United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's motion for a
preliminary injunction (Dkt. No. 15). Plaintiff seeks to
enjoin the Environmental Protection Agency and the U.S. Army
Corps of Engineers (collectively, the “Agencies”)
from enforcing, implementing, applying, or otherwise giving
effect to a final rule defining “waters of the United
States” (the “WOTUS Rule”) for purposes of
the Clean Water Act of 1972 (“CWA”), 33 U.S.C.
§§ 1251-1388. See Clean Water Rule:
Definition of “Waters of the United States, ” 80
Fed. Reg. 37, 054 (June 29, 2015) (codified at 33 C.F.R. pt.
328); (see generally Dkt. No. 15). On October 22,
2019, the Agencies published a final rule (the “Repeal
Rule”) “to repeal the [WOTUS Rule] . . . and to
restore the regulatory text that existed prior to the [WOTUS
Rule].” 84 Fed. Reg. 56, 626 (to be codified at 33
C.F.R. pt. 328). The Repeal Rule became effective on December
23, 2019. See id. at 56, 626.
courts may exercise jurisdiction over only certain
“cases” and “controversies.” See
Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d
1134, 1138 (9th Cir. 2000) (“Our role is neither to
issue advisory opinions nor to declare rights in hypothetical
cases, but to adjudicate live cases or controversies
consistent with the powers granted the judiciary in Article
III of the Constitution.”). As part of the
case-or-controversy requirement, a plaintiff must establish
that he or she has standing to bring suit in federal court.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). To establish standing, a plaintiff must demonstrate
that his or her injury is “concrete, particularized,
and actual or imminent; fairly traceable to the challenged
action; and redressable by a favorable ruling.”
Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409
(2013) (citation omitted). “A ‘concrete'
injury must be ‘de facto'; that is, it must
actually exist. Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1548 (2016) (citing Black's Law Dictionary 479 (9th
ed. 2009)). For an injury to be imminent, it must be
“certainly impending.” Clapper,
568 U.S. at 409 (citing Defs. of Wildlife, 504 U.S.
at 565). “[A] plaintiff must demonstrate standing
separately for each form of relief sought.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 185 (2000) (citing City of Los Angeles v.
Lyons, 461 U.S. 95, 109 (1983); Lewis v. Casey,
518 U.S. 343, 358 n.6 (1996)).
III's requirements must be continuously met throughout
the life of a case.” Robertson v. Allied Sols.,
LLC, 902 F.3d 690, 698 (7th Cir. 2018). “The
doctrine of mootness provides that ‘[t]he requisite
personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence
(mootness).'” Tanner Advert. Grp., L.L.C. v.
Fayette County, 451 F.3d 777, 785 (11th Cir. 2006)
(quoting U.S. Parole Comm'n v. Geraghty, 445
U.S. 388, 397 (1980)). “[I]n determining whether a
[claim for relief] is moot, [courts] should presume that the
repeal, amendment, or expiration of legislation will render
an action challenging the legislation moot, unless there is a
reasonable expectation that the legislative body will reenact
the challenged provision or one similar to it” based on
the record of the given case. Bd. of Trs. of Glazing
Health & Welfare Tr. v. Chambers, 941 F.3d 1195,
1198- 99 (9th Cir. 2019).
motion for a preliminary injunction, Plaintiff's claims
of irreparable harm are premised on its allegations that the
WOTUS Rule violates constitutional principles and expands the
CWA's jurisdiction such that Plaintiff's members will
have to obtain permits for previously unregulated projects.
(See Dkt. Nos. 15 at 19-20, 40 at 19-27.) When the
Repeal Rule became effective on December 23, 2019, the WOTUS
Rule ceased to have any legal effect. See, e.g.,
N. Carolina Growers' Ass'n, Inc. v. United Farm
Workers, 702 F.3d 755, 765 (4th Cir. 2012) (“When
the 2008 regulations took effect . . ., they superseded the
1987 regulations . . . . As a result, the 1987 regulations
ceased to have any legal effect, and their reinstatement
would have put in place a set of regulations that were new
and different ‘formulations' from the 2008
regulations.”). As the WOTUS Rule no longer has legal
effect, Plaintiff's claimed harms flowing from the rule
are neither concrete nor imminent. See Spokeo, 136
S.Ct. at 1548; Clapper, 568 U.S. at 409. And because
Plaintiff has not demonstrated that there is a reasonable
expectation that the Agencies will again promulgate the WOTUS
Rule or a rule similar to it, Plaintiff has not overcome the
presumption that the Repeal Rule rendered its motion for a
preliminary injunction moot. See Bd. of Trs. of Glazing
Health & Welfare Tr., 941 F.3d at
Plaintiff's motion for a preliminary injunction enjoining
the Agencies from enforcing, implementing, applying, or
otherwise giving effect to the WOTUS Rule (Dkt. No. 15) is
DENIED as moot. Plaintiff may refile its motion for a
preliminary injunction if the WOTUS Rule becomes effective
again in the future.
 In its response to the Court's
order to show cause dated October 8, 2019, Plaintiff argued
that injunctive relief against the WOTUS Rule would still be
necessary after the Repeal Rule took effect because
“[t]here also remains the risk that [Plaintiff's]
members may be subject to prosecution for actions taken
before the repeal of the [WOTUS Rule] goes into
effect.” (Dkt. No. 49 at 4) (citing Jacobus v.
Alaska, 338 F.3d 1095 (9th Cir. 2003)). The Ninth
Circuit's decision in Jacobus v. Alaska, 338
F.3d 1095 (9th Cir. 2003), relied on the specific facts of
that case and an Alaska state law that rendered individuals
liable for past violations of criminal statutes despite their
subsequent repeal or amendment. See id. at 1102-05.
The Ninth Circuit has since overruled Jacobus and
other cases inconsistent with the rule announced in Board
of Trustees of Glazing Health & Welfare ...