Case 1:20-cv-01734-KBJ Document 1 Filed 06/25/20 Page 1 of 52
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`ENVIRONMENTAL INTEGRITY
`PROJECT
`1000 Vermont Avenue NW, Suite 1100
`Washington, DC 20005,
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`FOOD & WATER WATCH
`1616 P Street NW
`Washington, DC 20003,
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`GUNPOWDER RIVERKEEPER
`P.O. Box 156
`Monkton, MD 21111
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`LOWER SUSQUEHANNA
`RIVERKEEPER
`2098 Long Level Road
`Wrightsville, PA 17368
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`and
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`PATUXENT RIVERKEEPER
`17412 Nottingham Road
`Upper Marlboro, MD 20772
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`Plaintiffs,
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`v.
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`
`
`ANDREW WHEELER, in his official
`capacity as Administrator of the United States
`Environmental Protection Agency
`1200 Pennsylvania Ave., NW
`Washington, DC 20460
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`UNITED STATES
`ENVIRONMENTAL
`PROTECTION AGENCY
`1200 Pennsylvania Ave., NW
`Washington, DC 20460
`
`RICKEY DALE “R.D.” JAMES, in his
`official capacity as Assistant Secretary of the
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`
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` Civil Action No. 1:20-cv-1734
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` COMPLAINT FOR
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` INJUNCTIVE RELIEF
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`Case 1:20-cv-01734-KBJ Document 1 Filed 06/25/20 Page 2 of 52
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`United States Army Corps of Engineers (Civil
`Works)
`441 G Street NW
`Washington, DC 20314
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`and
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`UNITED STATES ARMY CORPS OF
`ENGINEERS
`441 G Street NW
`Washington, DC 20314
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`Defendants.
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`INTRODUCTION
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`1.
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`Plaintiffs Environmental Integrity Project, Food & Water Watch, Gunpowder
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`Riverkeeper, Lower Susquehanna Riverkeeper, and Patuxent Riverkeeper (collectively,
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`“Plaintiffs”), bring this action for declaratory and injunctive relief against the United States
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`Environmental Protection Agency (“EPA”); Andrew R. Wheeler, in his capacity as
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`Administrator of EPA; the United States Army Corps of Engineers (“Army Corps” or “the
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`Corps”); and Ricky Dale James, in his capacity as Assistant Secretary of the Corps (collectively,
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`the “Agencies”).
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`2.
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`Plaintiffs seek judicial review under the Administrative Procedure Act, 5 U.S.C. §
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`551 et seq. (“APA”) of the Agencies’ recently promulgated final rule entitled “The Navigable
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`Waters Protection Rule: Definition of ‘Waters of the United States,’” 85 Fed. Reg. 22,250 (Apr.
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`21, 2020) (“2020 Final Rule”).
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`3.
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`In the 2020 Final Rule, the Agencies seek to substantially revise the interpretation
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`of the term “waters of the United States,” which establishes the waters subject to jurisdiction
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`under the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA” or “Act”).
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`1
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`4.
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`Because the term “waters of the United States” defines the scope of which waters
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`are subject to the Act’s substantive requirements—including the Act’s permitting requirements—
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`the scope of its definition is of fundamental importance to the faithful execution of and
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`attainment with the Act’s overarching objective: “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).
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`5.
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`The 2020 Final Rule is the final step in the Agencies’ efforts to repeal and replace
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`their 2015 rule defining the “waters of the United States,” which sought to implement the
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`“significant nexus” standard articulated by Justice Anthony Kennedy’s concurrence in Rapanos
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`v. United States, 547 U.S. 715 (2006), and was based upon the Agencies’ considerable expertise,
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`extensive scientific analyses, and factual findings about the chemical, physical, and biological
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`connectivity of waterbodies. See 80 Fed. Reg. 37,054 (June 29, 2015) (“2015 Clean Water
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`Rule”). In promulgating the 2015 Clean Water Rule, the Agencies compiled and relied upon a
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`substantial record that demonstrated the waterbodies regulated by the rule had significant and
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`cumulative effects on the water quality and integrity of downstream jurisdictional waters.
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`6.
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`On February 28, 2017, President Donald Trump issued Executive Order 13778,
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`which ordered the Agencies to “publish for notice and comment a proposed rule rescinding or
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`revising” the 2015 Clean Water Rule and to propose a new definition of “waters of the United
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`States” consistent with the President’s stated policy objectives of “promoting economic growth,
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`minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the
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`States under the Constitution.”
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`7.
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`Executive Order 13778 further ordered that for purposes of this proposed rule, the
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`Agencies “shall consider interpreting the term ‘navigable waters…’ in a manner consistent with
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`the opinion of Justice Antonin Scalia in Rapanos.”
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`2
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`8.
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`Shortly after the issuance of Executive Order 13778, the Agencies initiated a two-
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`step process, consisting of two parallel rulemakings, intended to first repeal the 2015 Clean
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`Water Rule and then replace it with a revised definition of “waters of the United States.”
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`9.
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`In “step one” of the process, the Agencies issued a proposed rule seeking to repeal
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`the 2015 Clean Water Rule and re-codify the definition of “waters of the United States” that had
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`previously been established by the Agencies in 1986. See generally 82 Fed. Reg. 34,899 (July
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`27, 2017). In 2019, the Agencies promulgated their final rule repealing the 2015 Clean Water
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`Rule and re-codifying the 1986 definitions. See generally 84 Fed. Reg. 56,626 (Oct. 22, 2019).
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`10.
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`As “step two” of the process, the Agencies issued a proposed rule “intended to
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`review and revise the definition of ‘waters of the United States’ consistent with” Executive Order
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`13778. See Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4154, 4154
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`(February 14, 2019) (the “2019 Proposed Rule”). The Agencies concluded their process with the
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`promulgation of the 2020 Final Rule, which replaced the 1986 definition of “waters of the United
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`States” with an even narrower definition categorically excluding many waters over which the
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`Agencies have asserted CWA jurisdiction since the CWA’s enactment.
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`11.
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`The Agencies adopted the 2020 Final Rule over the sustained objections of the
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`Agencies’ own experts and EPA’s Science Advisory Board, whose comments on the 2019
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`Proposed Rule stated that the Agencies’ proposed bright-line definitions—in particular the
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`categorical exclusion of any waters connected to jurisdictional waters by subsurface hydrological
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`connections—contradicted all established science, failed to provide long-term regulatory clarity,
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`would likely result in unjustified new risks to human and environmental health, and were
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`inconsistent with the plain text and objectives of the Act and the Agencies’ interpretation of the
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`Act since its enactment. See, e.g., 2020 Final Rule at 22,261.
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`3
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`12.
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`As instructed by Executive Order 13778, the 2020 Final Rule discarded the
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`“significant nexus” standard established by Rapanos—which had been endorsed by a majority of
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`Justices on the Court—and instead crafted a new standard consistent with Justice Scalia’s
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`interpretation—which had been rejected by a majority of Justices.
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`13.
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`The Agencies justified this profound and abrupt departure from their own long-
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`standing policies and the overwhelmingly contrary weight of scientific evidence by asserting that
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`an agency is free to change its policies so long as it provides “a reasoned explanation for the
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`actions it takes,” and that “[a] change in administration… is a perfectly reasonable basis” for an
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`agency to revise its policies. 2019 Proposed Rule at 4,169.
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`14.
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`The 2020 Final Rule states that “as directed by Executive Order 13778… the
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`agencies are establishing this line-drawing based primarily on their interpretation of their
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`authority under the Constitution and the language, structure, and legislative history of the CWA,
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`as articulated in decisions by the Supreme Court.” 2020 Final Rule at 22,270.
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`15.
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`The 2020 Final Rule also states that the Agencies based the rule on their “unifying
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`legal theory for federal jurisdiction over those waters and wetlands that maintain a sufficient
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`surface water connection to traditional navigable waters… that preserves the traditional
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`sovereignty of States over their own land and water resources” and “is intended to ensure that the
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`agencies operate within the scope of the Federal government’s authority over navigable waters
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`under the CWA and the Commerce Clause of the U.S. Constitution.” Id. at 22,252.
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`16.
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`On April 23, 2020, a six-Justice majority of the Supreme Court rejected the
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`Agencies’ revised interpretation of the CWA as expressed by the Solicitor General, who at the
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`time argued consistent with the position that would be taken in the 2020 Final Rule that “all
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`releases of pollutants to groundwater are excluded from the scope of the permitting program,
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`4
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`even where pollutants are conveyed to jurisdictional surface waters via groundwater.” Cty. of
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`Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1474 (2020) (internal quotations
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`omitted). In rejecting this interpretation, the Court held that “EPA’s reading would open a
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`loophole allowing easy evasion of the statutory provision's basic purposes. Such an interpretation
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`is neither persuasive nor reasonable.” Id.
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`17.
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`Thus, the 2020 Final Rule’s definition not only conflicts with the plain text and
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`purpose of the CWA, defeats a central purpose of the CWA, and disregards judicial precedent,
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`established science, and the Agencies’ prior factual findings and longstanding policies and
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`practices, but does so without any rational, let alone “reasonable,” explanation.
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`18.
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`Accordingly, Plaintiffs respectfully request that this Court declare that the 2020
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`Final Rule is arbitrary and capricious, not otherwise in accordance with law, and in excess of the
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`Agencies’ statutory jurisdiction, in violation of the APA, 5 U.S.C. § 551 et seq., and set aside
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`and vacate the rule.
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`JURISDICTION AND VENUE
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`19.
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`This action is brought pursuant to the judicial review provisions of the APA, 5
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`U.S.C. §§ 701-06, which waive the defendant Agencies’ sovereign immunity. See 5 U.S.C. § 702
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`(“The United States may be named as a defendant in any such action [seeking relief other than
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`money damages], and a judgment or decree may be entered against the United States[.]”); see
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`also Cohen v. United States, 650 F.3d 717, 723 (D.C. Cir. 2011) (“there is no doubt Congress
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`lifted the bar of sovereign immunity in actions not seeking money damages” under the APA).
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`20.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. § 1331 (federal questions provision). See also Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S.
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`5
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`Ct. 617, 623 (2018) (holding any challenges to the Agencies’ “waters of the United States”
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`rulemakings under the APA “must be filed in federal district courts.”).
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`21.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(1) because
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`defendants are federal agencies and officers or employees of the United States acting in their
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`official capacities who officially reside within this District, a substantial part of the events giving
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`rise to the claim occurred in this District, and at least one plaintiff physically resides in this
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`District.
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`PLAINTIFFS
`Plaintiff organizations are local or national 501(c)(3) non-profit environmental
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`22.
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`organizations whose organizational purposes encompass “restor[ing] and maintain[ing] the
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`chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`23.
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`Plaintiffs qualify as “persons” within the meaning of 5 U.S.C. § 701(b)(2) and 5
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`U.S.C. § 551(2).
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`24.
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`Plaintiff Environmental Integrity Project (“EIP”) is a nonpartisan, nonprofit
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`organization headquartered in Washington, D.C. and founded in 2002 by former EPA
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`enforcement attorneys for the purpose of advocating for more effective enforcement of
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`environmental laws. EIP’s three main organizational objectives are: (1) to illustrate through
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`objective facts and data how the failure to enforce or implement environmental laws increases
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`pollution and affects the public’s health; (2) to hold federal and state agencies, as well as private
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`entities, accountable for failing to enforce or comply with environmental laws; and (3) to help
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`local communities and underrepresented populations in key states obtain the protection of
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`environmental laws.
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`25.
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`Since its founding, one of EIP’s core missions has been advocating for stronger
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`water protections and enforcing existing water protections for the nation’s waterbodies,
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`particularly in the Chesapeake Bay watershed region. A central part of this mission includes
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`monitoring and assuring compliance with the Chesapeake Bay Total Maximum Daily Load
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`(“Bay TMDL”), which establishes limits on the amount of pollutants entering the Bay and its
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`tributaries from the states of Maryland, Virginia, West Virginia, Pennsylvania, Delaware, New
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`York, and the District of Columbia, and was implemented by EPA and the states under the CWA
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`for the purpose of restoring and protecting the waters of the Bay region. See generally 76 Fed.
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`Reg. 549 (Jan. 5, 2011) (establishing the Bay TMDL). To ensure compliance with the Bay
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`TMDL and the CWA, EIP routinely reviews and comments on proposed CWA permits and
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`federal and state water regulations, actively reviews data generated by sources of water
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`pollutants to ensure compliance with existing permit requirements, and files citizen suits where
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`necessary to enforce compliance. EIP’s research analysts also review, compile, and analyze data
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`on pollutant discharges obtained through disclosures required by the CWA and independent
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`monitoring for the purpose of publicly disseminating said data to inform citizens and legislators
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`of issues critical to water protection in the region. Recent EIP reports have included assessments
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`of state progress towards achieving the Bay TMDL’s cleanup targets,1 the impact of agricultural
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`sources of pollution on achievement of the Bay TMDL’s goals,2 and the potential regulatory
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`1 See generally EIP Report, “The State of Chesapeake Bay Watershed Modeling: Comparing the Updated
`Phase 6 ‘Total Maximum Daily Load’ Watershed Model to the Former Phase 5.3.2 Model.” (July 25,
`2019). Accessible at:
`https://environmentalintegrity.org/wp-content/uploads/2019/08/Chesapeake-Bay-Watershed-
`Modeling.pdf
`2 See generally EIP Report, “Poultry and Manure Production on Virginia’s Eastern Shore: Rapid Growth
`and Poor Environmental Compliance Threaten Waterways in Accomack County.” (April 22, 2020).
`Accessible at: https://environmentalintegrity.org/wp-content/uploads/2020/04/VA-Eastern-Shore-Poultry-
`Report-4.22.20.pdf
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`consequences of the Agencies’ (at the time proposed) efforts to repeal and replace the 2015
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`Clean Water Rule on the Chesapeake Bay watershed.3
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`26.
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`EIP as an organization will be harmed by the 2020 Final Rule’s removal of CWA
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`protection from vast numbers of waterbodies in the Chesapeake Bay watershed region that had
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`previously subject to CWA protection under the 2015 Clean Water Rule. These waters include,
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`for example, potentially 37,809 miles of headwater and ephemeral streams, as well as “Delmarva
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`bays” or “potholes”—non-tidal wetlands in low-lying areas covering roughly 34,560 acres of the
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`Eastern Shore of Maryland and Delaware—which the 2015 Clean Water Rule concluded served
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`a myriad of critical chemical and biological functions for downstream traditional navigable
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`waters despite the fact that many are connected to such waters only through subsurface
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`hydrological connections. See 2015 Clean Water Rule at 37,071-3.
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`27.
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`The 2020 Final Rule’s categorical exclusion of these waters from CWA
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`protection—in spite of the Agencies’ prior findings that such waters will inevitably impact the
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`integrity of downstream waters and thus the Bay TMDL—will frustrate and perceptibly impair
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`EIP’s mission by making it more difficult for EIP to protect the waters of the Bay region and
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`ensure the attainment of the Bay TMDL. As discharges into excluded waters will no longer be
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`subject to a permit requirement—or the requirements to disclose and self-report information
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`regarding discharges typically required by such permits—the 2020 Final Rule will deprive EIP
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`of the crucial information it relies upon to analyze and assess the integrity of local waters,
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`identify and educate the public and legislators on concerns to human and environmental health,
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`and promote sound and effective policies addressing such concerns. The removal of jurisdiction
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`3 See generally EIP Report, “Undermining Protection for Wetlands and Streams: What Proposed Federal
`Rollbacks Mean for the Chesapeake Region.” (Dec. 12, 2018). Accessible at:
`https://environmentalintegrity.org/wp-content/uploads/2018/12/Chesapeake-Wetlands-report.pdf
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`from these waters will also preclude EIP from protecting downstream jurisdictional waters
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`through its normal avenues, such as participating in CWA permitting processes and federal
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`citizen suits to enforce compliance with federal and state requirements as authorized under the
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`CWA.
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`28.
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`The 2020 Final Rule will also harm EIP by forcing it to increase the resources it
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`must devote to its water protection programs merely to maintain the status quo. For example,
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`because state water laws often contain statutory gaps—particularly with regards to wetlands
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`protection—that were previously covered by federal protection under the CWA, the 2020 Final
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`Rule’s drastic reduction in the scope of waters protected under the Act will harm EIP by forcing
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`it to divert resources to independently monitoring discharges and water quality to identify and
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`counteract pollutant increases in each state likely to result from the Agencies’ abdication of
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`CWA authority. The 2020 Final Rule will also force EIP to divide its limited resources across a
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`patchwork of inconsistent state regulatory regimes to ensure that regional water quality and
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`progress towards the Bay TMDL does not deteriorate below standards previously established and
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`enforceable under the CWA. For these reasons, EIP previously submitted comments opposing
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`the Agencies’ 2019 Proposed Rule4 and brings this action against the 2020 Final Rule.
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`29.
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`Plaintiff Food & Water Watch (“FWW”) is a national nonprofit organization that
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`mobilizes regular people to build political power to move bold and uncompromised solutions to
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`the most pressing food, water, and climate problems of our time. FWW has more than one
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`million members and supporters nationwide, and is headquartered in Washington, D.C. but
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`4 See generally Comments of the Environmental Integrity Project and Food & Water Watch on the
`Agencies’ Proposed “Revised Definition of Waters of the United States.” (Apr. 15, 2019). Docket No.
`EPA-HQ-OW-2018-0149-11440. Accessible at:
`https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OW-2018-0149-
`11440&attachmentNumber=1&contentType=pdf
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`maintains offices across the country. FWW uses grassroots organizing, media outreach, public
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`education, research, policy analysis, and litigation to protect people’s health, communities, and
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`democracy from the growing destructive power of the most powerful economic interests.
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`Protecting waterways and combating the water pollution and other harms associated with
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`concentrated animal feeding operations (“CAFOs”), fossil fuel infrastructure, and other industrial
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`polluters are among FWW’s priority issues.
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`30.
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`FWW has advocated for stronger clean water protections since its founding in
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`2005. FWW is engaged in several campaigns and litigation efforts to hold CAFOs accountable
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`for their water pollution and other harms through stronger regulation and enforcement, increased
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`transparency, and public education and engagement. FWW communicates extensively with its
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`members, supporters, and the general public about threats to U.S. waterways by releasing reports
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`and fact sheets, issuing press releases and statements, publishing online news pieces, and sending
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`emails and action alerts. FWW also has more than a decade of experience advocating for
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`stronger oversight of CAFO water pollution, including by petitioning EPA to strengthen its
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`CAFO Clean Water Act regulations and challenging several state- and EPA-issued CAFO
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`discharge permits for failing to meet federal and state water protection requirements. Ensuring
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`that as many waterways as possible are protected under the CWA is central to this work, as many
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`CAFOs discharge pollution into waterways not protected under the 2020 Final Rule but with a
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`“significant nexus” to a traditionally navigable water and harm downstream water quality.
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`31.
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`FWW as an organization will be harmed by the 2020 Final Rule’s removal of
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`CWA protection from vast numbers of waterbodies. The 2020 Final Rule will frustrate and
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`perceptibly impair FWW’s mission by undermining CAFO permitting requirements and further
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`threatening these waterways with unchecked pollution, forcing FWW to commit resources to
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`identify and counteract pollutant increases likely to result, depriving FWW of key information it
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`relies upon to educate its members and the public, and precluding FWW from combating water
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`pollution through its normal avenues such as participation in CAFO permitting and citizen suits
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`under the CWA.
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`32.
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`The 2020 Final Rule will also injure the aesthetic, recreational, and financial
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`interests of FWW’s individual members who live and/or recreate in, on, or in close proximity to
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`waterways affected by the rule, regularly visit and use such waterways for aesthetic and
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`recreational purposes, are concerned that they will likely be exposed to and adversely affected by
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`increases in pollutant discharges resulting from the 2020 Final Rule’s removal of CWA
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`protection from these waterways, and would ordinarily have standing to sue in their own right.
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`For these reasons, FWW previously submitted comments opposing the 2019 Proposed Rule, see
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`supra footnote 4, and joins this action against the 2020 Final Rule.
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`33.
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`Gunpowder Riverkeeper (“GRK”) is a local nonprofit organization dedicated to
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`the purpose of protecting, conserving, and restoring the Gunpowder River—a 6.8-mile long tidal
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`inlet located in Maryland—and its watershed. GRK and its approximately 175 members are
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`committed to ensuring that the important aesthetic, recreational, and economic values served by
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`the Gunpowder River watershed are preserved for all users and members of the public. These
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`commitments are central to its mission. The chemical and biological integrity of the Gunpowder
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`River is especially vital to preserving populations of local wildlife essential to the fishing,
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`aquaculture, and recreational activities which comprise a substantial portion of the economic
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`activities in the Bay region and sustain the livelihoods of many of GRK’s individual members.
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`34.
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`As a part of its mission, GRK conducts independent water quality tests for
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`bacteria and other harmful pollutants in the watershed, uses geographic information system
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`mapping to visually report the results of these water quality tests, and shares this data with
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`regulatory agencies and the public (through its website) for the purpose of raising public
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`awareness of water quality issues and informing the public as to how choices residents make can
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`impact local rivers and streams. GRK also monitors discharges from nearby industrial activities
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`as well as agricultural, commercial, and residential compliance with stormwater runoff
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`requirements, and advocates for best management practices for such discharges.
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`35.
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`GRK as an organization will be harmed by the 2020 Final Rule. The 2020 Final
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`Rule’s categorical exclusion from CWA protection of upstream waters which inevitably impact
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`the Gunpowder River will frustrate and perceptibly impair GRK’s mission by making it more
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`difficult for GRK to restore and protect the waters of the Gunpowder River watershed,
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`undermining GRK’s efforts to reduce runoff and discharges into the Gunpowder River and its
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`watershed, and precluding GRK from combating water pollution through its normal avenues
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`such as participation in CWA permitting processes and litigation under the CWA’s citizen suit
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`provision. The 2020 Final Rule will also harm GRK by forcing it to devote resources to identify
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`and counteract pollutant increases likely to result from the removal of CWA protection from
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`upstream waters.
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`36.
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`The 2020 Final Rule will also injure the aesthetic, recreational, and economic
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`interests of GRK’s individual members who live near the Gunpowder River and its tributaries
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`and regularly use such waterways for aesthetic, recreational, and economic purposes, are
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`concerned that they will likely be exposed to and adversely affected by increases in pollutant
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`discharges resulting from the 2020 Final Rule’s removal of CWA protection from these
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`waterways, and would ordinarily have standing to sue in their own right. In particular, numerous
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`members of GRK rely upon business from fly-fishing and tourism encouraged by the cold-water
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`fishery resources and scenic natural beauty of the Gunpowder River and its tributaries for their
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`economic livelihoods, and would be economically harmed by any degradation of local water
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`quality or wildlife populations.
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`37.
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`Plaintiff Lower Susquehanna Riverkeeper (“LSRA”) is a grassroots nonprofit
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`membership organization that is dedicated to improving and protecting the ecological and
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`biological integrity of the Susquehanna River in both Pennsylvania and Maryland. The
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`Susquehanna River is the longest river on the East Coast of the United States and a very
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`important tributary of the Chesapeake Bay. LSRA and its members, who include local residents,
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`outdoorsmen, recreationalists, and families, are dedicated to preserving safe drinking water, the
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`sustainable use of natural resources, and the ability to fish, swim, and recreate safely in the
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`Susquehanna River and her tributaries. LSRA works with local decision-makers and
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`conservation districts to emphasize the economic and social benefits of conservation and
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`addresses violations at construction, industrial, and agricultural sites, coordinates cleanups and
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`watershed improvement projects, and takes legal action when necessary to enforce existing laws.
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`38.
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`LSRA as an organization will be harmed by the 2020 Final Rule. The 2020 Final
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`Rule’s categorical exclusion from CWA protection of upstream waters, including ephemeral
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`streams, which inevitably impact the Susquehanna River will frustrate and perceptibly impair
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`LSRA’s mission by making it more difficult for LSRA to restore the waters of the Susquehanna
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`River watershed, undermining LSRA’s efforts to reduce agricultural encroachment upon nearby
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`wetlands, and precluding LSRA from combating water pollution through its normal avenues
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`such as participation in CWA permitting processes and litigation under the CWA’s citizen suit
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`provision. The 2020 Final Rule will also harm LSRA by forcing it to devote resources to identify
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`and counteract pollutant increases likely to result from the removal of CWA protection from
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`upstream waters—particularly nearby wetlands.
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`39.
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`The 2020 Final Rule will also injure the aesthetic, recreational, and financial
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`interests of LSRA’s individual members who live and/or recreate in, on, or in close proximity to
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`waterways affected by the rule, regularly visit and use such waterways for aesthetic and
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`recreational purposes, are concerned that they will likely be exposed to and adversely affected by
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`increases in pollutant discharges resulting from the 2020 Final Rule’s removal of CWA
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`protection from these waterways, and would ordinarily have standing to sue in their own right.
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`40.
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`Plaintiff Patuxent Riverkeeper (“PRK”) is a Maryland-based grassroots
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`membership organization formed in 2005 and dedicated to the purpose of conserving, protecting,
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`and replenishing the Patuxent River and its watershed. The Patuxent River is Maryland’s longest
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`and deepest intrastate waterway and a critical tributary of the Chesapeake Bay (ranking seventh
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`highest amongst all tributaries in terms of fresh-water flow into the Bay) and provides extended
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`habitat for a wide array of indigenous and migratory wildlife, including over 100 species of fish.
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`A number of smaller tributaries that branch from the river as it flows southward through
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`Maryland’s western shore, as well as the river’s tidal and estuarial zones in its southern reaches,
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`help comprise the Patuxent watershed’s total drainage into the Bay.
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`41.
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`PRK employs a combination of strategic advocacy, restoration activities, and
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`public education to ensure the long-term sustainability of the ecosystem of the entire Patuxent
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`River basin on behalf of all members of the public. PRK’s activities include seeking more
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`stringent enforcement of stormwater runoff regulations, monitoring upgrades and compliance for
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`both major and minor wastewater sewage sources, conducting independent monitoring and
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`bringing litigation where necessary, advocating for the preservation of open spaces, wetlands,
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`and other stream buffers against agricultural encroachment, and promoting comprehensive plans
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`to clean up the river and encourage practices that prevent further degradation. PRK also
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`organizes efforts to clean up and restore the river, maintains a group of volunteers dedicated to
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`preserving river flow and fish passages, works to improve public access for paddling and similar
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`low-impact recreational activities, and raises public awareness of issues affecting the Patuxent
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`River basin’s waters through speaking events and guided river tours at PRK’s visitor center.
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`42.
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`PRK as an organization will be harmed by the 2020 Final Rule. The 2020 Final
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`Rule’s categorical exclusion from CWA protection of upstream waters which inevitably impact
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`the Patuxent watershed will frustrate and perceptibly impair PRK’s mission by making it harder
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`to prevent further degradation, undermining their efforts to clean up and restore the river, forcing
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`PRK to devote resources to identify and counteract pollutant increases likely to flow from
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`upstream excluded waters, and by precluding PRK from combating water pollution through its
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`normal avenues such as participation in permitting and citizen suits under the CWA. Degradation
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`of the river’s water quality will also harm PRK financially by potentially discouraging members
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`of the public from signing up for PRK’s guided paddling tours as a result of diminished aesthetic
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`beauty and potential health concerns related to contact with polluted waters.
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`43.
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`The 2020 Final Rule will also injure the aesthetic, recreational, and financial
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`interests of PRK’s individual members who live and/or recreate in, on, or in close proximity to
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`waterways affected by the rule, regularly visit and use such waterways for aesthetic and
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`recreational purposes, are concerned that they will likely be exposed to and adversely affected by
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`increases in pollutant discharges resulting from the 2020 Final Rule’s removal of CWA
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`protection from these waterways, and would ordinarily have standing to sue in their own right.
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`Case 1:20-cv-01734-KBJ Docume