United States District Court, W.D. Washington, Seattle
PUGET SOUNDKEEPER ALLIANCE, SIERRA CLUB, and IDAHO CONSERVATION LEAGUE, Plaintiffs,
ANDREW WHEELER,  in his official capacity as Acting Administrator of the United States Environmental Protection Agency, and R.D. JAMES,  in his official capacity as Secretary of the Army for Civil Works, Defendants.
ORDER REQUESTING ADDITIONAL BRIEFING
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court sua sponte. Having
reviewed the summary judgment briefing of Plaintiffs (Dkt.
Nos. 67, 83), Intervenors (Dkt. Nos. 72, 86), and Defendants
(Dkt. Nos. 79, 87), the Court hereby ORDERS the parties to
submit additional briefing addressing several issues,
including why the Court should not stay this case.
The Clean Water Act
Clean Water Act of 1972 (the “CWA”), 33 U.S.C.
§§ 1251-388, prohibits the discharge of pollutants
into “navigable waters” absent compliance with
the CWA's permitting requirements and other pollution
prevention programs. 33 U.S.C. § 1311(a). Such programs
include the § 404 National Pollutant Discharge
Elimination System; the § 404 permitting program for
discharges of dredged or fill material; and the § 311
oil spill prevention and response programs. See 33
U.S.C. §§ 1321, 1342, 1344.
waters” is defined as “the waters of the United
States, including the territorial seas”
(“WOTUS”). See 33 U.S.C. §§
1251, 1321, 1342, 1344, 1362(7). Waste treatment systems were
excluded from the definition of WOTUS, and following a
notice-and-comment period, a 1980 rulemaking clarified the
application of this exclusion as “only to manmade
bodies of water which neither were originally created in
waters of the United States (such as a disposal area in
wetlands) nor resulted from the impoundment of waters of the
United States.” Consolidated CWA Permit Regulations, 45
Fed. Reg. 33, 290, 33, 424 (May 19, 1980) (to be codified at
40 C.F.R pt. 122). This provision was intended to prevent
polluters from using the waste treatment exclusion as a means
of impounding WOTUS for waste disposal purposes. (Dkt. No. 33
at 9.) However, two months later, the U.S. Environmental
Protection Agency (the “EPA”) suspended the
limiting language (the “suspension”) without
notice-and-comment in response to industry concerns, stating
that “EPA intends promptly to develop a revised
definition and to publish it as a proposed rule for public
comment. At the conclusion of that rulemaking, EPA will amend
the rule, or terminate the suspension.” Consolidated
Permit Regulations, 45 Fed. Reg. 48, 620, 48, 620 (July 21,
1980) (to be codified at 40 C.F.R pt. 122).
1983, the EPA continued the suspension. CWA Environmental
Permit Regulations, 48 Fed. Reg. 14, 146, 14, 157 n.1 (Apr.
1, 1983) (40 C.F.R. § 122.2). In 1984, the EPA issued a
proposed waste treatment system exclusion, which was
finalized in 1988 following a notice-and- comment period. CWA
§ 404 Program Definitions and Permit Exemptions, 53 Fed.
Reg. 20764, 20764 (June 6, 1988) (to be codified at 40 C.F.R.
pt. 232). In 1986, the Army Corps of Engineers (the
“Corps”) published an updated WOTUS definition
that maintained the suspension. Final Rule for Regulatory
Programs of the Corps, 51 Fed. Reg. 41206, 41, 250 (Nov. 13,
1986) (33 C.F.R. § 328.3).
2015 Final Rule
2014, Defendants proposed a revised WOTUS definition with
“no change to the exclusion for waste treatment systems
. . . .” Definition of WOTUS under the CWA, 79 Fed.
Reg. 22, 188, 22, 189 (Apr. 21, 2014) (to be codified at 40
C.F.R. pt. 122). Defendants specified that they “[did]
not seek comment on [the suspension]” because they did
not intend to change it. Id. at 22, 190. Plaintiffs
submitted comments on the revisions. (See Dkt. Nos.
67-1, 67-2.) Defendants did not consider comments regarding
the suspension because those comments were “outside the
scope of the proposed rule.” CWA: Definition of WOTUS,
80 Fed. Reg. 37, 054, 37, 097 (June 29, 2015) (to be codified
at 40 C.F.R. pt. 122). On June 29, 2015, Defendants
promulgated the “Clean Water Rule: Definition of
‘Waters of the United States'” (the
“2015 Final Rule”), which included, among other
revisions, a renewal of the suspension. See Id. at
37, 114. The 2015 Final Rule also defines three categories of
waters: (1) waters that are “jurisdictional-by-rule,
” which are categorically included in the definition of
WOTUS and are thus protected under the CWA; (2) waters that
are protected for having a “significant nexus” to
jurisdictional waters; and (3) waters that are categorically
excluded from the definition of WOTUS, including those within
the waste treatment system exclusion. 80 Fed. Reg. at 37,
August 20, 2015, Plaintiffs sued Defendants, alleging that
Defendants violated the terms of the CWA when they enacted
the 2015 Final Rule. (Dkt. No. 1 at 16-17.) Plaintiffs also
allege that the 2015 Final Rule is arbitrary and capricious
under the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701-06, and that Defendants' failure to
address the suspension constitutes an unlawfully withheld or
unreasonably delayed agency action in violation of the APA.
(Id. at 18-19.) Plaintiffs allege that they and
their members “are harmed by provisions in the 
Final Rule that deprive certain waters of the protections
afforded under CWA programs, increasing the potential for
pollution and other adverse harm to waters that Plaintiffs
and their members use and enjoy and work to protect.”
(Id. at 3.)
1, 2018, Plaintiffs amended their complaint, adding a
challenge to a second final rule, 82 Fed. Reg. 55, 542 (Nov.
22, 2017) (the “Applicability Date Rule”),
promulgated by the EPA and the Corps. (Dkt. No. 33 at 19-21,
24-25.) Plaintiffs alleged that Defendants lacked statutory
authority to promulgate the Applicability Date Rule, and that
the Applicability Date Rule was arbitrary and capricious
under the APA. (Id. at 24-25.) Intervenors, a number
of industry groups, were granted leave to intervene.
(See Dkt. Nos. 41, 50.) On November 26, 2018, after
Plaintiffs moved for summary judgment, the Court ultimately
vacated the Applicability Date Rule nationwide. (See
Dkt. No. 61.)
Pending Summary Judgment Motions
April 4, 2019, Plaintiffs filed a second motion for summary
judgment, asserting that the waste treatment system exclusion
and continued suspension of its limiting language in the 2015
Final Rule is illegal because it contravenes statutory
authority and congressional intent, it is arbitrary and
capricious, and was carried out without the APA's
mandatory notice-and-comment period. (Dkt. No. 67 at 10-17.)
Plaintiffs seek a declaratory ruling and permanent ...