Case 1:19-cv-00988-RB-SCY Document 1 Filed 10/22/19 Page 1 of 24
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`Case No. ____________________
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`COMPLAINT
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW MEXICO
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`NEW MEXICO CATTLE GROWERS’
`ASSOCIATION,
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`Plaintiff,
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`v.
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY; ANDREW
`WHEELER, in his official capacity as
`Administrator of the Environmental
`Protection Agency; UNITED STATES
`ARMY CORPS OF ENGINEERS; and R.D.
`JAMES, in his official capacity as Assistant
`Secretary for Civil Works, Department of the
`Army,
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`Defendants.
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`INTRODUCTION
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`1.
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`This lawsuit is about the proper interpretation of the term “navigable waters” in the
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`Clean Water Act, 33 U.S.C. §§ 1362(12) and 1362(7). The Clean Water Act imposes severe
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`criminal penalties for unpermitted discharges to “navigable waters.” Permitting is onerous and
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`expensive, costing years of time and hundreds of thousands of dollars on average. What “waters”
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`are “navigable” is thus a major question. In 1986, the Environmental Protection Agency (EPA)
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`and Army Corps of Engineers (Army) adopted regulations (the 1986 Regulations) that interpreted
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`the term “navigable waters” broadly to include extensive non-navigable waterbodies and features
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`upstream of and even isolated from navigable-in-fact rivers and lakes. In 2015, the EPA and the
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`Army replaced the 1986 Regulations with a new regulation (the 2015 Navigable Waters
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`Definition) that reinterpreted “navigable waters” to include some but not all of the non-navigable
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`water features included in the 1986 Regulations. On October 22, 2019, the EPA and the Army
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`published a final rule (the Repeal and Recodify Rule) repealing the 2015 Navigable Waters
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`Definition and purporting to readopt the 1986 Regulations, along with related guidance
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`memoranda.
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`2.
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`Plaintiff’s members own or operate real property with aquatic features in New
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`Mexico, and are subject to EPA and Army permitting and enforcement under the 1986 Regulations
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`and related guidance. Plaintiff challenges several provisions of the 1986 Regulations and related
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`guidance, as either exceeding the agencies’ statutory authority under the Clean Water Act and the
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`Congressional Review Act, or Congress’ authority under the Commerce Clause, the Due Process
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`Clause, the Non-Delegation Doctrine, and the Tenth Amendment. Plaintiff asks this Court to
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`declare that several provisions of the Clean Water Act, the 1986 Regulations, and related guidance
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`are statutorily and constitutionally invalid, and to enjoin their enforcement.
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`JURISDICTION AND VENUE
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`3.
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`Jurisdiction is founded upon 28 U.S.C. § 1331 (federal question); § 1346(a)(2)
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`(civil action against the United States); § 2201 (authorizing declaratory relief); § 2202 (authorizing
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`injunctive relief and any other “necessary and proper” relief); and 5 U.S.C. § 702 (judicial review
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`of agency action under the Administrative Procedure Act).
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`4.
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`5.
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`6.
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`Plaintiff has exhausted all administrative remedies.
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`This action is timely. 28 U.S.C. § 2401(a).
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`The challenged rule is final agency action, ripe for judicial review. 5 U.S.C. § 704.
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`7.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(e)(2), because
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`Plaintiff’s members reside in this District. See also 5 U.S.C. § 703 (venue for actions under the
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`Administrative Procedure Act generally proper in “a court of competent jurisdiction”).
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`PARTIES
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`PLAINTIFF
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`8.
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`The New Mexico Cattle Growers’ Association (Cattle Growers’) is a non-profit
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`organization dedicated to advocating on behalf of its members on numerous issues relating to
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`regulation under the Clean Water Act. Cattle Growers’ devotes substantial resources to activities
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`that seek to ensure that Clean Water Act regulation does not unreasonably impair the cattle
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`industry. Cattle Growers’ lobbies on Clean Water Act issues, publishes information on related
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`issues for its members, performs research pertaining to Clean Water Act regulation, and submits
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`comments to government agencies addressing concerns about how regulations under the Act affect
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`its members. Cattle Growers’ represents roughly 1,400 cattlemen and landowners throughout the
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`State of New Mexico and many other states, many of whom are subject to the Clean Water Act
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`under the 1986 Regulations and related guidance based on the presence of intermittent and
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`ephemeral tributaries on their properties, as well as wetlands and other stationary water features
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`regulated by the 1986 Regulations and related guidance. On behalf of its members, Cattle Growers’
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`submitted comments objecting to the readoption of the 1986 Regulations and related guidance in
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`the then-proposed Repeal and Recodify Rule.
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`DEFENDANTS
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`9.
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`The United States Environmental Protection Agency (EPA) is a cabinet agency and
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`has enforcement responsibility for the Clean Water Act under the 1986 Regulations. The EPA
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`jointly issued the regulations challenged in this action.
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`10.
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`Andrew Wheeler is the Administrator of the EPA. He signed the Repeal and
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`Recodify Rule on behalf of EPA on September 12, 2019.
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`11.
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`The United States Army Corps of Engineers (Army) is a branch of the Department
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`of the Army and has enforcement responsibility for the Clean Water Act under the 1986
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`Regulations. The Army jointly issued the regulations challenged in this action.
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`12.
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`R.D. James is the Assistant Secretary of the Army for Civil Works. He signed the
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`Repeal and Recodify Rule on behalf of the Army on September 5, 2019.
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`LEGAL BACKGROUND
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`13.
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`For over a hundred years, the United States Congress regulated the obstruction of
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`navigation on rivers and lakes through a series of statutes that applied to “navigable waters of the
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`United States.” Rapanos v. United States, 547 U.S. 715, 723 (2006). In a line of cases originating
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`with The Daniel Ball, the Supreme Court of the United States interpreted this term to refer to
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`[t]hose rivers . . . are navigable in fact[, i.e.] . . . when they are used, or are
`susceptible of being used, in their ordinary condition, as highways for commerce
`over which trade and travel are or may be conducted in the customary modes of
`travel on water. And they constitute navigable waters of the United States within
`the meaning of the acts of Congress, in contradistinction from the navigable waters
`of the States, when they form in their ordinary condition by themselves, or by
`uniting with other waters, a continued highway over which commerce is or may be
`carried on with other States or foreign countries in the customary modes in which
`such commerce is conducted by water.
`77 U.S. 557, 563 (1870); see also Rapanos, 547 U.S. at 723.
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`14.
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`The phrase “navigable waters of the United States” was used in Section 10 of the
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`Rivers and Harbors Act when that act was first adopted in 1899, Mar. 3, 1899, c. 425, § 10,
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`30 Stat. 1151, and remains in use today, 33 U.S.C. § 403. Section 10 also prohibits obstructions to
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`“the navigable capacity of the waters of the United States” unless authorized by Congress.
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`33 U.S.C. § 403.
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`THE CLEAN WATER ACT
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`15.
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`In 1972, Congress adopted significant amendments to the Federal Water Pollution
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`Control Act, 33 U.S.C. § 1251, et seq., which has since been called the Clean Water Act (the Act).
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`The Act prohibits unpermitted discharges, defined as additions of pollutants from point sources,
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`to navigable waters. 33 U.S.C. §§ 1311(a), 1362(12). The Act assigns general permitting authority
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`to the EPA, with limited authority assigned to the Army to permit discharges of dredged or fill
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`material. 33 U.S.C. §§ 1342(a)(1), 1344(a). The meaning of the term “navigable waters” is what
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`determines whether any particular action is prohibited unless permitted under the Act. The Act
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`states that “navigable waters means the waters of the United States, including the territorial seas.”
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`33 U.S.C. § 1362(7).
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`16.
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`Nothing in the Act’s definition of “navigable waters” extends the term to non-
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`navigable waters of any sort (e.g., non-navigable tributaries and “adjacent waters”) that are
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`upstream or isolated from navigable-in-fact waters. Nothing in the legislative history of the Act
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`shows that Congress “intended to exert anything more than its commerce power over navigation.”
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`Solid Waste Agency of N. Cook Cty. v. Army Corps of Eng’rs, 531 U.S. 159, 168 n.3 (2001)
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`(SWANCC). In contrast, when Congress has intended to extend its reach to waters that are not
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`navigable, it has said so expressly. For instance, with the Flood Control Act of 1936, Congress
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`claimed jurisdiction over “navigable waters or their tributaries, including watersheds thereof.”
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`33 U.S.C. § 701(a); 49 Stat. 1570.
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`17.
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`To the extent that “navigable waters” under the Act were to be interpreted to include
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`any non-navigable waters upstream of navigable-in-fact waters, the Act provides no intelligible
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`principle for determining which non-navigable waters are included, no factual considerations or
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`criteria for the agencies to determine what waters are navigable, and no policy choices for what
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`non-navigable waters are included.
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`EARLY AGENCY REGULATIONS AND RIVERSIDE BAYVIEW HOMES
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`18.
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`In 1974 the Army adopted regulations defining “navigable waters” under the Act
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`to implement its permitting authority, consistent with the historic definition adopted in The Daniel
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`Ball. 39 Fed. Reg. 12,119 (Apr. 3, 1974); Rapanos, 547 U.S. at 723; SWANCC, 531 U.S. at 169.
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`The U.S. District Court for the District of Columbia ruled that these regulations were inadequate
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`in Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).
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`19.
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`Instead of appealing the trial court ruling, the Army adopted new and significantly
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`broader regulations that added the regulation of non-navigable tributaries and wetlands as
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`“navigable waters” for the first time. See generally, United States v. Riverside Bayview Homes,
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`Inc., 474 U.S. 121, 123-24 (1985).
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`20.
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`In 1985 the Supreme Court decided Riverside Bayview Homes, which holds that the
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`Army regulations then in-effect reasonably interpreted “navigable waters” to include a non-
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`navigable wetland abutting a navigable-in-fact lake. 474 U.S. at 135. The Supreme Court did not
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`consider, in Riverside Bayview Homes, whether “navigable waters” included wetlands that do not
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`abut navigable-in-fact waters. Id. at 124 n.2; id. at 131 n.8.
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`THE 1986 REGULATIONS
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`21.
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`In 1986, the Army adopted new regulations defining “navigable waters” to include:
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`• All navigable-in-fact waters, plus all waters which are, were, or reasonably
`could be used more generally in interstate commerce (33 C.F.R. § 328.3(a)(1)
`(1987)1);
`• The territorial seas (33 C.F.R. § 328.3(a)(6) (1987));
`• All interstate waters including interstate wetlands (“Interstate Waters”)
`(33 C.F.R. § 328.3(a)(2) (1987));
`• All intrastate waters (whether navigable or not) that met various criteria
`(“Covered Intrastate Waters”) (33 C.F.R. § 328.3(a)(3) (1987));
`• All non-navigable tributaries to navigable-in-fact waters, Interstate Waters,
`Covered Intrastate Waters, and Impoundments (“Non-navigable Tributaries”)
`(33 C.F.R. § 328.3(a)(5) (1987));
`• Wetlands adjacent to (meaning “bordering, contiguous, or neighboring”) the
`territorial seas, navigable-in-fact waters, Interstate Waters, Covered Intrastate
`Waters, and their Non-navigable Tributaries (“Adjacent Wetlands”) (33 C.F.R.
`§§ 328.3(a)(7), 328.3(c) (1987)); and
`impoundments of all other waters covered by
`• All
`(“Impoundments”) (33 C.F.R. § 328.3(a)(4) (1987)).
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`the definition
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`33 C.F.R. § 328.3(a) (1987); 51 Fed. Reg. 41,206, 41,250-51 (Nov. 13, 1986) (the “1986
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`Regulations”).
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`22. When it adopted the 1986 Regulations, the Army also adopted the position that
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`“navigable waters” included all waters (1) used to irrigate crops sold in interstate commerce,
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`(2) served as habitat for birds protected by the Migratory Bird Treaty Act, (3) served as habitat for
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`endangered species, or (4) “which are or would be used as habitat by migratory birds which cross
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`1 The EPA adopted identical regulations in 1988, which are included in Plaintiff’s definition of the
`1986 Regulations. For ease of reference, the Army’s regulations are cited throughout. From the
`1986 Regulations forward, both EPA and the Army’s regulations are identical in relevant part.
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`state lines.” 51 Fed. Reg. 41,217 (Nov. 13, 1986). The last of these provisions was known as the
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`Migratory Bird Rule.
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`SWANCC AND RAPANOS
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`23.
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`The 1986 Regulations were the subject of two adverse Supreme Court decisions. In
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`SWANCC, the Supreme Court invalidated the Migratory Bird Rule as beyond the scope of
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`“navigable waters” under the Act. SWANCC narrowed Riverside Bayview Homes by emphasizing
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`that the word “navigable” in the text of the Act demonstrates that Congress’ intent was focused on
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`its “traditional jurisdiction over waters that were . . . navigable in fact.” 531 U.S. at 172. In
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`SWANCC the Court further emphasized the dual purposes of the Act, with federalism and local
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`control of land use and water allocation equal to the federal policy of water quality protection, and
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`that the Clean Water Act lacks the necessary “clear statement” to indicate any congressional intent
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`to interfere in traditionally local functions. Id. at 172-74. SWANCC also posits that the Army’s
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`original 1974 regulations, defining “navigable waters” consistent with the meaning set forth in The
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`Daniel Ball, may have been correct. 531 U.S. at 168, id. at 168 n.3.
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`24.
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`Then in a fractured opinion in Rapanos, the Supreme Court invalidated the non-
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`navigable Tributary and Adjacent Wetlands provisions of the 1986 Regulations, also as beyond
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`the scope of the statutory term “navigable waters.”
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`25.
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`The issue in Rapanos was how to interpret the Clean Water Act’s term “navigable
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`waters” in the context of non-navigable tributaries to navigable-in-fact waterways, and wetlands
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`that do not physically abut navigable-in-fact waterways. 547 U.S. at 728, id. at 759 (Kennedy, J.,
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`concurring). The judgment of the Court in Rapanos was to remand the case because the lower
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`courts had not properly interpreted that term. Id. at 757. The five Justices who supported the
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`judgment arrived at it by two different interpretations of the term “navigable waters.”
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`26.
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`The Rapanos plurality determined that the language, structure, and purpose of the
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`Clean Water Act all limited federal authority to “relatively permanent, standing or continuously
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`flowing bodies of water” commonly recognized as “streams, oceans, rivers and lakes” connected
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`to traditional navigable waters. 547 U.S. at 739. The plurality also limited federal regulation of
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`wetlands to those physically abutting these waterbodies, such that they have an immediate surface
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`water connection where the wetland and water body are “indistinguishable.” Id. at 755.
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`27.
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`Justice Kennedy joined the plurality in the judgment. But he proposed a broader
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`interpretation of “navigable waters” than the plurality: the “significant nexus” test. Id. at 759
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`(Kennedy, J., concurring). Under this view, the federal government could regulate a non-abutting
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`wetland only if it significantly affects the physical, chemical, and biological integrity of a
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`navigable-in-fact waterway. Id. at 779 (Kennedy, J., concurring).
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`2008 POST-RAPANOS GUIDANCE
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`28.
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`Following Rapanos, the EPA and the Army jointly adopted an informal guidance
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`document (the 2008 Post-Rapanos Guidance) which purported to apply the Rapanos decision to
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`the 1986 Regulations.
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`29.
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`The 2008 Post-Rapanos Guidance is a “rule” within the ambit of the Congressional
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`Review Act, 5 U.S.C. § 801, et seq., but was not and has never been submitted to Congress as the
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`Congressional Review Act requires.
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`30.
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`The Post-Rapanos Guidance asserts that the Army and EPA may claim jurisdiction
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`under either the Rapanos plurality or concurrence.
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`31.
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`The Guidance also asserts that the plurality standard is satisfied by tributaries that
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`flow as little as 90 days per year, and broadly defines “adjacent” for the purpose of regulating
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`wetlands.
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`THE 2015 NAVIGABLE WATERS DEFINITION
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`32.
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`In 2015, the EPA and the Army adopted a new regulation (the 2015 Navigable
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`Waters Definition) redefining “navigable waters.” 33 C.F.R. § 328.3 (2016); 80 Fed. Reg. 37,054
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`(June 29, 2015). The 2015 Navigable Waters Definition superseded the 1986 Regulations and the
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`Post-Rapanos Guidance.
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`33.
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`On August 21, 2019, the U.S. District Court for the Southern District of Georgia
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`ruled on summary judgement that the 2015 Navigable Waters Definition violates the Clean Water
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`Act. Georgia v. Wheeler, No. 2:15-cv-00079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019).
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`34.
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`On October 22, 2019, partially in response to the decision of the Southern District
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`of Georgia, Defendants published the Repeal and Recodify Rule in the Federal Register, which
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`rescinded the 2015 Navigable Waters Definition, and readopted the 1986 Regulations and related
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`guidance including the Post-Rapanos Guidance.
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`THE REPEAL AND RECODIFY RULE
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`35.
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`On July 27, 2017, the EPA and the Army proposed a regulation which would repeal
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`the 2015 Navigable Waters Definition and recodify the 1986 Regulations (the Repeal and Recodify
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`Rule) (“If this proposal is finalized, the regulations defining the scope of federal Clean Water Act
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`(CWA) jurisdiction would be those portions of the CFR as they existed before the amendments
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`promulgated in the 2015 Rule.”). 83 Fed. Reg. 32,227 (July 12, 2018).
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`36.
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`The agencies proposed to readopt the 1986 Regulations and related guidance
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`documents. But they refused to consider public comment on the substance of the 1986 Regulations
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`and related guidance. 82 Fed. Reg. 34,903 (July 27, 2017).
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`37.
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`The refusal to take comment on the substance of the 1986 Regulations, Post-
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`Rapanos Guidance, and other guidance documents violated the EPA and the Army’s obligations
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`for notice and comment rulemaking under the Administrative Procedure Act, 5 U.S.C. § 553(c).
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`38.
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`On October 22, 2019, the EPA and the Army published the final Repeal and
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`Recodify Rule in the Federal Register, repealing the 2015 Navigable Waters Definition and
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`readopting the 1986 Regulations and related guidance.
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`39.
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`The 1986 Regulations and related guidance readopted under the proposed Repeal
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`and Recodify Rule were not and have never been submitted to Congress for review, in violation
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`of the Congressional Review Act, 5 U.S.C. § 801, et seq.
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`40.
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`Several provisions of the 1986 Regulations, as well as the related guidance, exceed
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`the scope of the Clean Water Act, in that both the Migratory Bird Rule (adopted as guidance at the
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`time the 1986 Regulations were adopted) and the Tributary and Adjacent Wetland rules, have all
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`been declared invalid by the Supreme Court.
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`41.
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`The inclusion in the 1986 Regulations of all interstate waters and of many intrastate
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`waters that are not navigable-in-fact also exceeds the agencies’ authority under the Act.
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`DECLARATORY RELIEF ALLEGATIONS
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`The preceding paragraphs are incorporated herein.
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`Plaintiff contends that the 1986 Regulations and related guidance, as readopted by
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`42.
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`43.
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`the Repeal and Recodify Rule, have been expressly invalidated in part by the Supreme Court and
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`are otherwise illegal. Defendants claim that the 1986 Regulations and related guidance are legally
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`valid.
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`44.
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`No factual development is necessary to resolve this case as Plaintiff raises a pure
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`legal challenge to the 1986 Regulations and related guidance as they are readopted by the Repeal
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`and Recodify Rule, on their face.
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`45.
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`Plaintiff’s members are injured by the 1986 Regulations and related guidance as
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`readopted by the Repeal and Recodify Rule, because they hold beneficial interests in property that
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`is or will be subject to increased federal regulatory control under the 1986 Regulations and
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`guidance. This will require them to seek federal permit approval at significant cost to use their
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`property for its intended purpose. Or, it will require Plaintiff’s members to seek a determination
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`from the Army or a private party expert whether the 1986 Regulations and related guidance apply
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`to them. See Hawkes Co. v. Army Corps of Engineers, 782 F.3d 994, 1003 (8th Cir. 2015) (Kelly,
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`J., concurring) (“This is a unique aspect of the CWA; most laws do not require the hiring of expert
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`consultants to determine if they even apply to you or your property.”), aff’d, 136 S. Ct. 1807
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`(2016).
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`46.
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`Accordingly, an actual and substantial controversy exists between Plaintiff and
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`Plaintiff’s members and Defendants as to the parties’ respective legal rights and responsibilities.
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`A judicial determination of the parties’ rights and responsibilities arising from this actual
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`controversy is necessary and appropriate at this time.
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`INJUNCTIVE RELIEF ALLEGATIONS
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`47.
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`The preceding paragraphs are incorporated herein.
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`48.
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`Because of the 1986 Regulations’ overbroad and illegal definition of the “navigable
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`waters” under the Clean Water Act, Plaintiff’s members will now be required to obtain federal
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`approval of new and ongoing land-use projects at a cost of tens to hundreds of thousands of dollars
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`and months, if not years, of delay.
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`49.
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`Plaintiff’s members will continue to be injured by the Army and EPA’s illegal
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`interpretation of “navigable waters” under the Clean Water Act.
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`50.
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`Enjoining the enforcement of the Repeal and Recodify Rule’s readoption of the
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`1986 Regulations and related guidance will redress these harms.
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`51.
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`Plaintiff’s members have no plain, speedy, and adequate remedy at law and, absent
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`judicial intervention, Plaintiff’s members will suffer irreparable injury.
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`52.
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`If not enjoined, the Army and EPA will enforce the 1986 Regulations and related
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`guidance, as readopted by the Repeal and Recodify Rule, against Plaintiff’s members throughout
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`New Mexico.
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`53.
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`54.
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`FIRST CLAIM FOR RELIEF
`1986 REGULATIONS AS READOPTED
`BY THE REPEAL AND RECODIFY RULE:
`ULTRA VIRES REGULATION OF ALL “TRIBUTARIES”
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`The preceding paragraphs are incorporated herein.
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`Under the Clean Water Act, the Army and EPA may regulate “navigable waters.”
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`See 33 U.S.C. § 1344(a).
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`55.
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`The 1986 Regulations define “navigable waters” to include all non-navigable
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`tributaries. 33 C.F.R. § 328.3(a)(5) (2014).
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`56.
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`In Rapanos a majority of the Supreme Court held that this provision of the 1986
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`Regulations is invalid. 547 U.S. at 725 (rejecting the regulation of tributaries based on an ordinary
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`high water mark because “[t]his interpretation extended ‘the waters of the United States’ to
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`virtually any land feature over which rainwater or drainage passes and leaves a visible mark—
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`even if only ‘the presence of litter and debris’”). See also id. at 781 (Kennedy, J., concurring)
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`(rejecting categorical regulation of tributaries with an ordinary high water mark because “the
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`breadth of this standard . . . [would] leave wide room for regulation of drains, ditches and streams
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`remote from any navigable-in-fact water and carrying only minor water volumes toward it”).
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`57.
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`Categorical regulation of all tributaries exceeds the scope of the Clean Water Act
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`as interpreted by the Supreme Court. Therefore, the 1986 Regulations, as readopted by the Repeal
`
`and Recodify Rule, are arbitrary and capricious, and contrary to law, in violation of the
`
`Administrative Procedure Act. See 5 U.S.C. § 706(2)(A).
`
`SECOND CLAIM FOR RELIEF
`1986 REGULATIONS AS READOPTED
`BY THE REPEAL AND RECODIFY RULE:
`ULTRA VIRES REGULATION OF ALL WATERS
`“ADJACENT” TO ALL “TRIBUTARIES”
`
`The preceding paragraphs are incorporated herein.
`
`It is axiomatic that if the regulation of all tributaries is invalid then the categorical
`
`58.
`
`59.
`
`regulation of all waters adjacent to such tributaries is also invalid. See Rapanos, 547 U.S. at 781-
`
`82 (Kennedy, J., concurring) (Regulation of all tributaries “precludes its adoption as the
`
`determinative measure of whether adjacent wetlands are likely to play an important role in the
`
`integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in
`
`many cases wetlands adjacent to tributaries covered by this standard might appear little more
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`related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act’s scope
`
`in SWANCC.”). For its part the Rapanos plurality opined that wetlands may only be regulated
`
`under the Clean Water Act if they are so closely connected to regulated tributaries that it can’t be
`
`discerned where one ends and the other begins. 547 U.S. at 755.
`
`60.
`
`The 1986 Regulations interpret the Act as including all wetlands broadly defined
`
`to be adjacent to any tributary. 33 C.F.R. § 328.3(a)(7) (2014). The Supreme Court invalidated this
`
`very provision of the 1986 Regulations in Rapanos.
`
`61.
`
`Categorical regulation of all wetlands adjacent to all tributaries exceeds the scope
`
`of the Clean Water Act as interpreted by the Supreme Court. Therefore, the 1986 Regulations, as
`
`readopted by the Repeal and Recodify Rule, are arbitrary and capricious, and contrary to law, in
`
`violation of the Administrative Procedure Act. See 5 U.S.C. § 706(2)(A).
`
`THIRD CLAIM FOR RELIEF
`1986 REGULATIONS AS READOPTED
`BY THE REPEAL AND RECODIFY RULE:
`ULTRA VIRES REGULATION OF ALL INTERSTATE WATERS
`
`The preceding paragraphs are incorporated herein.
`
`The 1986 Regulations, as readopted by the Repeal and Recodify Rule, purport to
`
`62.
`
`63.
`
`regulate all interstate waters regardless of navigability or connection to navigable-in-fact waters.
`
`33 C.F.R. § 328.3(a)(2) (2014).
`
`64.
`
`Such waters necessarily include isolated waters or waters that the Supreme Court
`
`determined would have no connection or effect on navigable-in-fact waters and could not be
`
`regulated under the Clean Water Act. See SWANCC, 531 U.S. at 171-72 (“We cannot agree that
`
`Congress’ separate definitional use of the phrase ‘waters of the United States’ constitutes a basis
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`for reading the term ‘navigable waters’ out of the statute. We said in Riverside Bayview Homes
`
`that the word ‘navigable’ in the statute was of ‘limited import’ 474 U.S. at 133, 106 S. Ct. 455,
`
`and went on to hold that § 404(a) extended to nonnavigable wetlands adjacent to open waters. But
`
`it is one thing to give a word limited effect and quite another to give it no effect whatever. The
`
`term ‘navigable’ has at least the import of showing us what Congress had in mind as its authority
`
`for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in
`
`fact or which could reasonably be so made.”).
`
`65.
`
`Categorical regulation of all interstate waters exceeds the scope of the Clean Water
`
`Act as interpreted by the Supreme Court. Therefore, the 1986 Regulations, as readopted by the
`
`Repeal and Recodify Rule, are arbitrary and capricious, and contrary to law, in violation of the
`
`Administrative Procedure Act. See 5 U.S.C. § 706(2)(A).
`
`FOURTH CLAIM FOR RELIEF
`1986 REGULATIONS AS READOPTED
`BY THE REPEAL AND RECODIFY RULE:
`ULTRA VIRES REGULATION OF ISOLATED WATERS
`
`The preceding paragraphs are incorporated herein.
`
`The 1986 Regulations include a wide variety of intrastate waters with potential
`
`66.
`
`67.
`
`effects on interstate commerce, but which are not used to transport interstate commerce. 33 C.F.R.
`
`§ 328.3(a)(1) (2014). The 1986 Regulations also purport to include waters used in interstate
`
`commerce which are not themselves used to transport interstate commerce. 33 C.F.R.
`
`§ 328.3(a)(1) (2014).
`
`68.
`
`These waters include those which the Army treated as regulated under the 1986
`
`Regulations because they provide habitat for migratory birds, as well as other waters without
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`historic, present, or reasonable future use in transporting interstate commerce. These isolated
`
`waters, particularly those subject to the Migratory Bird Rule, are precisely the waters that the
`
`Supreme Court held are not within the term “navigable waters” in the Act, in SWANCC.
`
`69.
`
`The regulation of isolated waterbodies exceeds the scope of the Clean Water Act
`
`as interpreted by the Supreme Court in SWANCC. Therefore, the 1986 Regulations, as readopted
`
`by the Repeal and Recodify Rule, are arbitrary and capricious, and contrary to law, in violation of
`
`the Administrative Procedure Act. See 5 U.S.C. § 706(2)(A).
`
`FIFTH CLAIM FOR RELIEF
`PLAINTIFF AND ITS MEMBERS WERE DENIED
`THEIR RIGHT TO NOTICE AND COMMENT ON THE 1986
`REGULATIONS AS READOPTED BY THE REPEAL AND RECODIFY RULE
`
`The preceding paragraphs are incorporated herein.
`
`70.
`
`71.
`
`Federal agencies must conduct rulemaking in accord with the Administrative
`
`Procedure Act which requires public notice of substantive rule changes and an opportunity for
`
`public comment on those changes. 5 U.S.C. § 553(b), (c).
`
`72.
`
`Defendants refused to take comment on the proposed readoption of the 1986
`
`Regulations and related guidance during the comment periods on the proposed Repeal and
`
`Recodify Rule.
`
`73.
`
`If Defendants had accepted comments on the readoption of the 1986 Regulations
`
`and related guidance, Plaintiff would have submitted comments objecting to the 1986 Regulations,
`
`including those regulations’ inclusion of all interstate waters, intrastate waters, non-navigable
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`tributaries to navigable-in-fact waters, and adjacent wetlands. Plaintiff would also have objected
`
`to the readoption of guidance related to the 1986 Regulations for the reasons stated herein.2
`
`74.
`
`Plaintiff was deprived of notice and an opportunity to comment on the proposed
`
`readoption of the 1986 Regulations and related guidance. Therefore, the 1986 Regulations and
`
`related guidance, as readopted by the Repeal and Recodify Rule, are invalid and should be set
`
`aside for procedural inadequacy under the Administrative Procedure Act. See 5 U.S.C. § 706(2).
`
`SIXTH CLAIM FOR RELIEF
`1986 REGULATIONS, AS READOPTED BY THE
`REPEAL AND RECODIFY RULE VIOLATE THE CONSTITUTION:
`IMPINGEMENT ON TRADITIONAL STATE AUTHORITY
`
`The preceding paragraphs are incorporated herein.
`
`75.
`
`76.
`
`In SWANCC, the Supreme Court held that federal regulation of small ponds and
`
`mudflats “would result in a significant impingement of the States’ traditional and primary power
`
`over land and water use.” 531 U.S. at 174.
`
`77.
`
`The 1986 Regulations extend federal jurisdiction so far into local land and water
`
`resources that it necessarily undermines State power, in violation of the Tenth Amendment. The
`
`Tenth Amendment provides that “[t]he powers not delegated to the United States by the
`
`Constitution . . . are reserved to the States respectively, or to the people.” U.S. Const. amend. X.
`
`Congress expressly acknowledged the prerogative of the States to regulate local land and water
`
`use in the Clean Water Act: “It is the policy of the Congress to recognize, preserve and protect the
`
`