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`Case 4:20-cv-00266-RM Document 99 Filed 08/30/21 Page 1 of 11
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`WO
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Pasqua Yaqui Tribe, et al.,
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`Plaintiffs,
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`v.
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`United States Environmental Protection
`Agency, et al.,
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`No. CV-20-00266-TUC-RM
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`ORDER
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`Defendants.
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`Plaintiffs Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake
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`Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O’Odham Nation,
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`and Bad River Band of Lake Superior Chippewa (“Plaintiffs”) challenge two final rules
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`promulgated by the United States Environmental Protection Agency (“EPA”) and the
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`United States Army Corps of Engineers (“Corps of Engineers”) (collectively,
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`“Agencies”). (Doc. 1.) The first, entitled “Definition of ‘Waters of the United States’—
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`Recodification of Pre-Existing Rules,” 84 Fed. Reg. 56,626 (Oct. 22, 2019) (“2019
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`Repeal Rule”), repealed the 2015 “Clean Water Rule.” The second, entitled “The
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`Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 Fed.
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`Reg. 22,250 (Apr. 21, 2020) (“NWPR”), established a new definition of the phrase
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`“waters of the United States” in the Clean Water Act (“CWA”).
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`Plaintiffs moved for summary judgment on May 11, 2021. (Doc. 47.) On July 13,
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`2021, Defendant-Intervenors Chantell and Michael Sackett (“Sacketts”) filed a Cross-
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`Motion for Summary Judgment (Doc. 77), as did Defendant-Intervenors Arizona Rock
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`Case 4:20-cv-00266-RM Document 99 Filed 08/30/21 Page 2 of 11
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`Products Association; National Stone, Sand, and Gravel Association; Arizona Cattle
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`Feeders Association; Home Builders Association of Central Arizona; Arizona Farm and
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`Ranch Group; Arizona Farm Bureau; and Arizona Chapter Associated General
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`Contractors (collectively, “Business Intervenors”) (Doc. 79).
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`In lieu of filing a response to Plaintiffs’ Motion for Summary Judgment,
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`Defendants EPA, EPA Administrator Michael Regan, Corps of Engineers, and Acting
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`Assistant Secretary of the Army Jaime Pinkham (collectively, “Agency Defendants”)
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`filed a Motion for Voluntary Remand of the NWPR Without Vacatur and Motion for
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`Abeyance of Briefing on the 2019 Rule Claims. (Doc. 72.) Plaintiffs do not oppose
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`remand of the NWPR but argue that remand should include vacatur. (Doc. 74 at 1-12.)1
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`The Sacketts oppose remand. (Doc. 84.) The Business Intervenors do not oppose
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`remand but oppose Plaintiffs’ position that remand should include vacatur. (Doc. 85.)
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`The Court held a hearing on the Motion for Voluntary Remand on August 4, 2021 and
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`took the matter under advisement. (Doc. 92.)
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`For the following reasons, the Court will grant the Agency Defendants’ Motion for
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`Voluntary Remand, as well as Plaintiffs’ request that remand include vacatur.
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`I.
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`Background
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`The CWA was enacted in 1972 “to restore and maintain the chemical, physical,
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`and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Act regulates
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`discharges of pollutants from point sources to “navigable waters,” with “navigable
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`waters” defined as “waters of the United States, including the territorial seas.” 33 U.S.C.
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`§§ 1311(a), 1362(7), 1362(12). The statute does not further define the phrase “waters of
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`the United States.” For decades, that phrase was defined by regulation to include
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`tributaries and impoundments of interstate waters and other waters used in or affecting
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`interstate or foreign commerce, as well as wetlands adjacent to such waters, including
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`wetlands separated by man-made dikes or barriers, natural river berms, and beach dunes.
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`See 33 C.F.R. § 328.3(a), (c) (1986); see also 51 Fed. Reg. 41,206, 41,250 (Nov. 13,
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`1 All record citations refer to the page numbers generated by the Court’s electronic filing
`system.
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`Case 4:20-cv-00266-RM Document 99 Filed 08/30/21 Page 3 of 11
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`1986); 53 Fed. Reg. 20,764, 20,774 (June 6, 1988).
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`In Rapanos v. United States, a deeply divided Supreme Court considered whether
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`wetlands connected to distant navigable waters via ditches or artificial drains constitute
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`“waters of the United States” within the meaning of the CWA. 547 U.S. 715, 729 (2006)
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`(Scalia, J., plurality). Justice Scalia authored a four-justice plurality opinion concluding
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`(1) that “the phrase ‘waters of the United States’ includes only those relatively
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`permanent, standing or continuously flowing bodies of water forming geographic features
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`that are described in ordinary parlance as streams, oceans, rivers, and lakes”; and (2)
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`“only those wetlands with a continuous surface connection to bodies that are ‘waters of
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`the United States’ in their own right, so that there is no clear demarcation between waters
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`and wetlands, are adjacent to such waters and covered by the [CWA].” Id. at 739, 742
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`(Scalia, J., plurality) (internal quotation, emphasis, and alteration marks omitted). Justice
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`Kennedy concurred in the judgment of the plurality but wrote separately and found that
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`wetlands constitute “navigable waters” within the meaning of the CWA if there is “a
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`significant nexus between the wetlands” and traditionally navigable waters, such that “the
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`wetlands, either alone or in combination with similarly situated lands in the region,
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`significantly affect the chemical, physical, and biological integrity” of traditionally
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`navigable waters. Id. at 779-80 (Kennedy, J, concurring). Justice Kennedy and the four
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`dissenting justices all rejected Justice Scalia’s plurality opinion as “inconsistent with the
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`[CWA]’s text, structure, and purpose.” 547 U.S. at 776 (Kennedy, J., concurring); see id.
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`at 800 (Stevens, J., dissenting) (agreeing with Justice Kennedy that the limitations set
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`forth in the plurality opinion “are without support in the language and purposes of the
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`[CWA] or in [the Supreme Court’s] cases interpreting it”).
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`The Ninth Circuit subsequently held that Justice Kennedy’s Rapanos concurrence
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`is controlling under Supreme Court precedent for interpreting fractured decisions. N.
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`Cal. River Watch v. Cty. of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007); see also
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`United States v. Robertson, 875 F.3d 1281, 1290-1292 (9th Cir. 2017) (re-affirming
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`Healdsburg), vacated as moot, 139 S. Ct. 1543 (2019). Other circuit courts likewise
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`either adopted Justice Kennedy’s significant nexus test or found that CWA protections
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`applied upon satisfaction of either Justice Kennedy’s or Justice Scalia’s tests. See, e.g.,
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`United States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011); Precon Dev. Corp. v. U.S.
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`Army Corps of Eng’rs, 633 F.3d 278, 288-89 (4th Cir. 2011); United States v. Bailey, 571
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`F.3d 791, 799 (8th Cir. 2009); United States v. Robison, 505 F.3d 1208, 1221-22 (11th
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`Cir. 2007); United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006); United States v.
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`Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir. 2006).
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`In 2015, the Agencies adopted the “Clean Water Rule,” re-defining the term
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`“navigable waters.” 33 C.F.R. § 328.3 (2016); see also 80 Fed. Reg. 37,054 (June 29,
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`2015). As part of the rulemaking process, the Agencies produced a review of scientific
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`literature on the connections between tributaries, wetlands, and downstream waters, titled
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`“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis
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`of the Scientific Evidence” (“Connectivity Report”). (Doc. 64; Doc. 64-1; Doc. 64-2.)
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`On February 28, 2017, President Donald Trump issued Executive Order 13,778,
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`directing the Agencies to consider repealing the Clean Water Rule and replacing it with a
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`regulation adopting the reasoning of Justice Scalia’s plurality opinion in Rapanos. 82
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`Fed. Reg. 12,497 (Feb. 28, 2017). The Agencies repealed the Clean Water Rule in 2019
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`and re-instated the pre-2015 regulations. 84 Fed. Reg. 56,626 (Oct. 22, 2019). Then, in
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`the 2020 NWPR, the Agencies re-defined the term “navigable waters” to mean: (1) “[t]he
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`territorial seas” and waters used “in interstate or foreign commerce,” (2) “[t]ributaries,”
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`(3) “[l]akes and ponds, and impoundments of jurisdictional waters,” and (4) “[a]djacent
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`wetlands.” 33 C.F.R. § 328.3(a) (2020); see also 85 Fed. Reg. 22,250 (Apr. 1, 2020).
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`The NWPR strictly defines “tributaries” and “adjacent wetlands,” and it categorically
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`excludes certain features from the definition of “navigable waters,” including “ephemeral
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`streams.” 33 C.F.R. § 328.3(b), (c)(1), (c)(12). Consistent with Executive Order 13,778,
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`the NWPR is based in significant part on the Rapanos plurality opinion. See, e.g., 85
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`Fed. Reg. at 22,2259, 22,273, 22,279-80, 22,288-89, 22,291, 22,303-04, 22,308-10,
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`22,314, 22,319, 22,326. The Agencies published the NWPR notwithstanding feedback
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`Case 4:20-cv-00266-RM Document 99 Filed 08/30/21 Page 5 of 11
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`from the EPA Science Advisory Board that the NWPR conflicts with established science,
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`disregards key aspects of the 2015 Connectivity Report, and weakens protection of the
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`nation’s waters in contravention of the CWA’s objectives. (Doc. 63-8 at 2-5.)
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`On January 20, 2021, President Joe Biden issued Executive Order 13,990,
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`expressing the policy of the new administration:
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`to listen to the science; to improve public health and protect our environment; to
`ensure access to clean air and water; to limit exposure to dangerous chemicals and
`pesticides; to hold polluters accountable, including those who disproportionately
`harm communities of color and low-income communities; to reduce greenhouse
`gas emissions; to bolster resilience to the impacts of climate change; to restore and
`expand our national
`treasures and monuments; and
`to prioritize both
`environmental justice and the creation of the well-paying union jobs necessary to
`deliver on these goals.
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`86 Fed. Reg. 7,037 (Jan. 20, 2021). Executive Order 13,990 directed federal agencies “to
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`immediately review and, as appropriate and consistent with applicable law, take action to
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`address the promulgation of Federal regulations and other actions during the last 4 years
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`that conflict with these important national objectives.” Id.
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`Consistent with Executive Order 13,990, the EPA and Corps of Engineers have
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`provided notice of their intent to restore the pre-2015 regulatory definition of “waters of
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`the United States” while working to develop a new regulatory definition. (Doc. 89.) The
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`Agencies have not provided an estimate of when a new regulatory definition will be
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`published.
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`II. Motion to Remand
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` The Agency Defendants seek voluntary remand of the NWPR while they work to
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`revise or replace the rule and re-define “waters of the United States.” (Doc. 72; see also
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`Doc. 83 at 4.) Neither Plaintiffs nor the Business Intervenors oppose the Agency
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`Defendants’ request for voluntary remand. (Doc. 74 at 1-12; Doc. 85 at 1-7.) The
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`Sacketts oppose the request to the extent it seeks remand of the “adjacent wetlands”
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`provision of the NWPR. (Doc. 84.)
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`“A federal agency may request remand in order to reconsider its initial action.”
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`Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (per curiam).
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`Courts generally grant a voluntarily requested remand unless “the agency’s request is
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`frivolous or made in bad faith.” Id. Here, there is no indication in the record that the
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`Agency Defendants’ request for voluntary remand is frivolous or made in bad faith.
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`The Sacketts argue that the Agencies have no discretion to revise the NWPR’s
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`definition of “adjacent wetlands,” because that definition is required by the four-justice
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`plurality opinion in Rapanos, which the Sacketts assert is controlling under Supreme
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`Court and Ninth Circuit precedent for interpreting fractured decisions. (Doc. 84 at 2-3, 9-
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`16; see also Doc. 77-1 at 14-15, 19-42.) The Ninth Circuit recently rejected the Sacketts’
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`argument that the Rapanos plurality opinion is controlling, re-affirming Healdsburg’s
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`holding that Justice Kennedy’s concurrence is the controlling opinion from Rapanos.
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`Sackett v. EPA, No. 19-35469, 2021 WL 3611779, at *9-12, __ F.4th __ (9th Cir. Aug.
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`16, 2021). Accordingly, there is no merit to the Sacketts’ argument that remand is
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`inappropriate because the NWPR’s definition of “adjacent wetlands” is required by the
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`Rapanos plurality opinion. The Court will grant the Agency Defendants’ request for
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`voluntary remand.
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`III. Vacatur
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`Plaintiffs argue that remand of the NWPR must “include the usual remedy of
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`vacatur to prevent significant, irreversible harms.” (Doc. 74 at 2.) The Agency
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`Defendants have not requested vacatur (Doc. 72 at 13), and both the Sacketts and the
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`Business Intervenors urge the Court to reject Plaintiffs’ request for vacatur (Doc. 84 at
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`16-18; Doc. 85 at 7-13).
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`“Whether agency action should be vacated depends on how serious the agency’s
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`errors are and the disruptive consequences of an interim change that may itself be
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`changed.” Cal. Cmtys. Against Toxics, 688 F.3d at 992 (internal quotation marks
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`omitted). The Ninth Circuit has “only ordered remand without vacatur in limited
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`circumstances,” id. at 994, such as when vacatur would risk environmental harm or when
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`the agency could, by offering better reasoning or complying with procedural
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`requirements, “adopt the same rule on remand.” Pollinator Stewardship Council v. EPA,
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`Case 4:20-cv-00266-RM Document 99 Filed 08/30/21 Page 7 of 11
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`806 F.3d 520, 532 (9th Cir. 2015). For example, in California Communities Against
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`Toxics, the Ninth Circuit granted voluntary remand but remanded without vacatur
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`because vacatur was likely to delay construction of a much-needed power plant, risking
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`pollution from diesel generators used in the event of blackouts. 688 F.3d at 993-94.
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`Similarly, in Alliance for the Wild Rockies v. Marten, the Ninth Circuit found that equity
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`counseled in favor of remand without vacatur because vacatur “could have negative
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`consequences for the environment and public safety.” 789 Fed. App’x 583, 584-85 (9th
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`Cir. 2020) (mem.). In contrast, in Pollinator Stewardship Council, the Ninth Circuit
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`vacated and remanded because leaving the EPA action in place risked more potential
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`environmental harm than vacating it and because the EPA could reach a different result
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`on remand. 806 F.3d at 532-33.
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`The Sacketts cite to out-of-circuit authority finding remand with vacatur
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`inappropriate in the absence of a merits adjudication (Doc. 84 at 16-17), but the parties
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`have not identified any Ninth Circuit case so holding. In California Communities Against
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`Toxics, the Ninth Circuit considered a request for voluntary remand and applied the
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`ordinary considerations regarding the seriousness of the agency’s errors and the
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`consequences of an interim change in determining whether the remand should include
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`vacatur. 688 F.3d at 993-94. Similarly, in Safer Chemicals, Healthy Families v. EPA,
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`the Ninth Circuit granted a request by the EPA for voluntary remand with vacatur after
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`finding that the request was not frivolous or made in bad faith. 791 Fed. App’x 653, 656
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`(9th Cir. 2019) (mem.); see also ASSE Int’l, Inc. v. Kerry, 182 F. Supp. 3d 1059, 1064
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`(C.D. Cal. 2016) (“Courts faced with a motion for voluntary remand employ the same
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`equitable analysis courts use to decide whether to vacate agency action after a ruling on
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`the merits.” (internal quotation and alteration marks omitted)). California Communities
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`Against Toxics and Safer Chemicals indicate that, in the Ninth Circuit, remand with
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`vacatur may be appropriate even in the absence of a merits adjudication. Accordingly,
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`the Court will apply the ordinary test for whether remand should include vacatur.
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`. . . .
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`A.
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`Seriousness of Agency Errors
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`A final agency action is arbitrary and capricious in violation of the Administrative
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`Procedure Act, 5 U.S.C. § 706, if the agency “relied on factors which Congress has not
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`intended it to consider, entirely failed to consider an important aspect of the problem,
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`offered an explanation for its decision that runs counter to the evidence before the
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`agency, or is so implausible that it would not be ascribed to a difference in view or the
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`product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
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`Co., 463 U.S. 29, 43 (1983); see also Encino Motorcars, LLC. v Navarro, 136 S. Ct.
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`2117, 2125-26 (2016) (agency must provide reasoned explanation for a change in
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`position). “An agency conclusion that is in direct conflict with the conclusion of its own
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`experts . . . is arbitrary and capricious.” Nat. Res. Def. Council, Inc. v. Pritzker, 828 F.3d
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`1125, 1139 (9th Cir. 2016) (internal quotation marks omitted). In reviewing an agency’s
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`statutory construction, a court must determine, first, whether the intent of Congress is
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`clear, in which case that intent must be given effect; “if the statute is silent or ambiguous
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`with respect to the specific issue,” the Court must then determine whether the agency’s
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`construction is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron,
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`U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).
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`Plaintiffs argue that the NWPR disregards established science and the advice of
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`the Agencies’ own experts in order to re-define the statutory phrase “waters of the United
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`States” in a manner that a majority of justices in Rapanos rejected as inconsistent with
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`the CWA. (Doc. 48 at 25-41; Doc. 74 at 3, 6-7; Doc. 90 at 12-36.)2 The Agency
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`Defendants agree that there exist “substantial concerns about certain aspects of the
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`NWPR . . . including whether the NWPR adequately considered the CWA’s statutory
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`objective” and “the effects of the NWPR on the integrity of the nation’s waters.” (Doc.
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`72 at 11; see also Doc. 72-1 at 4-9; Doc. 72-2 at 4-9.) For example, the Agencies “are
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`concerned that the NWPR did not look closely enough at the effect ephemeral waters
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`2 Plaintiffs also argue that the NWPR is internally inconsistent, that the Agencies failed to
`adequately explain their change in position or analyze the environmental justice
`implications of the NWPR, and that the waste treatment exclusion of the NWPR is
`arbitrary and capricious. (Doc. 48 at 41-54; Doc. 90 at 36-44.)
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`have on traditional navigable waters” when deciding to “categorically exclude ephemeral
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`waters” from the definition of “waters of the United States.” (Doc. 72-1 at 6; Doc. 72-2
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`at 6.)
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`The concerns identified by Plaintiffs and the Agency Defendants are not mere
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`procedural errors or problems that could be remedied through further explanation. See
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`Pollinator Stewardship Council, 806 F.3d at 532. Rather, they involve fundamental,
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`substantive flaws that cannot be cured without revising or replacing the NWPR’s
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`definition of “waters of the United States.” Accordingly, this is not a case in which the
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`agency could adopt the same rule on remand by offering “better reasoning or . . .
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`complying with procedural rules.” Id.
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`Neither is this a case in which vacatur “could result in possible environmental
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`harm.” Id. To the contrary, remanding without vacatur would risk serious environmental
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`harm. The Agencies have “identified indicators of a substantial reduction in waters
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`covered under the NWPR compared to previous rules and practices.” (Doc. 72-1 at 6;
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`Doc. 72-2 at 6-7.) Between June 22, 2020 and April 15, 2021, the Corps made approved
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`jurisdictional determinations under the NWPR of 40,211 aquatic resources or water
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`features, and found that approximately 76% were non-jurisdictional. (Doc. 72-1 at 7;
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`Doc. 72-2 at 7.) The Agencies have identified 333 projects that would have required
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`Section 404 permitting under the CWA prior to the NWPR but no longer do. (Doc. 72-1
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`at 7; Doc. 72-2 at 7.) The reduction in jurisdiction has “been particularly significant in
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`arid states.” (Doc. 72-1 at 7; Doc. 72-2 at 7.) In New Mexico and Arizona, nearly every
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`one of over 1,500 streams assessed under the NWPR were found to be non-
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`jurisdictional—a significant shift from the status of streams under both the Clean Water
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`Rule and the pre-2015 regulatory regime. (Doc. 72-2 at 7; Doc. 72-2 at 7-8.) Impacts to
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`ephemeral streams, wetlands, and other aquatic resources could have “cascading and
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`cumulative downstream effects,” and the Agencies “have heard concerns from a broad
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`array of stakeholders . . . that the reduction in the jurisdictional scope of the CWA is
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`resulting in significant, actual environmental harms.” (Doc. 72-1 at 8-9; Doc. 72-2 at 8-
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`Case 4:20-cv-00266-RM Document 99 Filed 08/30/21 Page 10 of 11
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`9.)
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`The seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that
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`the Agencies will alter the NWPR’s definition of “waters of the United States,” and the
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`possibility of serious environmental harm if the NWPR remains in place upon remand, all
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`weigh in favor of remand with vacatur.
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`B.
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`Consequences of Interim Change
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`The Business Intervenors contend that a return to the pre-2015 regulatory regime
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`would increase regulatory uncertainty. (Doc. 85 at 8-10.) But regulatory uncertainty
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`typically attends vacatur of any rule and is insufficient to justify remand without vacatur.
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`See Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 85 (D.C. Cir. 2020) (“neither EPA
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`nor intervenors have identified any serious disruptive consequences of vacatur, resting
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`instead on the regulatory uncertainty that typically attends vacatur of any rule”). The pre-
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`2015 regulatory regime is familiar to the Agencies and industry alike, and the Agencies
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`have expressed an intent to repeal the NWPR and return to the pre-2015 regulatory
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`regime while working on a new definition of “waters of the United States.” (Doc. 89.)
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`The consequences of an interim change do not support the unusual remedy of remand
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`without vacatur.
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`C.
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`Conclusion
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`Because equity does not demand the atypical remedy of remand without vacatur,
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`see Pollinator Stewardship Council, 806 F.3d at 532, the Court will vacate and remand
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`the NWPR. Plaintiffs’ Complaint will be dismissed to the extent it challenges the
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`NWPR.
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`Plaintiffs’ Complaint and Motion for Summary Judgment also challenge the 2019
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`Repeal Rule, but the Motion focuses on the NWPR, as do the Intervenors’ Cross-Motions
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`for Summary Judgment. Because the Agency Defendants filed a Motion for Voluntary
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`Remand in lieu of a response to Plaintiffs’ Motion for Summary Judgment, the Agency
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`Defendants have not responded to Plaintiffs’ challenges to the 2019 Repeal Rule.
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`Because it may be beneficial to have further briefing focused on the 2019 Repeal Rule,
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`the Court will deny without prejudice all pending summary judgment motions, as well as
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`Plaintiffs’ Motion to Expedite Briefing, and will require the parties to file a proposal or
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`proposals for further proceedings concerning Plaintiffs’ challenge to the 2019 Repeal
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`Rule.
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`Accordingly,
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`IT IS ORDERED that the Agency Defendants’ Motion for Voluntary Remand
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`(Doc. 72) is granted to the extent it requests voluntary remand of the Navigable Waters
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`Protection Rule.
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`IT IS FURTHER ORDERED that the Navigable Waters Protection Rule is
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`vacated and remanded for reconsideration to the United States Environmental
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`Protection Agency and the United States Army Corps of Engineers. Counts I through IV
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`of Plaintiffs’ Complaint (Doc. 1) are dismissed.
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`IT IS FURTHER ORDERED that all other pending Motions (Docs. 47, 75, 77,
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`79) are denied without prejudice.
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`IT IS FURTHER ORDERED that within thirty (30) days of the date this Order
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`is filed, the parties shall file a proposal or proposals for further proceedings concerning
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`Plaintiffs’ challenge to the 2019 Repeal Rule in Count V of the Complaint.
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`Dated this 30th day of August, 2021.
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