands, it was far too
broad.

Id.

Specifically, Justice Kennedy held that the “breadth” of

the definition of tributary seemed “to leave wide room for regulation
of drains, ditches, and streams remote from any navigable-in-fact water
and carrying only minor water volumes toward it.”

Id.

As a result, he

found that the breadth of this definition
precludes its adoption as the determinative measure of
whether adjacent wetlands are likely to play an important
role in the integrity of an aquatic system comprising
navigable waters as traditionally understood. Indeed, in many
43

cases wetlands adjacent to tributaries covered by this
standard might appear little more related to navigable-infact waters than were the isolated ponds held to fall beyond
the Act’s scope in SWANCC.
Id. at 781-82 (Kennedy, J., concurring).

Based on this conclusion,

Justice Kennedy held that “[a]bsent more specific regulations . . . the
Corps must establish a significant nexus on a case-by-case basis when
it

seeks

to

regulate

tributaries.”

wetlands

based

on

adjacency

to

nonnavigable

Id. at 782 (Kennedy, J., concurring).

The same fatal defects that plagued the definition of tributaries
in Rapanos plague the WOTUS Rule here.

The WOTUS Rule categorically

covers all adjacent waters to all tributaries as defined in the Rule,
including “wetlands, ponds, lakes, oxbows, impoundments, and similar
waters.”

33 C.F.R. § 328.3.

The Intervenor Defendants defend this

categorical approach to adjacent waters of non-navigable tributaries by
asserting that the WOTUS Rule adds “more specific regulations” because
it

requires

that

a

tributary

contribute

flow,

either

directly

or

indirectly, to a primary water and that it have a bed and banks in
addition to the OHWM.7 In other words, the Intervening Defendants believe
that

these

“more

specific”

additions

alleviate

Justice

concerns about the breadth of the standard in Rapanos.

Kennedy’s

The Court is not

so convinced.
Despite

the

additional

requirement

of

a

bed

and

banks,

the

definition of tributary when used as a starting point for adjacent waters

7

Justice Kennedy held in Rapanos that “[w]hen the Corps seeks to regulate
wetlands adjacent to navigable-in-fact waters, it may rely on adjacency to
establish its jurisdiction.” 547 U.S. at 782 (Kennedy, J., concurring). But
at issue in this discussion is the regulation of waters adjacent to nonnavigable tributaries to which Justice Kennedy applied a different rule.

44

is not materially different from the definition at issue in Rapanos.
First, the only “more specific” requirement is the addition of bed and
banks.

The definition at issue in Rapanos required that a tributary

“feed[] into a traditional navigable water (or a tributary thereof)” and
possess an OHWM.

547 U.S. at 781 (Kennedy, J., concurring).

The WOTUS

Rule’s definition is essentially the same in that it requires that the
tributary “contribute flow” to a navigable water and have an OHWM—leaving
only bed and banks as a new requirement.

Second, in a way, bed and

banks was already an indicator for tributaries in Rapanos because it is
an indicator of an OHWM.

As the WOTUS Rule explains, a tributary must

have a bed and banks in addition to another indicator of an OHWM such
as “staining, debris deposits, or other[s]” to be a tributary.
Reg. at 37076.

80 Fed.

But, unlike the definition of tributaries in Rapanos,

the WOTUS Rule changes bed and banks from being a sufficient condition
to a necessary condition.

However, the record contains no evidence

demonstrating how the addition of bed and banks as a necessary component
of

a

tributary

does

anything

to

further

limit

the

definition

of

tributaries so as to alleviate Justice Kennedy’s concerns of over-breadth
in Rapanos.

The Rule explains how a bed is below the OHWM and that a

bank is normally above an OHWM, 80 Fed. Reg. at 37076, but it does not
explain how requiring a tributary to have a bed and banks will prevent
the definition from encapsulating “drains, ditches, and streams remote
from any navigable in fact water” like the OHWM did in Rapanos.
547 U.S. at 781 (Kennedy, J., concurring).

Rapanos,

The Intervening Defendants

argue that because the Rule added something beyond just an OHWM, it
necessarily added “more specific regulations.”
45

While this may be true,

they fail to explain how the addition of a bed and banks requirement
would prevent remote and insubstantial waters adjacent to non-navigable
tributaries from falling within the Agencies’ jurisdiction under the
WOTUS Rule.
For these reasons, the Court finds that the Rule’s definition of
tributaries is functionally the same as the definition in Rapanos, and
as a result, the Agencies would have to show, on a case-by-case basis,
that an adjacent water had a significant nexus to a non-navigable
tributary.

Otherwise, adjacent waters to such non-navigable tributaries

could include “remote” waters such as “drains, ditches, and streams”
that have only a “speculative or insubstantial” effect on the quality
of navigable in fact waters.

Id. at 778-781.

Because the Rule instead

categorially includes all adjacent waters to all tributaries, it is an
impermissible construction of the CWA.
Intervenor

Defendants

attempt

to

justify

the

definition

of

tributaries by arguing that Justice Kennedy did not have “the benefit
of 1,200 peer-reviewed scientific publications and hundreds of pages of
technical support to elucidate” that tributaries, as defined in the Rule,
have a significant nexus.

Dkt. No. 211 at 12-13.

The Court has no

reason to doubt the findings of these scientific reports, but despite
what the reports may have found, the Court is bound by Justice Kennedy’s
opinion, including his repudiation of the OHWM as a basis for nonnavigable tributaries and waters adjacent to those tributaries.

The

Supreme Court might one day consider the new wealth of scientific
research on this point, but until then, this Court is constrained by the
limits and reasoning put in place by Justice Kennedy’s controlling
46

opinion.

Because the WOTUS Rule fails to define adjacent waters to non-

navigable tributaries on a case-by-case basis using the significantnexus test, it violates that controlling opinion.
Second, some of the specific geographic limits used in the WOTUS
Rule to define adjacency—more specifically to define neighboring as a
part of adjacency—run afoul of Justice Kennedy’s opinion because the
Rule fails to show that the majority of waters within those limits have
a significant nexus to navigable waters.

It is important to note that

the Supreme Court in Riverside Bayview found that the Agencies could
assert jurisdiction over a wetland that “directly abutted a navigablein-fact creek.”

Rapanos, 547 U.S. at 766 (Kennedy, J., concurring)

(citing Riverside Bayview, 474 U.S. at 131).

Additionally, in Rapanos,

Justice Kennedy held that “[w]hen the Corps seeks to regulate wetlands
adjacent to navigable-in-fact waters, it may rely on adjacency to
establish its jurisdiction.”

Id. at 782 (Kennedy, J., concurring).

Thus, while blanket jurisdiction over waters adjacent to non-navigable
tributaries—as defined in the Rule—is impermissible, adjacency alone can
be used to assert federal jurisdiction when waters are adjacent to
navigable-in-fact waters.

However, that does not mean that adjacency

is endless; rather, adjacent waters still must have a significant nexus
to the navigable-in-fact water.
Looking to the first part of the definition of neighboring, the
WOTUS Rule asserts jurisdiction over all waters located within 100 feet
of an OHWM of a primary water, impoundment, or tributary.

With the

exception of adjacency to tributaries for the reasons discussed in the

47

section above, this geographic limit likely satisfies the significantnexus test.

The WOTUS Rule explains that

Many studies indicate that the primary water quality and
habitat benefits will generally occur within a several
hundred foot zone of a water. In addition, the scientific
literature indicates that to be effective, contaminant
removal needs to occur at a reasonable distance prior to entry
into the downstream traditional navigable waters, interstate
waters, or the territorial seas. Some studies also indicate
that fish, amphibians (e.g., frogs, toads), reptiles (e.g.,
turtles), and small mammals (e.g., otters, beavers, etc.)
will use at least a 100 foot zone for foraging, breeding,
nesting, and other life cycle needs.
80 FR at 37085.

Based on these findings, the Agencies concluded that

“[a]ll waters within 100 feet of a jurisdictional water significantly
affect the chemical, physical, or biological integrity of the waters to
which they are adjacent, and those waters in turn significantly affect
the

chemical,

physical,

or

biological

integrity

of

the

downstream

traditional navigable waters, interstate waters, or the territorial
seas.”

80 Fed. Reg. at 37085.

What these statements from the Rule

demonstrate is that the Agencies chose a specific geographic limit for
neighboring waters of 100 feet, and they did so based on scientific
evidence that specifically justified a limit within a few-hundred feet.
In other words, the Agencies justified their selection of 100 feet by
demonstrating that waters within that specifically chosen limit have a
significant effect on the chemical, physical, and biological integrity
of navigable waters—i.e., a significant nexus.

In light of the specific

scientific findings highlighted by the WOTUS Rule and the Supreme Court’s
prior holdings on adjacent waters, the Court finds that a 100-foot limit,
roughly 30 yards, from a primary navigable water is lawful because waters
within that limit have a significant nexus to the primary waters.
48

However, the Court cannot say the same about the other geographic
limits for neighboring waters in the WOTUS Rule.

The second category

of neighboring waters includes all waters located within the 100-year
floodplain of a primary water, impoundment, or tributary, and not more
than 1,500 feet from the OHWM of such water. 33 C.F.R. § 328.3(c)(2)(ii).
A 100-year floodplain is defined as “the area that will be inundated by
the flood event having a one percent chance of being equaled or exceeded
in any given year.”

80 Fed. Reg. at 37081.

Rather than selecting the

100-year floodplain and 1,500 foot limit in the second category of
neighboring waters based on scientific findings showing that the majority
of waters in those limits had a significant nexus to primary waters,
this

larger

category

was

selected

for

“clarity”

and

Intervenor Defendants’ Reply Brief, Dkt. No. 224 at 12.

convenience.
The Court has

no reason to doubt that these specific limits were selected for clarity
or that such limits might be reasonable, but the question is whether the
waters within those limits have a significant nexus to primary waters
in accordance with Justice Kennedy’s opinion in Rapanos.

Based on the

WOTUS Rule’s justifications, the Court finds that they do not.
As for the 100-year floodplain, the Agencies chose this limit
based, at least in part, on FEMA flood maps.

80 Fed. Reg. at 37,083

(“In drawing lines, the agencies chose the 100-year floodplain in part
because FEMA and NRCS together have generally mapped large portions of
the United States, and these maps are publicly available, well-known and
well-understood.”).

The Agencies explained in the Final Rule that to

determine the boundaries of adjacent waters, they would rely on published
FEMA flood zone maps.

Id. at 37,081.
49

Moreover, Intervenor Defendants

explained that “[t]he 100-year floodplain delineates boundaries for
federally subsidized flood insurance under the National Flood Insurance
Program,” which is a program run by FEMA, and that “[g]iven the welldocumented

flood

absorption

and

attenuation

properties

of

wetlands

protected by the [CWA], defining jurisdiction along the same lines [as
the National Flood Insurance Program] comports with the strong federal
interest in minimizing flood insurance taxpayer subsidies.”

Dkt. No.

224 at 13 n.3.
Selecting a 100-year floodplain on this basis may well be practical
and convenient, but it does not show how or why the waters within that
floodplain, as opposed to a different flood-plain, have a significant
nexus to navigable waters. While Intervenor Defendants point to evidence
in the Technical Support Document showing why waters within floodplains
in general can have a significant effect on the integrity of adjacent
and downstream waters, they do no show why waters within a 100-year
floodplain, as opposed to a 50-year or 200-year floodplain, have a
significant nexus to navigable waters.

Merely stating that “[b]ased on

a review of the scientific literature, the agencies’ technical expertise
and experience, and the implementation value of drawing clear lines”
this floodplain limit has a significant nexus is insufficient.
Fed. Reg. at 37,085.

See 80

Justice Kennedy’s test requires more, and without

more the Court cannot say that the majority of waters within areas with
a one-percent chance of flooding to a designated elevation line within
a given year, i.e., a 100-year floodplain, significantly affects the
quality of navigable waters.

50

The same problem arises for the 1,500-foot limit to the 100-year
floodplain.

To justify that 1,500-foot limit, the WOTUS Rule states

that
[t]his boundary was established in order to protect vitally
important waters within a watershed while at the same time
providing a practical and implementable rule. The agencies
are not determining that waters in the floodplain farther
than 1,500 feet from the [OHWM] never have a significant
nexus. Rather, the agencies are using their technical
expertise to promulgate a practical rule that draws
reasonable boundaries in order to protect the waters that
most clearly have a significant nexus while minimizing
uncertainty about the scope of “waters of the United States.”
Id.

While practical considerations may be valid and important, Justice

Kennedy’s opinion in Rapanos requires that the Agencies demonstrate that
waters within a chosen limit have a significant nexus, and merely stating
that the Agencies have decided that a significant nexus exists based on
“science” and their “expertise” is not sufficient.

Moreover, a 1,500-

limit encompasses much more area than the 100-foot limit discussed above.
Especially in light of the Agencies’ own Scientific Advisory Board’s
finding that “the available science supports defining adjacency or
determination of adjacency on the basis of functional relationships,
rather than solely on the basis of geographical proximity or distance
to jurisdictional waters,”

80 Fed Reg. at 37064, simply choosing a

categorical 1,500-foot limit without showing that the majority of waters
within that limit have a significant nexus to navigable waters is
improper under Justice Kennedy’s test in Rapanos.
For

these

same

reasons,

the

Court

determines

that

the

third

category of neighboring waters within 1,500 feet of a high tide line (or
the OHWM of the Great Lakes) is also unlawfully overbroad.

The Court

makes this determination considering that these bodies of water are
51

larger and thus arguably warrant greater adjacency jurisdiction.
then,

the

Agencies

must

significant-nexus finding.

show

justification

and

support

Even

for

the

To summarize, just because adjacency can be

a factor for jurisdiction under the CWA, that factor is not unlimited
and is still subject to the limits of the significant-nexus test.

With

the exception of the 100-foot limit to certain waters, the WOTUS Rule’s
definition

of

adjacent

and

neighboring

waters

fails

to

meet

the

significant-nexus test and would include jurisdiction over the remote
and insignificant waters that concerned Justice Kennedy in Rapanos.
D. Case-by-case Waters
The State Plaintiffs also challenge the WOTUS Rule’s case-by-case
category of waters under the CWA.
violates

Justice

Kennedy’s

The States argue that the category

opinion

in

Rapanos

and

would

jurisdiction over isolated ponds like those in SWANCC.

extend

Intervenor

Defendants argue that the category falls squarely in line with Justice
Kennedy’s significant-nexus test.
The case-by-case category includes as waters of the United States
“all waters located within the 100-year floodplain” of a primary water
and “all waters located within 4,000 feet of the high tide line or
[OHWM]” of a primary water, impoundment, or tributary when those waters
are determined, on a case-by-case basis, to have a significant nexus to
a primary water.

33 C.F.R. § 328.3(a)(8).8

The WOTUS Rule defines

8

The WOTUS Rule also uses a case-by-case category to identify specific types
of waters as waters of the United States in 33 C.F.R. § 328.3 (a)(7).
These
include prairie potholes, Carolina bays and Delmarva bays, pocosins, western
vernal pools, and Texas coastal prairie wetlands. These categories can be found
to be similarly situated and combined for the purposes of the significant nexus
analysis in a watershed that drains into a primary water. Id. However, the
State Plaintiffs focus their challenge on § 328.3 (a)(8).

52

“significant nexus” to mean “that a water, including wetlands, either
alone or in combination with other similarly situated waters in the
region, significantly affects the chemical, physical, or biological
integrity” of a primary water.

Id. § (c)(5).

The Rule also states that

“[f]or an effect to be significant, it must be more than speculative or
insubstantial.”

Id.

The Rule lists nine functions to be considered in

determining whether a water has a significant nexus to a primary water:
(i) Sediment trapping, (ii) Nutrient recycling, (iii)
Pollutant trapping, transformation, filtering, and transport,
(iv) Retention and attenuation of flood waters, (v) Runoff
storage, (vi) Contribution of flow, (vii) Export of organic
matter, (viii) Export of food resources, and (ix) Provision
of life cycle dependent aquatic habitat (such as foraging,
feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a water identified in paragraphs
(a)(1) through (3) of this section.
Id. § (c)(5)(i)-(ix).
As an initial matter, the case-by-case category’s relation to
tributaries for the 4,000-foot limit and interstate waters as a type of
primary water is unlawful.

Because the Court found the definitions of

interstate waters and tributaries to be overbroad under the CWA, by
extension,

the

case-by-case

category

basing

waters

off

of

those

definitions would also extend federal jurisdiction beyond the limits
allowed under the CWA.

But, based on Justice Kennedy’s opinion in

Rapanos, this seems to be the only error in the case-by-case category
with respect to the CWA.
Besides its connection to interstate waters and tributaries, the
case-by-case category specifically tracks the language and reasoning of
Justice Kennedy’s opinion in Rapanos.

The Rule uses Justice Kennedy’s

test by requiring waters in that category to have a significant effect
53

on the chemical, physical, or biological integrity of a primary water.9
The Rule makes these findings on a case-by-case basis like Justice
Kennedy suggested for adjacent waters that were otherwise too remote to
be categorically included in relation to non-navigable tributaries.
Then, the Rule further limits these significant-nexus findings to waters
within the 100-year floodplain of a primary water or 4,000 feet of a
primary water, impoundment, or tributary.
This case-by-case category of waters is different from the others
discussed

previously

because

it

does

not

categorically

jurisdiction over all waters within a certain definition.

assert

Rather, the

rule uses Justice Kennedy’s significant-nexus test on an individual,
case-by-case basis, and adds outer limits to when that test can be
applied because of effects on primary waters.

The 100-year floodplain

is insufficient under the adjacency category to show a significant nexus
in the majority of cases because the Rule seeks to include all waters
within that floodplain within its jurisdiction without showing that the
majority of those waters have a significant nexus to primary waters.
The case-by-case category, on the other hand, merely uses that floodplain
as

a

geographic

limit

as

to

where

waters

can

be

determined

to

individually have a significant nexus to primary waters; it does not
encompass all waters within that limit by default.

The same reasoning

applies to the 4,000-foot limit. While quite broad—close to a mile long—
this specific distance places an outer limit to how far the Agencies can
find a significant nexus; it does not allow the Agencies to invoke

9

Notably, the case-by-case category’s significant-nexus test is limited to
waters that have a significant effect on the chemical, physical, or biological
integrity of a primary water, not of an impoundment or tributary.

54

jurisdiction over all waters within that 4,000-foot zone.

This case-

by-case approach is consistent with Justice Kennedy’s opinion.
The

State

Plaintiffs

argue

that

the

Rule’s

definition

of

significant nexus violates Justice Kennedy’s test in Rapanos because
Justice

Kennedy

said

a

significant

nexus

exists

where

wetlands

“significantly affect the chemical, physical, and biological integrity”
of navigable waters, 547 U.S. at 780 (Kennedy, J., concurring) (emphasis
added), while the Rule’s definition of significant nexus says “the
chemical, physical, or biological integrity,” 33 C.F.R. § 328.3(c)(5)
(emphasis added).

The States’ argument takes Justice Kennedy’s words

out of context and would lead to results inconsistent with the text and
purpose of the CWA.

Justice Kennedy’s test was quoting the language of

the CWA which states that Congress enacted the statute to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s
waters.”

Rapanos, 547 U.S. at 779-80 (Kennedy, J., concurring) (quoting

33 U.S.C. § 1251(a)).

He was not saying that all three conditions must

be present for a significant nexus to exist.

Such a reading would lead

to absurd results inconsistent with the CWA like not allowing federal
jurisdiction

where

a

water

significantly

affects

the

chemical

and

biological integrity of a primary water used for a town’s drinking water
but does not change the physical makeup of the water.

Justice Kennedy

rooted his test in the purposes of the CWA, and the WOTUS Rule’s use of
“or” follows the purpose of that statute and Justice Kennedy’s test.
Nevertheless, the State Plaintiffs also argue that the factors used
by

the

WOTUS

Rule

to

determine

a

significant

nexus

will

lead

to

jurisdiction over remote waters like the isolated ponds in SWANCC that
55

were a habitat of migratory birds.

The Court disagrees.10

First, the

Agencies assertion of jurisdiction over the ponds in SWANCC was based
on the fact that the ponds were used by birds that crossed state lines,
not a significant nexus to a primary water’s biological integrity.
SWANCC, 531 U.S. at 164.

See

Second, the WOTUS Rule states that “[n]on-

aquatic species or species such as non-resident migratory birds do not
demonstrate a life cycle dependency on the identified aquatic resources
and are not evidence of biological connectivity for purposes of this
rule.”

80 Fed. Reg. at 37,094.

Third, just because the Agencies could

not assert jurisdiction over the isolated ponds in SWANCC based on
migratory birds does not mean that the Agencies could not find under the
new WOTUS Rule that similar ponds have a significant nexus to primary
waters.

It is true that the Agencies could apply the significant nexus

factors in a way that is so attenuated, remote, or insubstantial that a
court could determine in a specific case that such application violates
Justice

Kennedy’s

significant-nexus

test,11

but

as

written,

the

definition of significant nexus and the functions listed comply with
Justice Kennedy’s opinion.12

Importantly, even if one of the relevant

functions like “sediment trapping” or “nutrient recycling” is present,
that function performed by the water at issue must still significantly

10

However, the Court agrees that the case-by-case category is unlawful as far
as it uses non-navigable interstate waters and the overly broad definition of
tributaries as bases within its definition. See supra sections II.A., II.B.
11 The significant-nexus test is, by definition, a legal test, meaning that the
Agencies are not the final arbiters of determining whether a water has a
significant nexus.
12 Indeed, three of the factors are mentioned as specific examples by Justice
Kennedy in Rapanos.
457 U.S. at 779 (listing “functions such as pollutant
trapping, flood control, and runoff storage” as critical functions wetlands can
perform for other waters); see also 33 C.F.R. § 328.3 (c)(5)(i), (iii), (iv).

56

affect “the chemical, physical, or biological integrity of the nearest
primary water.”

See 33. C.F.R. § 328.3(c)(5).

Therefore, with the

exception of the category’s use of interstate waters and tributaries,
the case-by-case category is otherwise consistent with Justice Kennedy’s
opinion and lawful under the CWA.
E. Substantial Encroachment on a Traditional State Power
Finally, Plaintiffs raise an additional challenge to the WOTUS Rule
under the CWA—namely, that it encroaches on traditional state power.
Plaintiffs argue that in addition to going beyond the authority delegated
under

the

CWA,

the

WOTUS

jurisdictional

reach

is

authorization.

In

Rule
not

SWANCC,

also

violates

supported
the

Court

by

a

the

CWA

clear

explained

that

because

its

congressional
“[w]here

an

administrative interpretation of a statute invokes the outer limits of
Congress’ power, we expect a clear indication that Congress intended
that result.”

531 U.S. at 172; see also United States v. Bass, 404 U.S.

336, 349 (1971) (“[U]nless Congress conveys its purpose clearly, it will
not be deemed to have significantly changed the federal-state balance.”).
This requirement stems from the Court’s “assumption that Congress does
not casually authorize administrative agencies to interpret a statute
to push the limit of congressional authority,” and “[t]his concern is
heightened where the administrative interpretation alters the federalstate framework by permitting federal encroachment upon a traditional
state power.”

SWANCC, 531 U.S. at 173.

While the CWA allows the federal government to regulate certain
waters for the purposes of protecting the chemical, physical, and
biological integrity of the nation’s waters, Congress also included
57

within that statute a provision which states that the policy of Congress
is to “recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution, to plan
the

development

and

use

(including

restoration,

enhancement) of land and water resources.”
Rapanos,

Justice

Scalia,

writing

for

preservation,

and

33 U.S.C. § 1251 (2018).
the

plurality,

stated

In

that

“[r]egulation of land use, as through the issuance of the development
permits [under the CWA] . . ., is a quintessential state and local
power.”

547 U.S. at 738.

Based on this fact, Justice Scalia found

that, in that case, “[t]he extensive federal jurisdiction urged by the
Government would authorize the Corps to function as a de facto regulator
of immense stretches of intrastate land—an authority the agency has shown
its willingness to exercise with the scope of discretion that would befit
a local zoning board.”

Id.

Like the Court stated in SWANCC, Justice

Scalia concluded that in such a situation, “[w]e ordinarily expect a
‘clear

and

manifest’

statement

from

Congress

to

authorize

an

unprecedented intrusion into traditional state authority,” but “[t]he
phrase ‘waters of the United States’ hardly qualifies.”

Id. (citation

omitted).13

13

It is important to note that Justice Kennedy disagrees with this “fallback”
argument by the plurality in Rapanos. However, Justice Kennedy’s disagreement
with this traditional state authority argument centered around his perceived
inconsistencies in the plurality’s limits that it imposed under the CWA of
surface connection and continuous flow and their concerns about encroachment on
state power. See Rapanos, 547 U.S. at 776 (Kennedy, J., concurring). From his
view, the plurality’s argument contradicted the limits it attempted to impose
under the CWA. Id. In other words, Justice Kennedy’s disagreement was based
on what were, in his view, inconsistencies in the plurality’s arguments; it was
not a rule forbidding the consideration of arguments on substantial encroachment
on traditional state power. Therefore, Justice Kennedy’s disagreement on this
point in Rapanos does not foreclose this Court from considering a similar
argument of traditional state authority under the WOTUS Rule or from citing
Justice Scalia’s statements on that point in Rapanos as persuasive authority.

58

If the plurality in Rapanos thought the Agencies’ definition of
waters

of

the

United

States

in

that

case

would

regulate

“immense

stretches of intrastate land,” then they would be even more concerned
about the breadth of the WOTUS Rule’s jurisdiction here.

The WOTUS Rule

concedes that it would result in a 2.84 to 4.65 percent expansion of
jurisdiction when “[c]ompared to a baseline of recent practice.”
Fed. Reg. at 37,101.

80

The Plaintiffs characterize this increase as

underinclusive, but even on its own, an almost two-percent increase in
jurisdiction nationwide is a substantial intrusion into lands and waters
traditionally left to state authority.

During the Motions Hearing on

December 14, 2018, counsel for Intervening Defendants admitted that he
was not in a position to dispute the 2.84 to 4.65 percent increase in
jurisdiction.

Motions Hearing, Dkt. No. 235 at 3:41:08.

In the

Agencies’ notice of proposed rulemaking to repeal the WOTUS Rule, the
Agencies admitted that the WOTUS Rule could allow “the vast majority of
water features in the United Stated” to come within “the jurisdictional
purview of the federal government.”

83 Fed. Reg at 32,229, 32,248

(explaining that “[t]he agencies noted in 2015 ‘that the vast majority
of the nation’s water features are located within 4,000 feet of a covered
tributary, traditional navigable water, interstate water, or territorial
sea’” and concluding that “[t]he agencies’ broadening of certain key
concepts and terms relative to the prior regulatory regime means that
the agencies can potentially review the ‘vast majority’ of water features
in the country under the 2015 Rule, unless those features have been
excluded” (citation omitted)).

Finally, the Agencies now concede in the

proposed rule to rescind the WOTUS Rule that the WOTUS Rule “may have
59

altered

the

balance

of

authorities

between

the

federal

and

State

governments, contrary to the agencies’ statements in promulgating the
2015 Rule in contravention of the CWA section 101(b), 33 U.S.C. 1251(b).”
83 Fed. Reg. at 32228.
What

all

of

this

shows

is

that

contrary

to

the

Intervenor

Defendants’ characterization of the Rule as narrowing the scope of
federal jurisdiction,14 the Rule actually increases that to a significant
degree.

Most importantly, that significant increase in jurisdiction

takes land and water falling traditionally under the states’ authority
and transfers them to federal authority.
In

light

of

this

significant

intrusion

on

traditional

state

authority, the CWA still contains the policy language of recognizing
traditional state power in this area, and Congress has not made any clear
or manifest statement to authorize intrusion into that traditional state
power since Rapanos.

Therefore, like the majority in SWANCC and the

plurality in Rapanos concluded, the WOTUS Rule’s vast expansion of
jurisdiction over waters and land traditionally within the states’
regulatory authority cannot stand absent a clear statement from Congress
in the CWA.

Since no such statement has been made, the WOTUS Rule is

unlawful under the CWA.

14

Intervenor Defendants also argue that “the promulgation of [WOTUS Rule] is a
plain attempt to follow the instruction of the Supreme Court—not encroach on
state law.” Dkt. No. 211 at 22. While that may have been what the Agencies
attempted to do, for the reasons explained above, the WOTUS Rule goes beyond
the limits imposed by Justice Kennedy’s opinion in Rapanos. Thus, this argument
is unavailing since the Agencies in fact did not “draft a rule consistent with
Supreme Court precedent.” Id.

60

III. APA
Plaintiffs

also

challenge

the

WOTUS

Rule

as

promulgated under the procedures required by the APA.

being

unlawfully

The Court finds

that the WOTUS Rule violates the APA in at least two ways: (1) the Final
Rule was not the logical outgrowth of the Proposed Rule and (2) the Rule,
at least in some parts, is arbitrary and capricious.15
A. The Final Rule Was Not the Logical Outgrowth of the
Proposed Rule
Plaintiffs argue that they were denied an opportunity to comment
on several elements that were nowhere to be found in the Proposed Rule
but were essential components of the Final Rule in violation of the APA’s
notice requirement.

In other words, they argue that the Final Rule was

not the logical outgrowth of the Proposed Rule.

Intervenor Defendants

and the Agencies maintain that Plaintiffs were given an opportunity to
comment and that the Final Rule was the logical outgrowth of the Proposed
Rule.

After analyzing the Proposed Rule, comments received on that

Proposed Rule, and the language used in the Final Rule, the Court finds
that the Final Rule was not the logical outgrowth of the Proposed Rule
with respect to the distance limits chosen for adjacent waters, the
distance limits chosen for case-by-case waters, and the lack of a farming
exclusion for tributaries.
Under the APA, a “[g]eneral notice” of proposed rulemaking must
include “either the terms or substance of the proposed rule or a
description of the subjects and issues involved” and give the public an

15

Plaintiffs also raise additional procedural challenges to the WOTUS Rule
under the APA, but because the Court finds the Rule to be in violation of the
APA in these two respects, it need not address these other arguments.

61

opportunity to comment on that proposed rule.

5 U.S.C. § 553(b)(3),

(c).

in

The

purposes

of

notice

requirements

notice-and-comment

rulemaking under the APA are “(1) to ensure that agency regulations are
tested via exposure to diverse public comment, (2) to ensure fairness
to affected parties, and (3) to give affected parties an opportunity to
develop evidence in the record to support their objections to the rule
and thereby enhance the quality of judicial review.”

Miami-Dade Cty.

v. E.P.A., 529 F.3d 1049, 1058 (11th Cir. 2008) (quoting Envtl. Integrity
Project v. E.P.A., 425 F.3d 992, 996 (D.C. Cir. 2005)).

An agency

satisfies the notice requirement, “and need not conduct a further round
of public comment, as long as its Final Rule is a ‘logical outgrowth’
of the rule it originally proposed.” Id. at 1059 (quotation and citation
omitted).
‘should

“A rule is deemed a logical outgrowth if interested parties

have

anticipated’

that

the

change

was

possible,

and

thus

reasonably should have filed their comments on the subject during the
notice-and-comment period.”

Id. (quotation and citation omitted).

However, “[t]he logical outgrowth doctrine does not extend to a
final rule that is a brand new rule, since [s]omething is not a logical
outgrowth of nothing, nor does it apply where interested parties would
have had to divine [the Agency’s] unspoken thoughts, because the final
rule was surprisingly distant from the proposed rule.”

Int’l Union,

United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250,
1259–60 (D.C. Cir. 2005) (quotations and citations omitted) (alteration
in original).

In other words, “[n]otice is inadequate if the interested

parties could not reasonably have anticipated the final rulemaking from
the draft rule.”

Miami-Dade Cty., 529 F.3d at 1059 (quotation and
62

citation omitted).
of

alternatives

Moreover, “[a]gency notice must describe the range
being

considered

with

reasonable

specificity.

Otherwise, interested parties will not know what to comment on, and
notice will not lead to better-informed agency decisionmaking.”

Small

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

“Finally, although they may not provide the only basis

upon which an agency claims to have satisfied the notice requirement,
comments may be adduced as evidence of the adequacy of notice.”

Miami-

Dade Cty., 529 F.3d at 1059.
1. Distance Limits for Adjacent Waters
Plaintiffs first argue that the 100-foot, 1,500-foot, and 100-year
floodplain limits for the adjacent waters definition in the Final Rule
are not the logical outgrowth of the Proposed Rule.

In the Proposed

Rule, neighboring waters, under the larger definitional category of
adjacent waters, included “waters located within the riparian area or
floodplain of a water identified in paragraphs (a)(1) through (5) of
this section, or waters with a shallow subsurface hydrologic connection
or confined surface hydrologic connection to such a jurisdictional
water.”

79 Fed. Reg. at 22,263.

The Final Rule, however, defined

neighboring waters based on specific distance limitations—(1) waters
within 100 feet of a primary water, impoundment, or tributary; (2) waters
within

a

100-year

floodplain

and

1,500

feet

of

a

primary

water,

impoundment or tributary; and (3) waters within 1,500 feet of the hightide line of primary water, 33 C.F.R. § 328.3(c)(2)—rather than the
functional factors of the riparian area or floodplain as described in
the Proposed Rule.
63

At first blush, the Final Rule’s change in the definition of
neighboring waters to a purely distance-based scheme and the selection
of the specific distances seems to be a signficant departure from the
Proposed Rule, but the question is whether interested parties should
have anticipated that change.

The Court finds that they had no reason

to anticipate such a change and thus no reason to comment with welldeveloped

and

scientifically

geographic distance limits.

supported

suggestions

for

specific

The Proposed Rule does not request comments

on whether to define neighboring waters based solely on geographic
distance, let alone mention a range of distances being considered for
such a scheme.

As aptly explained by the District Court of the District

of North Dakota considering this exact issue regarding the WOTUS Rule
in its preliminary injunction ruling, “[w]hen the Agencies published the
final

rule,

they

materially

altered

the

Rule

by

substituting

the

ecological and hydrological concepts with geographical distances that
are different in degree and kind and wholly removed from the original
concepts announced in the proposed rule.”

North Dakota, 127 F. Supp.

3d at 1058. In other words, interested parties could not have reasonably
anticipated

this

definitional

overhaul

of

an

“ecologically

and

hydrologically based rule to one that finds itself based in geographic
distance.”

Id.

Recently reaching that same conclusion, the District

Court for the Southern District of Texas explained that this change was
“significant” because it altered “the jurisdictional scope of the Act”
and “[a]s a result, the Final Rule was deprived of the benefit of comment
‘by those most interested and perhaps best informed on the subject of

64

the rulemaking at hand.’”

Texas, 2019 WL 2272464, at *5 (quoting

Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 620 (5th Cir. 1994)).
Defendants

argue

that

language

in

the

Proposed

Rule

did

put

interested persons on notice of a possible distance-based approach. They
point to the phrases in the request for comments of “specific geographic
limits” and “distance limitations.”

However, Defendants take these

phrases out of context, and when read in context, they would not put
interested persons on notice of the need to comment about specific limits
for a geographically based neighboring waters scheme.

In the section

of the Proposed Rule discussing adjacent waters, the Rule requests
“comment on whether there are other reasonable options for providing
clarity for jurisdiction over waters with” connections through “confined
surface or shallow subsurface hydrology.”

79 Fed. Reg. at 22,208.

Regarding this request, the Rule goes on to say that
Options could include asserting jurisdiction over all waters
connected through a shallow subsurface hydrologic connection
or confined surface hydrologic connection regardless of
distance; asserting jurisdiction over adjacent waters only if
they are located in the floodplain or riparian zone of a
jurisdictional water; considering only confined surface
connections but not shallow subsurface connections for
purposes of determining adjacency; or establishing specific
geographic limits for using shallow subsurface or confined
surface hydrological connections as a basis for determining
adjacency, including, for example, distance limitations based
on ratios compared to the bank-to-bank width of the water to
which the water is adjacent.
Id. (emphasis added).

When read in context, these phrases were listed

as one of four options for providing clarity for jurisdiction over a
specific type of water connection, and the option was confined to limits
for

using

“shallow

subsurface

or

confined

surface

hydrological

connections” as the basis for adjacency, not as the sole basis for all
65

adjacent waters under the Rule.

These two phrases do nothing to put

interested parties on notice of a total shift in the adjacency definition
scheme or of the need to propose specific distances or floodplain
intervals for the Final Rule.
The Agencies also argue that the Final Rule was a logical outgrowth
because it requested comment on floodplain intervals and because it used
the terms “lateral reach” and “reasonable proximity.” See id. at 22,20708.

First, merely requesting comment “on whether the rule text should

provide

greater

specificity

with

regard

to

how

the

agencies

will

determine if a water is located in the floodplain of a jurisdictional
water” is not the same as asking what, if any, limits should be placed
on the floodplain or what type of floodplain interval should be used.
Id. at 22,209.

The prior sentence says that the Agencies will use their

“professional judgment” to determine which flood interval to use, and
in parentheses it says “for example, 10 to 20 year flood interval zone.”
Id.

To the extent this example was supposed to provide notice to

interested parties to comment with specific floodplain intervals, it is
at best misleading since the chosen interval in the Final Rule—100-year
floodplain—was much larger. Second, the statement that “[a]djacent . . .
has

always

included

an

element

of

reasonable

proximity”

based

on

Riverside Bayview only shows that proximity is a factor the Agencies
generally consider for adjacent waters, not that the Agencies were
considering it as the sole, defining factor.
the

statement

that

“[t]o

bring

greater

Id. at 22,207.

clarity

to

the

Finally,

meaning

of

‘neighboring,’ the proposed rule adds scientifically-based definitions
for the terms ‘riparian area’ and ‘floodplain’ to define the lateral
66

reach of the term ‘neighboring’” also does nothing to put interested
parties on notice that basis for the “lateral reach” of the term
neighboring could materially shift from riparian areas and floodplains
to specific distance limits.

Id.

Defendants also argue that comments from interested parties about
distance limits demonstrate a logical outgrowth.

Although the Eleventh

Circuit has recognized that comments may be evidence of notice, the
handful of distance-related comments in this case fail to demonstrate
that interested persons were on notice of the Final Rule’s geographicbased adjacency definition.16

First, the fact that a few comments

generally asserted that a hydrologic connection rather than distance
should be used or that there should be no distance limitation of the
neighboring definition is unavailing as such comments do not show notice
of an entirely distance-based scheme.

Second, the fact that a few

comments suggested specific limits also does not show that interested
parties had notice of the distance-based scheme.

In fact, the wide

variety of suggestions in those comments—from 50 feet or a 5-year
floodplain, Dkt. No. 215-3, Part 2 at 8, 34, to half a mile or a 100year floodplain, Dkt. No. 215-3, Part 2 at 8, 75-76—show the lack of
clear notice from the Proposed Rule.

All-in-all, these few comments out

of over a million strike the Court as “sparse and ambiguous at best,”

16

Moreover, comments cannot “provide the only basis upon which an agency claims
to have satisfied the notice requirement.” Miami-Dade Cty., 529 F.3d at 1059;
see also Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246, 1268 (D.C. Cir. 1994)
(“While we have noted that insightful comments may be reflective of notice and
may be adduced as evidence of its adequacy, we have rejected bootstrap arguments
predicating notice on public comments alone. Ultimately, notice is the agency’s
duty because comments by members of the public would not in themselves
constitute adequate notice. Under the standards of the APA, notice necessarily
must come—if at all—from the Agency.” (quotations and citations omitted)).

67

and

while

some

happen

to

address

specific

limits,

“none

squarely

anticipates” the dramatic shift in the neighboring waters definition.
Shell Oil Co. v. E.P.A., 950 F.2d 741, 751 (D.C. Cir. 1991).

Had the

Proposed Rule given adequate notice, the Agencies could have expected
to receive numerous comments with data, graphs, etc. articulating why
certain

distance-based

limits

should

be

chosen

over

others,

but

interested parties had no occasion to do that in this case based on the
language of the Proposed Rule.
Finally, Intervenor Plaintiffs argue that the Court is bound by
the Eleventh Circuit’s opinion in Alabama Power Co. v. O.S.H.A., 89 F.3d
740 (11th Cir. 1996), which they argue “directly addresses the issue at
hand.”

However, Alabama Power is distinguishable from the present case.

Alabama Power involved an Occupational Safety and Health Administration
(“OSHA”) regulation for clothing worn by electric utility workers through
notice-and-comment rulemaking. Id. at 742. OSHA issued a final standard
that included an apparel provision that required employers to ensure
that employees who were exposed to flames or electrical arcs not wear
flammable clothing that could increase the extent of injury to the
employee.

Id. at 743.

In the preamble to that section, OSHA noted that

“[n]atural fabrics, such as 100 percent cotton or wool, and synthetic
materials that are flame resistant or flame retardant are acceptable
under the final rule.”

Id. (citation omitted).

Then, “in response to

. . . questions concerning the preamble’s clarity with regard to those
natural fabrics” deemed acceptable, OSHA published a “Correction of the
Preamble.”

Id.

The corrected preamble stated that

Natural fabrics, such as 100 percent cotton or wool, are
acceptable under the final rule, provided they are of such
68

weight and construction as not to ignite under the conditions
to which an employee might be exposed. (For example, cotton
fabrics of 11 ounces or [more] generally will not ignite when
exposed to an arc the energy of which is approximated by a
3800–ampere, 12–inch arc lasting for 10 cycles . . .).
Id.
The plaintiffs in Alabama Power challenged the corrected preamble
arguing that they were denied an adequate opportunity to comment on it
because it was a modification that specified only certain weights of
natural fabrics it deemed acceptable.

Id. at 744.

The Eleventh Circuit

rejected this argument holding that the correction “merely clarified
that under certain conditions, heavyweight natural fabrics are necessary
in order to fully protect those workers exposed to electric arcs.”

Id.

Here, Defendants argue that OSHA’s addition of the specific elevenounce cotton fabric “requirement” in the corrected preamble is like the
addition of the specific distance limits for adjacent waters in the Final
WOTUS Rule and, because the Eleventh Circuit found that final standard
including the corrected preamble to be a logical outgrowth of the
proposed standard, the Court must also find the Final Rule in this case
to be the logical outgrowth.

However, the eleven-ounce fabric statement

in Alabama Power is wholly different from the distance-based scheme in
this case.

OSHA listed the eleven-ounce fabric as an example of a fabric

weight that would generally not ignite.

Moreover, the Eleventh Circuit

recognized that “[t]he employer” still had “discretion to determine
whether or not 100 percent cotton or wool clothing is acceptable under
the conditions to which a worker could be exposed.”

Id. at 745.

As

such, the Court held that “[s]uch statements make it clear that natural
fabrics are in no way prohibited altogether, but rather, that certain
69

conditions to which a worker may be exposed call for either a heavyweight
natural fabric, or a lightweight flame retardant natural fabric.”

Id.

Here, the Final WOTUS Rule did not merely mention an example of distance
limits where waters would likely or could have a significant nexus to
navigable waters; rather, it created an entire distance-based scheme
without giving any indication of a range of alternatives to interested
parties in the proposed rule. Alabama Power does not change this Court’s
conclusion in this case.
2. Distance Limits for Case-by-case Waters
For many of the same reasons that the distance limitations for the
adjacent waters in the Final Rule were not the logical outgrowth of the
Proposed Rule, the 4,000-foot and 100-year floodplain limits on the caseby-case category were also not the logical outgrowth of the Proposed
Rule.

The Proposed Rule had no limit on the “other waters, including

wetlands,” that could be determined to have a significant nexus on a
case-by-case basis.

79 Fed. Reg. at 22,263.

The Final Rule, following

the distance-limit scheme of the adjacent category, included a 100-year
floodplain limit for primary waters and a 4,000-foot limit for primary
waters, impoundments, and tributaries for the case-by-case category.
Fed. Reg. at 37,105.

80

The Agencies argue that interested parties had

notice of specific geographic limits on the case-by-case category through
the Proposed Rule’s use of the words “sufficiently close,” but a closer
examination of the Rule shows that this phrase was used to describe the
definition of similarly situated waters under the rule, not to request
comment on specific limits to the case-by-case category.
Reg. at 22,213, 22,217, 22,264.

This phrase and the statement that the
70

See 79 Fed.

Agencies would consider location as one of many factors in determining
“other waters” under the case-by-case category are not enough to show a
“germ” of distance limitations sufficient to provide public notice.

See

79 Fed. Reg. at 22,214; Dkt. No. 219 at 26 (citing NRDC v. Thomas, 838
F.2d 1224, 1242 (D.C. Cir. 1988)).

Finally, the handful of comments

inquiring as to what distance would be considered sufficiently close in
the Agencies’ analysis and those discussing whether or not or to what
extent distance should or should not be a factor in the case-by-case
significant-nexus analysis do not show any specific suggestions of a
flood-plain interval or a specific distance cut-off for where the caseby-case category ends.
Intervenor

Defendants

also

argue

that

even

if

Plaintiffs

are

correct that the Proposed Rule failed to give sufficient notice for the
limits

to

the

case-by-case

category,

Plaintiffs

cannot

show

any

redressable injury because the changes limited the scope of the category
thereby limiting the scope of federal jurisdiction in Plaintiffs’ favor.
“To show prejudicial error, a petitioner must indicate with reasonable
specificity, the aspect of the rule to which it objects and how it might
have responded if given the opportunity.

At base, the petitioner must

demonstrate that on remand, [it] can mount a credible challenge . . .
and [was] thus prejudiced by the absence of an opportunity to do so
before the agency.”

Miami-Dade Cty., 529 F.3d at 1061 (quotations and

citations omitted) (alterations in original).
Plaintiffs have sufficiently demonstrated a harm here.

Despite

Plaintiffs’ preference for a case-by-case category with a distance and
flood-interval cap—as opposed to no limit at all—that preference does
71

not take away from the harm Plaintiffs have experienced.

As explained

by the State Plaintiffs, the Proposed Rule failed to provide notice that
“the Agencies were considering a shift to a fundamentally different
regime for defining” the waters in the adjacency and case-by-case
categories.

Dkt. No. 239 at 6.

As a result, the interested parties

could not offer “the kind of rigorous or targeted analysis of the
specific distance-based limits set out in the final rule—whether via
maps, surveys, or other kinds of data—that a proposal of specific
distances or a potential range of distances would have prompted.”

Id.

at 2. The State Plaintiffs explained that this sort of rigorous research
was not possible with interested parties’ limited resources and on
“nothing more than a hunch that the Agencies might adopt a certain kind
of or set of limits.”

Id.

In other words, had the State Plaintiffs and

other interested parties been given the opportunity, they would have
submitted comments with detailed analysis supported by “maps, surveys,
or other kinds of data” arguing for appropriate geographic limits of the
adjacent and case-by-case water categories.

Id.

Specifically for case-

by-case waters, interested parties could have suggested and explained
why the distance limit should be 2,000 feet, 1,000 feet, or even 500
feet or why the limit should not have been greater than 4,000 feet if
such a possibility was on the table.
the 100-year floodplain interval.

The same goes for suggestions about

This ability to know what is at issue

in a proposed regulation and provide substantive comments on those issues
is the entire purpose behind giving notice.

The Agencies’ actions in

this case—which denied interested parties a chance at submitting detailed

72

comments about the appropriate limits for a distance-based definitional
scheme—failed to adhere to that purpose.
3. Farming Exclusion for Adjacent Waters
The last portion of the Proposed Rule that the Plaintiffs challenge
is that the Final Rule, without notice to interested persons, included
a farming exemption for adjacent waters but not tributaries.

The

Proposed Rule had no exclusion for land used for farming whatsoever; it
mentioned only that the Rule did not change certain farming-based
exemptions listed in the CWA.

See 79 Fed. Reg. at 22,189, 22,263.

The

Final Rule included an exception to adjacent waters that stated “[w]aters
being used for established normal farming, ranching, and silviculture
activities . . . are not adjacent.”

80 Fed. Reg. at 37,105.

The Final

Rule explained that such waters would be subject to case-by-case review.
Id. at 37,080.

The Final Rule explained that the Agencies created this

exemption to reflect the CWA’s exemption of certain farming activities
from Section 404’s permitting requirements, “[r]ecognizing the vital
role of farmers in providing the nation with food, fiber, and fuel.”
Id.

Lastly,

in

explaining

the

farming

exemption,

the

Final

Rule

clarifies that “[i]t is important to recognize that ‘tributaries,’
including those ditches that meet the tributary definition, are not
‘adjacent’ waters and are jurisdictional by rule.”

Id.

State Plaintiffs argue that the lack of notice as to a contemplated
farmland exemption deprived the States of the opportunity to propose the
exclusion of farmland from the tributaries category as well, and as a
result, vast amounts of “farm acreage . . . [would be] swept in to
federal jurisdiction.”

Dkt. No. 222 at 22.
73

Indeed, the Court finds

that not proposing any farmland-based exemption to the definitionalscheme in the Proposed Rule and then creating such an exemption in the
Final Rule for one subpart without allowing further comment is not a
logical outgrowth.

Passing mentions to the CWA’s farming exemptions for

permitting requirements unrelated to the definitional scheme for waters
of the United States does not count toward providing notice.
However,

Defendants

harmless error.

again

argue

that

this

notice

defect

was

The Agencies point to comments made by other interested

parties arguing that these comments show the lack of prejudicial harm
“because all that is necessary in such a situation is that the agency
had an opportunity to consider the relevant views.”

Dkt. No. 219 at 28

(quoting Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C.
Cir. 2014)).

Specifically, the Agencies point to a handful of comments

that discuss problems facing farmers generally under the Rule, see dkt.
no. 215-4, Ex. 2, Pt. 3, at 126, or discuss the CWA’s farmland-permitting
exemptions that are unchanged in the Rule, see id. at 134, 170, 190.
They also point to one response to one comment assuring that the
exclusions in paragraph (b) of the definition of tributary will alleviate
most of the comment’s concerns regarding farmland.
30-31.

Dkt. No. 215-6 at

Yet, none of these comments or responses show that the Agencies

received or considered a farmland exemption to tributaries like the
exemption for adjacent waters.

Moreover, considering that the Agencies

based the exemption for adjacent waters on the importance of farmers to
the economy, had the State Plaintiffs and other interested parties been
aware that the Agencies were considering such exemptions, they could
have submitted comments applying those same policy concerns to farmland
74

covered under the tributaries definition.

Like the other two distance-

limit changes, the partial farmland exemption was not a logical outgrowth
of the Proposed Rule and it was not harmless error.17
B. Portions of the WOTUS Rule are Also Arbitrary and
Capricious
Plaintiffs also argue that in addition to violating the APA’s
notice requirement, the WOTUS Rule is arbitrary and capricious under
section 706(2)(A) of the APA.

Specifically, Plaintiffs argue that the

Agencies arbitrarily selected the distance limitations for the adjacent
and case-by-case waters definitions and that the Agencies failed to treat
similar cases in a similar manner by applying the farming exclusion to
the adjacent waters definition but not tributaries.

Defendants argue

that these decisions in the WOTUS Rule are grounded in science and their
expertise.

After reviewing the record, the Court finds that even giving

great deference to the Agencies, some of the WOTUS Rule’s definitions
are arbitrary and capricious.
The APA states that the reviewing court shall “hold unlawful and
set aside agency action, findings, and conclusions found to be . . .

17

In disputing the Plaintiffs’ argument that they lacked the opportunity to
comment on the WOTUS Rule, the Agencies mention that “[s]ince 2015, the
challengers and other interested parties have had further opportunity to—and
did—present
their
objections
through
the
Agencies’
reconsideration
proceedings,” and that in the Agencies new rulemaking efforts to repeal and
rescind the WOTUS Rule, “the challengers now have the opportunity, in that
rulemaking, to comment on the final regulatory text and all the support for the
2015 Rule.” Dkt. No. 219 at 18-19. However, this Court is evaluating the WOTUS
Rule as promulgated in 2015. While statements made by the Agencies in their
new rulemaking efforts or other facts from that post-2015 rulemaking may be
instructive to the Court’s consideration of this case in some respects, as far
as the Agencies’ fulfilment of the notice requirement for the 2015 Rule, the
question is whether interested persons had an opportunity to comment on that
rule at that time prior to the final promulgation of that rule. For the reasons
explained above, the Court finds that they did not have that opportunity.

75

arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”

5 U.S.C. § 706(2) (2018).

“The arbitrary and

capricious standard is a highly deferential one, and [the Court] cannot
substitute [its] judgment for that of the agency as long as the agency’s
conclusions are rational and reasonably explained.”

Black Warrior

Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 833 F.3d 1274, 1285
(11th Cir. 2016).

The Court’s “inquiry is limited by law to whether the

agency’s decision was based on a consideration of the relevant factors
and, ultimately, whether it made a clear error of judgment.”

Id.

To

put it another way, the Court may find a rule arbitrary and capricious
where “the agency has relied on factors which Congress has not intended
it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to
the evidence before the agency or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.”
Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th
Cir. 2007) (citation omitted). While the Court should “uphold a decision
of less than ideal clarity if the agency’s path may reasonably be
discerned . . . [w]e may not supply a reasoned basis for the agency’s
action that the agency itself has not given.” Black Warrior Riverkeeper,
833 F.3d at 1285 (quotations and citations omitted).

“This inquiry is

‘searching and careful, [but] the ultimate standard of review is a narrow
one.’”

Conservation All. of St. Lucie Cty., Inc. v. U.S. Dep’t of

Transp., 847 F.3d 1309, 1320 (11th Cir. 2017) (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

76

First, the WOTUS Rule’s inclusion of the farming exemption for
adjacent waters but not tributaries is arbitrary and capricious.

“An

agency must treat similar cases in a similar manner unless it can provide
a legitimate reason for failing to do so.”

Indep. Petroleum Ass’n of

Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996); see also Black
Warrior Riverkeeper, 833 F.3d at 1289 (“A long line of precedent has
established that an agency action is considered arbitrary when the agency
has

offered

insufficient

reasons

differently.” (citation omitted)).

for

treating

similar

cases

As explained above, the WOTUS Rule

states that the Agencies included the farming exemption for adjacent
waters to reflect the CWA’s permitting requirement framework, which
recognizes “the vital role of farmers in providing the nation with food,
fiber, and fuel” by exempting from permitting requirements activities
like

“seeding,

harvesting,

cultivating,

planting,

conservation practices, and other activities.”

soil

and

water

80 Fed. Reg. at 37080.

This exemption and its purpose are reasonable, and the Agencies could
have also explained why they applied this exemption only to the adjacent
waters category. The problem is that they did not. They merely emphasize
that this exemption does not apply to tributaries without explaining
why.

See

id.

(“It

is

important

to

recognize

that

‘tributaries,’

including those ditches that meet the tributary definition, are not
‘adjacent’

waters

and

are

jurisdictional

by

rule.”).

The

policy

justifications for excluding farming activities apply equally to the
tributaries category, and the definition of tributaries in the rule is
likely to cover significant areas of farmland.

The Agencies might have

had a valid and reasonable basis for treating these two definitions
77

differently with regard to the farming exemption, but in addition to not
notifying the public of the possible exemption, they also did not give
any reasons for applying it to one and not the other.

Cf. Black Warrior

Riverkeeper, 833 F.3d at 1289-90 (finding that the Corps provided a
“reasonable basis” for why certain limits applied to one provision of a
regulation but not another).
Second, the WOTUS Rule’s use of the 100-year floodplain based on
FEMA flood maps to define adjacent and case-by-case waters is arbitrary
and capricious.

The WOTUS Rule explains that the Agencies selected a

100-year floodplain interval based, in part, on the fact that FEMA and
NRCS have “generally mapped large portions of the United States, and
these maps are publicly available, well-known and well-understood.”
Fed. Reg. at 37,083.

80

Intervenor Defendants explain that this interval

was also chosen in part for “clarity” reasons, and they argue that
defining adjacent waters along the same lines as boundaries for federally
subsidized flood insurance “comports with the strong federal interest
in minimizing flood insurance taxpayer subsidies.”

Dkt. No. 224 at 13.

While the WOTUS Rule provides reasons for using floodplains generally
to define jurisdiction, it does not provide any other basis for choosing
a 100-year interval as opposed to a different interval (such as a 50year or 200-year floodplain).
Basing the 100-year floodplain choice principally on the FEMA flood
maps is problematic for two reasons. First, the WOTUS Rule itself admits
that while it will determine such floodplain limits using FEMA maps,
those maps have significant problems.

The Rule explains that much of

the United States has not been mapped by FEMA and that some maps are out
78

of date, which means that they are no longer accurate.
37,081.

The Rule states that

80 Fed. Reg. at

if such maps are determined to

be

inaccurate, the Agencies will use other maps, surveys, data, modeling,
or historical evidence to determine the 100-year floodplain.

Id.

But

the point remains that the Agencies’ justification for the 100-year
floodplain

interval

was

based

inaccurate flood-map scheme.

on

an

incomplete

and

in

some

cases

Second, while practicality, clarity, and

public availability are valid factors to consider in selecting a limit
for a regulation generally, they are insufficient in establishing a
baseline definition of waters of the United States under the CWA.
these

factors

may

be

relevant

under

the

arbitrary

and

While

capricious

standard, the WOTUS Rule entirely failed to consider other more important
factors—namely whether the 100-year floodplain is a proper limit for
encompassing waters that have a significant nexus to primary waters.

In

other words, the Agencies failed to give reasons for why a 100-year
floodplain interval was the proper limit with regard to connection to
downstream waters and significant effects on those waters based on
scientific findings and evidence compared to other possible intervals.
Third, and finally, the 1,500-foot limit for adjacent waters is
arbitrary and capricious because the Agencies did not give reasons beyond
mere conclusory statements for why this limit was selected. The Agencies
stated that they determined waters within this 1,500-foot limit had a
significant nexus to downstream navigable waters and established it as
a boundary “[b]ased on a review of the scientific literature, the
agencies’ technical expertise and experience, and the implementation
value of drawing clear lines.”

Id. at 37,085.
79

In other words, this

limit was chosen as a “practical rule that draws reasonable boundaries.”
Id.

While practicality is a valid factor, the Agencies failed to give

specific reasons grounded in science and the significant-nexus analysis
under the CWA for why this limit was chosen as opposed to any other
distance.
limits.

This dearth of reason-giving is distinguishable from other

For example, to justify the 100-foot limit for adjacent waters,

the WOTUS Rule explained that “many studies indicate that the primary
water quality and habitat benefits will generally occur within a several
hundred foot zone of a water” and that “some studies also indicate that
fish, amphibians . . . reptiles . . . and small mammals . . . will use
at least a 100 foot zone for foraging, breeding, nesting, and other life
cycle needs.”

Id. at 37085.

For the 4,000-foot limit on case-by-case

waters, the Rule states that “[t]he agencies’ experience has shown that
the vast majority of waters where a significant nexus has been found,
and which are therefore important to protect to achieve the goals of the
Act, are located within the 4,000 foot boundary.”
limit has no such justification or reason-giving.

Id.

The 1,500-foot

Therefore, the WOTUS

Rule is arbitrary and capricious with respect to at least these three
parts of the definition of waters of the United States.
IV.

Constitutional Claims

Because the Court finds that the WOTUS Rule is unlawful under both
the CWA and the APA, it need not reach the questions of whether the Rule
also violates the Commerce Clause or the Tenth Amendment or whether the
Rule is unconstitutionally vague.

United States v. Smith, No. 17-12412,

2018 WL 6434386, at *1 n.1 (11th Cir. Dec. 7, 2018) (“The Court will not
pass upon a constitutional question although properly presented by the
80

record, if there is also present some other ground upon which the case
may be disposed of.” (quoting Ashwander v. Tennessee Valley Auth., 297
U.S. 288, 347, (1936))).
CONCLUSION
As

explained

by

Chief

Justice

Roberts

in

his

concurrence

in

Rapanos, “[g]iven the broad, somewhat ambiguous, but nonetheless clearly
limiting terms Congress employed in the Clean Water Act, the Corps and
the EPA would have enjoyed plenty of room to operate in developing some
notion of an outer bound to the reach of their authority.”
758 (C.J. Roberts, concurring).

547 U.S. at

However, in developing such rules to

the reach of their authority, the Agencies must adhere to the plain
language of the CWA and Supreme Court precedent interpreting that
language.

Moreover, the Agencies must also adhere to the procedural

requirements imposed by the APA to promulgate a lawful rule.
Agencies failed in both of these respects.

Here, the

The WOTUS Rule’s definition

of “waters of the United States” fails to comply with Justice Kennedy’s
significant-nexus test defining the reach of the Agencies’ authority
under

the

CWA,

and

it

substantially

interferes

with

an

area

of

traditional state authority without a clear indication from Congress
allowing such interference in the CWA.

Moreover, the Agencies failed

to promulgate a final rule that was the logical outgrowth of the proposed
rule, and portions of the Final Rule were promulgated arbitrarily and
capriciously.
Congress

has

delegated

the

important

role

of

protecting

the

nation’s waters to the Agencies, but in fulfilling that role, the
Agencies must comply with the law.
81

Here, they have failed to do just

that.

However, having concluded that the Agencies violated the law in

promulgating the WOTUS Rule, the Court is tasked with ordering the
appropriate remedy under the circumstances of this case.

While the

normal remedy under the APA is vacatur, it is not the only remedy
available.

Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of

Engineers, 781 F.3d 1271, 1290 (11th Cir. 2015) (“While we do not dispute
that ‘vacatur . . . is the ordinary APA remedy, neither can we conclude
that it is the only one.”)

In certain circumstances, a court may also

remand an agency action to the agency without vacating the rule.

See

id. (finding remand without vacatur to be an appropriate remedy based
on the unique facts of the case and within the court’s broad discretion
to fashion an equitable remedy); Sierra Club, Inc. v. St. Johns River
Water Mgmt. Dist., No. 614CV1877ORL40DAB, 2016 WL 1317775, at *2 (M.D.
Fla. Apr. 5, 2016) (remanding an agency action to the Corps without
vacatur); Lane v. United States, 338 F. Supp. 3d 1324, 1341 (S.D. Ga.
2018) (remanding a case back to the administrative law judge to determine
appropriate sanctions in light of the Court’s ruling).

Indeed, in

recently finding that the WOTUS Rule violated the notice and comment
requirements of the APA, the district court in the Southern District of
Texas did just that.

Texas v. U.S. E.P.A., No. 3:15-CV-00162, 2019 WL

2272464, at *6 (S.D. Tex. May 28, 2019).

In light of the circumstances

surrounding this case, this Court likewise finds that remand without
vacatur is the appropriate remedy.
In recognizing the availability of the remedy of remand without
vacatur, the Eleventh Circuit has explained that a court “must balance
the equities.”

Black Warrior Riverkeeper, 781 F.3d at 1271.
82

To do so,

the Eleventh Circuit adopted the D.C. Circuit’s test for when remand
without vacatur is appropriate, which considers “the seriousness of the
order’s deficiencies (and thus the extent of doubt whether the agency
chose correctly) and the disruptive consequences of an interim change
that may itself be changed.”

Id. (quoting Allied–Signal, Inc. v. U.S.

Nuclear Regulatory Comm’n, 988 F.2d 146, 150 (D.C. Cir. 1993)); see also
Sierra Club v. Van Antwerp, 526 F.3d 1353, 1369 (11th Cir. 2008) (“[I]t
is appropriate to consider the balance of equities and the public
interest, along with the magnitude of the agency’s errors and the
likelihood that they can be cured.” (Kravitch, J., concurring in part
and dissenting in part)). Balancing the equities of this case, the Court
finds that although the WOTUS Rule violates the CWA and the APA,
administrative efforts are already underway to repeal and replace the
WOTUS Rule with a new rule that abides by both statutes.

As such, an

order vacating the Rule may cause disruptive consequences to the ongoing
administrative process.

The more prudent course of action here is to

allow the Agencies to continue their efforts to change the WOTUS Rule
in light of the serious defects identified in this Order while leaving
this Court’s existing preliminary injunction in place.

See Texas, 2019

WL 2272464, at *6 (“[T]he Court finds that vacatur ‘would be disruptive,’
and there is a ‘serious possibility’ that the Agencies will be able to
resolve the notice-and-comment defects with the Final Rule if ‘given an
opportunity to do so.’” (quoting Cent. & S. W. Servis. v. E.P.A., 220
F.3d 683, 692 (5th Cir. 2000))).18

18

Although the Eleventh Circuit, in recognizing the availability of this remedy,
stated that it did not decide “whether remand without vacatur is permissible
when the agency has erred to such an extent as to indicate that its ultimate

83

Therefore, for the foregoing reasons, the Plaintiffs’ Motions for
Summary Judgment, dkt. nos. 199, 203, are GRANTED, and Intervenor
Defendants’ Motion for Summary Judgment, dkt. no. 211, is DENIED.

The

WOTUS Rule is hereby REMANDED to the Agencies for further proceedings
consistent with this Order.

Intervenor Plaintiffs’ Motion to Amend the

Court’s Preliminary Injunction, dkt. no. 208, is DENIED at this time.
The Court’s Preliminary Injunction, dkt. no. 174, will REMAIN in place
pending the outcome of the ongoing administrative proceedings regarding
the WOTUS Rule.

SO ORDERED, this 21st day of August, 2019.

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

decision was unlawful,” Black Warrior Riverkeeper, 781 F.3d at 1271, this Court
nonetheless finds this to be an appropriate remedy, after balancing the
equities, in a case such as this where vacatur has the potential to disrupt the
administrative process. Because the Agencies are currently working to pass a
new regulation to replace the WOTUS Rule that has already entered the noticeand-comment phase, this remedy will further clarify for the Agencies what
aspects of the WOTUS Rule are unlawful while allowing the administrative process
to proceed without disruption.

84