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Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 1 of 88
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`Deanna K. Tanner, Esq. (Pa. Bar No. 60258)
`Kacy C. Manahan, Esq. (N.J. Bar No. 275122018; Pa. Limited License)
`Pro Hac Vice Admission Pending
`Delaware Riverkeeper Network
`925 Canal Street
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`7th Floor, Suite 3701
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`Bristol, PA 19007
`215-369-1188 (Tel)
`215-369-1181 (Fax)
`deanna@delawareriverkeeper.org
`kacy@delawareriverkeeper.org
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`U.S. DISTRICT COURT FOR THE
`EASTERN DISTRICT OF PENNSYLVANIA
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`)
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`DELAWARE RIVERKEEPER
`)
`NETWORK, and the DELAWARE
`RIVERKEEPER, MAYA VAN ROSSUM, )
`)
`)
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`UNITED STATES ENVIRONMENTAL )
`PROTECTION AGENCY,
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`ANDREW R. WHEELER,
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`in his official capacity as Administrator
`)
`of the United States Environmental
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`Protection Agency,
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`Plaintiffs,
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`v.
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`COMPLAINT FOR
`DECLARATORY
`JUDGMENT
`
`
`
`
`CASE NO.2:20-CV-3412
`
`
`
`
`Defendants.
`
`--------------------------------------------------
`
`
`INTRODUCTION
`
`1.
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`Plaintiffs Delaware Riverkeeper Network, and the Delaware
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`Riverkeeper, Maya van Rossum, (collectively, “Plaintiffs”) challenge the United
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`States Environmental Protection Agency’s (“EPA’s”) and the Administrator of
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`Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 2 of 88
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`the EPA, Andrew R. Wheeler’s (“Administrator’s”) promulgation of the Clean
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`Water Act Section 401 Certification Rule (“Certification Rule”), 85 Fed. Reg.
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`42,210 (July 13, 2020) (to be codified at 40 C.F.R. pt. 121). The Certification
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`Rule is an overhaul of 40 C.F.R. Part 121, which contains EPA’s regulations
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`interpreting Section 401 of the Clean Water Act (“Section 401”), 33 U.S.C.
`
`§ 1341.
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`2.
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`The Certification Rule eviscerates the ability of states, tribes, and
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`interstate authorities to protect water quality from Federally-approved projects.
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`This dramatic change in policy after nearly fifty years of cooperative federalism
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`was spurred by President Trump’s desire to mow down regulatory obstacles to
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`fossil fuel extraction, transportation, and export. In this administration’s mad
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`rush
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`to seize
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`the “tremendous economic opportunities” of fossil fuel
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`development and “promote private
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`investment
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`in
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`the Nation’s energy
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`infrastructure,” 1 Defendants have taken a reckless approach to rulemaking,
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`resulting in a legally indefensible rule.
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`3.
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`The Certification Rule is an interpretive rule promulgated outside
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`of Defendants’ Congressionally-delegated authority. Rather than enacting
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`regulations “necessary to carry out [their] functions under” the Clean Water Act,
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`33 U.S.C. § 1361, Defendants attempt to regulate the functions of states, tribes,
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`
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`1 Exec. Order No. 13868, 84 Fed. Reg. 15,495 (Apr. 15, 2019).
`2
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`interstate agencies, and Federal agencies and
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`the role each playa
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`in
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`administering the Section 401 program.
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`4.
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`Throughout the rulemaking process, Defendants failed to analyze or
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`even consider the on-the-ground impact the Certification Rule would have on
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`water quality. This flies directly in the face of the Clean Water Act’s objective,
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`which is to “restore and maintain the chemical, physical, and biological integrity
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`of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`5.
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`Defendants base the purported need to regulate on a paucity of data
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`describing how Section 401 certification requests are handled nationwide,
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`instead relying on a few high-profile projects, which ultimately would not have
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`been certified even if the Certification Rule had been in effect during their
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`review.
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`6.
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`The Certification Rule narrows the scope of the Section 401
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`program based on new substantive definitions for terms that are either already
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`defined in the Clean Water Act, or have been defined pursuant to the Supreme
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`Court’s interpretation of the unambiguous text of the statute.
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`7.
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`In fact, the scope is so narrowed, that it renders Section 401
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`superfluous because it covers the same regulatory ground as the National
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`Pollutant Discharge Elimination System (“NPDES”) program in Section 402.
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`See 33 U.S.C. § 1342.
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`8.
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`Defendants also fail to explain how a new regime likely to result in
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`inadequate certification requests and increased certification denials will solve
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`the problem of project proponents experiencing delays in obtaining Section 401
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`certificates.
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`9.
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`The Certification Rule imposes new substantive requirements
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`beyond what is required by the statute to define what constitutes an adequate
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`action on a certification request. These substantive requirements are then used
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`in the Certification Rule to justify a Federal agency’s finding that the certifying
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`authority “failed to act” within the reasonable period of time, thereby waiving
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`Section 401 certification authority. This setup allows Federal agencies to review
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`certificates and conditions prior to adopting them as a part of the Federal license
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`or permit, contrary to the requirements of the Clean Water Act.
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`10. Defendants also deprive certifying authorities of their jurisdiction
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`to enforce Section 401 certifications and conditions, vesting that power solely
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`in the Federal agency that issued the license or permit.
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`11. Finally, the Certification Rule strips neighboring jurisdictions of a
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`protection provided by Section 401—the requirement that the Administrator
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`determine whether a project subject to Section 401 may affect the water quality
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`in a neighboring jurisdiction. This action is now discretionary under the
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`Certification Rule, and the rule erroneously assumes that a certification is a
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`precondition to the imposition of conditions to protect a neighboring
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`jurisdiction’s water quality on a Federal license or permit.
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`12. Defendants’ Certification Rule violates
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`the Administrative
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`Procedure Act (“APA”), 5 U.S.C. § 706, the Clean Water Act, 33 U.S.C.
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`§§ 1251–1388, and the Tenth Amendment of the United States Constitution,
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`U.S. Const., amend X. For these reasons, Plaintiffs seek an order from this Court
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`vacating and setting aside the Certification Rule.
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`PARTIES
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`13. Plaintiff Delaware Riverkeeper Network (“DRN”) is a Pennsylvania
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`non-profit organization with its principal place of business at 925 Canal Street,
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`7th Floor, Suite 3701, Bristol, Pennsylvania. It was established in 1988 and has
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`more than 25,000 members. DRN’s mission is to protect and restore the
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`Delaware River, and its tributaries, habitats and resources. To achieve these
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`goals, DRN organizes and implements stream bank restorations, a volunteer
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`monitoring program, educational programs, environmental advocacy initiatives,
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`recreational activities, and environmental law enforcement efforts throughout
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`the entire Delaware River watershed—an area which includes portions of
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`Pennsylvania, New York, New Jersey and Delaware—and on the national level
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`when necessary to achieve its mission. DRN goes to court when necessary to
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`ensure enforcement of environmental and related laws. DRN has been highly
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`active in litigation regarding fracked gas infrastructure, including but not limited
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`to wellpad siting, compressor stations, liquefied natural gas (“LNG”) export
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`facilities and pipelines, whether FERC-licensed or state-regulated. DRN has
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`challenged various approvals over interstate natural gas pipelines and been
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`involved in other litigation to ensure protection of water quality and the local
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`environment when natural gas and other pipelines are proposed. DRN staff and
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`its network of volunteers also documents violations and other problems along
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`the path of pipeline construction, and brings such issues to the attention of
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`relevant government agencies. DRN also commissions experts to analyze and
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`report on issues related to fracked gas development, including the economic
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`harms to the Delaware River basin from such development, the environmental
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`and health impacts of fracked gas development, the economic and environmental
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`unsustainability of fracked gas development, and other related issues.
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`14. DRN members include individuals concerned about the protection
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`and restoration of the Delaware River, and its tributaries, habitats and resources.
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`DRN’s members are dedicated to preserving and improving the cultural, historic
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`and environmental resources of the Delaware River watershed.
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`15. The laws of Pennsylvania and DRN’s articles of incorporation,
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`bylaws, and Board of Directors authorize it to bring this action on behalf of itself
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`and its members.
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`16. Plaintiff the Delaware Riverkeeper, Maya van Rossum, is a full-
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`time privately funded ombudsman responsible for the protection of the
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`waterways in the Delaware River Watershed. Maya van Rossum advocates for
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`the protection and restoration of the cultural, historical, ecological, recreational,
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`commercial and aesthetic qualities of the Delaware River and its tributaries,
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`habitats and resources. As the Delaware Riverkeeper, Ms. van Rossum serves
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`on a number of the region’s water quality committees, including the Delaware
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`River Basin Commission’s Water Quality Advisory Committee, and on New
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`Jersey’s Stormwater Focus Group. Ms. van Rossum also serves as a member of
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`the Area Plan Committee and the Area Maritime Security Committee, both of
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`which are committees of the United States Coast Guard, the Philadelphia Group.
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`17. Maya van Rossum regularly visits the Delaware River for personal
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`and professional reasons, and her use and enjoyment of the River will be
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`significantly diminished by a reduction in regulatory oversight of Federal
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`projects.
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`18. The Delaware River is the longest undammed river east of the
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`Mississippi. It flows for 330 miles from New York State, through Pennsylvania,
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`New Jersey, and Delaware, into the Atlantic Ocean. The Delaware River
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`watershed is 13,539 square miles and supplies drinking water to approximately
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`five percent of the nation’s population. The Delaware River region has been
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`subjected to the effects of the shale gas fracking boom, particularly through
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`expansion of the natural gas pipeline network from the Marcellus Shale to the
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`densely populated areas within the watershed and beyond. Environmental
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`impacts of pipeline construction include land cover change, deforestation,
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`sedimentation and erosion, water quality degradation, stream degradation,
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`wetland loss, and air emissions. The Delaware River estuary, home to the
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`federally-listed endangered Atlantic sturgeon, is also vulnerable to the siting of
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`natural gas export facilities—in fact, an export facility in Gibbstown, New
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`Jersey is currently moving through the federal permitting process.
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`19. DRN’s thousands of members, and Maya van Rossum, all enjoy the
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`water quality and bucolic surroundings of the Delaware River, its tributaries and
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`its watershed. DRN members boat, fish, canoe, bird watch, hike and participate
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`in other recreational activities throughout the watershed. DRN’s members will
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`be harmed by the Rule’s infringement on state authority to protect the Delaware
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`River and its supporting environment. The Certification Rule is a deregulatory
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`action that circumscribes the ability of the Delaware River watershed states
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`(New York, New Jersey, Pennsylvania, and Delaware) to protect their waters
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`beyond point source discharge regulations, creates a mechanism that allows
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`Federal agency to deem a certification and/or its conditions “waived,” deprives
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`these states of their authority to enforce certification conditions, permits the
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`EPA to decline to analyze the effects of a discharge on a neighboring state, and
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`limits a neighboring state’s authority to impose additional conditions on a
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`Federal license or permit. Because the Certification Rule strips the ability of
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`states to comprehensively protect water resources from Federally licensed or
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`permitted activities, the water resources of the Delaware River watershed are
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`vulnerable to degradation. In addition, Plaintiffs’ procedural interests are
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`harmed by the Certification Rule because it limits the scope of a state’s review,
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`and thus plaintiffs will be deprived of information they otherwise would have
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`received about the impact of Federally licensed or permitted activities.
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`20. Defendant EPA is an agency of the United States government
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`created in 1970 in part to “enhance and preserve the quality and value of the
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`Nation’s waters.” EPA Order 1110.2 (Dec. 4, 1970). The mission of EPA is to
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`protect human health and the environment by ensuring that: Americans have
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`clean air, land, and water; national efforts to reduce environmental risks are
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`based on the best available scientific information; Federal laws protecting
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`human health and the environment are administered and enforced fairly,
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`effectively, and as Congress intended; and environmental stewardship is integral
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`to U.S. policies concerning natural resources, human health, economic growth,
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`energy, transportation, agriculture, industry, and international trade, and these
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`factors are similarly considered in establishing environmental policy. See Our
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`Mission
`
`and What We Do
`
`| About
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`EPA
`
`| US
`
`EPA,
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`https://www.epa.gov/aboutepa/our-mission-and-what-we-do (last visited June
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`11, 2020).
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`21. Defendant Andrew R. Wheeler is the Administrator of EPA.
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`Administrator Wheeler is responsible for the administration, operations, and
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`activities of EPA. In his official capacity, Administrator Wheeler resides in
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`Washington, DC. Administrator Wheeler is being sued in his official capacity.
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`22. Defendant EPA, through its Administrator Defendant Andrew R.
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`Wheeler, is responsible for administering the Clean Water Act. The Certification
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`Rule was issued by EPA and signed by Administrator Wheeler.
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`JURISDICTION AND VENUE
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`23. This Court has subject matter jurisdiction over this action under 28
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`U.S.C. § 1331 (federal question) and 5 U.S.C. §§ 702 and 704. See Nat’l Ass’n
`
`of Mfrs. v. Dept. of Defense, 138 S. Ct. 617, 630 (2018) (finding that a rule
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`promulgated under EPA’s general rulemaking authority, 33 U.S.C. § 1361(a),
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`does not fall within the scope of 33 U.S.C. § 1369(b)(1), which requires judicial
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`review exclusively in the federal courts of appeals).
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`24. The Court may grant declaratory and injunctive relief pursuant to
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`28 U.S.C. §§ 2201 and 2202, as well as 5 U.S.C. § 706.
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`25. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(1)(C)
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`because Defendants are an agency and an officer of the United States and
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`Plaintiffs including certain of DRN’s members reside in this judicial district and
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`will be imminently adversely impacted by the Certification Rule.
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`BACKGROUND
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`The History of Federal Water Pollution Control Evinces a Prominent Role
`for State Authority.
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`26. The first comprehensive Federal law to address the nationwide
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`problem of water pollution was the Federal Water Pollution Control Act
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`(“FWPCA”), Act of June 30, 1948, c. 758, 62 Stat. 1155.
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`27. The precursor to Section 401 first appeared as Section 21(b) of the
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`Water Quality Improvement Act of 1970, Pub. L. No. 91-224, § 21(b), 84 Stat.
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`91, 108 (1970), which amended the FWPCA.
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`28. That section read:
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`Any applicant for a Federal license or permit to conduct
`any activity
`including, but not
`limited
`to,
`the
`construction or operation of facilities, which may result
`in any discharge into the navigable waters of the United
`States, shall provide the licensing or permitting agency
`a certification from the State[2] in which the discharge
`originates or will originate . . . that there is reasonable
`assurance, as determined by the State or interstate
`agency that such activity will be conducted in a manner
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`
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`2 In some circumstances, the certifying authority would be the Secretary of Health
`Education and Welfare, or an interstate water pollution control agency.
`11
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`which will not violate applicable water quality
`standards.
`Id.
`29. The section also provided that if the certifying authority “fails or
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`refuses to act on a request for certification, within a reasonable period of time
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`(which shall not exceed one year) after receipt of such request, the certification
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`requirements of this subsection shall be waived with respect to such Federal
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`application.” Id.
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`The Modern Clean Water Act Envisioned a Comprehensive Water Quality
`Protection Scheme Involving both Federal and State Authority.
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`30.
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`In 1972, Congress substantially amended the FWPCA. Pub L. 92-
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`500, 86 Stat. 816 (1972). These amendments constituted the modern-day Clean
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`Water Act. Congress’ purpose in doing so was to “restore and maintain the
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`chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
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`§ 1251(a).
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`31. Section 301 of the Clean Water Act prohibits “the discharge of any
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`pollutant by any person” “[e]xcept as in compliance with this section and
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`sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title . . . .” 33 U.S.C.
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`§ 1311(a).
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`32.
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`“The term ‘discharge of a pollutant’ and the term ‘discharge of
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`pollutants’ each means (A) any addition of any pollutant to navigable waters
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`12
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`from any point source, (B) any addition of any pollutant to the waters of the
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`contiguous zone or the ocean from any point source other than a vessel or
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`floating craft.” 33 U.S.C. § 1362(12).
`
`33.
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`“The term ‘pollutant’ means dredged spoil, solid waste, incinerator
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`residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
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`biological materials, radioactive materials, heat, wrecked or discarded
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`equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural
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`waste discharged into water.” 33 U.S.C. § 1362(6).
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`34.
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`“Navigable waters” is defined as the “waters of the United States,
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`including the territorial seas.” 33 U.S.C. § 1362(7). “Waters of the United
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`States” is defined in more detail by regulation. See 33 C.F.R. § 328.3.
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`35. A “point source” is “any discernible, confined and discrete
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`conveyance, including but not limited to any pipe, ditch, channel, tunnel,
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`conduit, well, discrete fissure, container, rolling stock, concentrated animal
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`feeding operation, or vessel or other floating craft, from which pollutants are or
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`may be discharged.” 33 U.S.C. § 1362(14).
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`36. Point source discharges are regulated through the Section 402
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`National Pollutant Discharge Elimination System (“NPDES”) permitting
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`program, see 33 U.S.C. § 1342, and the Section 404 dredge and fill permitting
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`program. See 33 U.S.C. § 1344.
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`37. Regarding nonpoint sources of pollution, the Clean Water Act states
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`that “it is the national policy that programs for the control of nonpoint sources
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`of pollution be developed and implemented in an expeditious manner so as to
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`enable the goals of this chapter to be met through the control of both point and
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`nonpoint sources of pollution.” 33 U.S.C. § 1251(a)(7).
`
`38. Within that framework, Congress sought to “recognize, preserve,
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`and protect the primary responsibilities and rights of States to prevent, reduce,
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`and eliminate pollution, to plan the development and use (including restoration,
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`preservation, and enhancement) of land and water resources, and to consult with
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`the Administrator in the exercise of his authority under this chapter.” 33 U.S.C.
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`§ 1251(b).
`
`39. Accordingly, Congress explicitly preserved state authority to
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`regulate more stringently than the EPA in Section 510 of the Clean Water Act:
`
`Except as expressly provided in this chapter, nothing in
`this chapter shall (1) preclude or deny the right of any
`State or political subdivision thereof or interstate
`agency to adopt or enforce (A) any standard or
`limitation respecting discharges of pollutants, or (B)
`any requirement respecting control or abatement of
`pollution; except that if an effluent limitation, or other
`limitation, effluent standard, prohibition, pretreatment
`standard, or standard of performance is in effect under
`this chapter, such State or political subdivision or
`interstate agency may not adopt or enforce any effluent
`limitation, or other
`limitation, effluent standard,
`prohibition, pretreatment standard, or standard of
`performance which is less stringent than the effluent
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`Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 15 of 88
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`limitation, effluent standard,
`limitation, or other
`prohibition, pretreatment standard, or standard of
`performance under this chapter; or (2) be construed as
`impairing or in any manner affecting any right or
`jurisdiction of the States with respect to the waters
`(including boundary waters) of such States.
`33 U.S.C. § 1370.
`
`40. Under § 518(e) of the Clean Water Act, EPA may “treat an Indian
`
`tribe as a state for purposes of” specified provisions of the Clean Water Act,
`
`including Section 401, if such tribe meets certain enumerated standards. 33
`
`U.S.C. § 1377(e).
`
`41. By addressing both point and nonpoint source pollution, and
`
`utilizing the authorities of both the Federal and State governments, “[t]he ‘major
`
`purpose’ of the Amendments was ‘to establish a comprehensive long-range
`
`policy for the elimination of water pollution.’” City of Milwaukee v. Ill. & Mich.,
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`451 U.S. 304, 318 (1981) (quoting S. Rep. No. 92–414, at 95). Thus, “in
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`construing the Act, ‘the guiding star is the intent of Congress to improve and
`
`preserve the quality of the Nation’s waters. All issues must be viewed in the
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`light of that intent.’” Kennecott Copper Corp. v. Envtl. Prot. Agency, 612 F.2d
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`1232, 1236 (10th Cir. 1979) (quoting Am. Petroleum Institute v. Envtl. Prot.
`
`Agency, 540 F.2d 1023, 1028 (10th Cir. 1976)).
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`Section 401 of the Clean Water Act Was Enacted as a Bulwark to Prevent
`Federally-Approved Activities From Degrading Water Qualtiy.
`
`42. Subsection 401(a)(1) of the Clean Water Act requires “[a]ny
`
`applicant for a Federal license or permit to conduct any activity . . . which may
`
`result in any discharge into the navigable waters” to “provide the licensing or
`
`permitting agency a certification from the State [or other certifying authority] in
`
`which the discharge originates or will originate . . . that any such discharge will
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`comply with the applicable provisions of sections [301, 302, 303, 306, and 307]
`
`of this title.” 33 U.S.C. § 1341(a)(1) (emphasis added).
`
`43.
`
`“Discharge” is defined in the Clean Water Act as follows: “The term
`
`‘discharge’ when used without qualification includes a discharge of a pollutant,
`
`and a discharge of pollutants.” 33 U.S.C. § 1362(16) (emphasis added).
`
`44. Certifying authorities must “establish procedures for public notice
`
`in the case of all applications for certifications by it and, to the extent it deems
`
`appropriate, procedures for public hearings in connection with specific
`
`applications.” 33 U.S.C. § 1341(a)(1).
`
`45. Subsection 401(a)(1) provides that if the certifying authority “fails
`
`or refuses to act on a request for certification, within a reasonable period of time
`
`(which shall not exceed one year) after receipt of such request, the certification
`
`requirements of this subsection shall be waived with respect to such Federal
`
`application.” Id.
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`46.
`
`In addition, “[n]o license or permit shall be granted until the
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`certification required by this section has been obtained or has been waived as
`
`provided in the preceding sentence. No license or permit shall be granted if
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`certification has been denied by” the certifying authority. Id. (emphasis added).
`
`47. Subsection 401(a)(2) describes the appropriate procedure when a
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`potential discharge may affect a neighboring jurisdiction other than that in which
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`the potential discharge will originate. See 33 U.S.C. § 1341(a)(2).
`
`48. The Administrator must determine whether the potential discharge
`
`“may affect . . . the quality of the waters of any other State,” and, if the
`
`Administrator so determines, they must notify that state within thirty days. Id.
`
`49.
`
`“If, within sixty days after receipt of such notification,” the state
`
`“determines that such discharge will affect the quality of its waters so as to
`
`violate any water quality requirements,” the state may notify the Administrator
`
`and the Federal agency that it objects to the issuance of the license or permit and
`
`request a public hearing. Id.
`
`50. Based on the evidence adduced at the hearing, the Federal agency
`
`“shall condition such license or permit in such manner as may be necessary to
`
`insure compliance with applicable water quality requirements. If imposition of
`
`conditions cannot insure such compliance such agency shall not issue such
`
`license or permit.” Id.
`
`
`
`17
`
`

`

`Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 18 of 88
`
`51. Subsection 401(a)(3) makes clear that the certification applies to
`
`both a Federal license or permit to construct a facility as well as any Federal
`
`license or permit to operate such facility, unless the certifying authority, based
`
`on information received from the Federal agency licensing or permitting the
`
`operation of the facility determines “that there is no longer reasonable assurance
`
`that there will be compliance with the applicable provisions of sections [301,
`
`302, 303, 306, and 307 of the Clean Water Act] because of changes since the
`
`construction license or permit certification was issued in (A) the construction or
`
`operation of the facility, (B) the characteristics of the waters into which such
`
`discharge is made, (C) the water quality criteria applicable to such waters or (D)
`
`applicable effluent limitations or other requirements.” 33 U.S.C. § 1341(a)(3).
`
`52. Subsection 401(a)(4) governs facilities or activities for which a
`
`federal license or permit is required for construction, but not for operation, and
`
`allows the certifying authority to review the facility’s or activity’s proposed
`
`operation to determine whether it “will violate applicable effluent limitations or
`
`other limitations or other water quality requirements.” 33 U.S.C. § 1341(a)(4).
`
`53.
`
`If so, the licensing or permitting agency may suspend the license or
`
`permit after opportunity for public hearing, until the certifying authority notifies
`
`the licensing or permitting agency that “there is reasonable assurance that such
`
`
`
`18
`
`

`

`Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 19 of 88
`
`facility or activity will not violate the applicable provisions of section [301, 302,
`
`303, 306, or 307]” of the Clean Water Act. Id.
`
`54. Subsection 401(a)(5) allows a Federal license or permit to be
`
`revoked upon the entering of a judgment that the licensed or permitted facility
`
`or activity was “operated in violation of the applicable provisions of section
`
`1311, 1312, 1313, 1316 or 1317” of the Clean Water Act. 33 U.S.C.
`
`§ 1341(a)(5).
`
`55. Subsection 401(a)(6) is a grandfathering provision. See 33 U.S.C.
`
`§ 1341(a)(6).
`
`56. Subsection 401(b) provides that “[n]othing in this section shall be
`
`construed to limit the authority of any department or agency pursuant to any
`
`other provision of law to require compliance with any applicable water quality
`
`requirements.” 33 U.S.C. § 1341(b).
`
`57. That subsection also instructs the Administrator to provide relevant
`
`information concerning “applicable effluent limitations, or other limitations,
`
`standards, regulations, or requirements, or other water quality criteria” to
`
`Federal agencies and certifying authorities, and to “comment on any methods to
`
`comply with such limitations, standards, regulations, requirements, or criteria”
`
`when requested to do so. Id.
`
`
`
`19
`
`

`

`Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 20 of 88
`
`58. Subsection 401(c) authorizes the U.S. Army Corps of Engineers to
`
`permit the use of soil disposal areas by Federal licensees or permittees. 33
`
`U.S.C. § 1341(c).
`
`59. Finally, subsection 401(d) governs the contents of a certification,
`
`directing certifying authorities to include conditions to protect water quality:
`
`Any certification provided under this section shall set
`forth any effluent limitations and other limitations, and
`monitoring requirements necessary to assure that any
`applicant for a federal license or permit will comply
`with any applicable effluent limitations and other
`limitations, under section [301 or 302] of this title,
`standard of performance under section [306] of this
`title, or prohibition, effluent standard, or pretreatment
`standard under section [307] of this title, and with any
`other appropriate requirement of State law set forth in
`such certification, and shall become a condition on any
`Federal license or permit subject to the provisions of
`this section.
`
`33 U.S.C. § 1341(d).
`EPA’s 1971 Regulations Provided Procedural Guidance to Certifying
`Authorities and Federal Agencies Without Modifying or Interpreting the
`Substantive Provisions of Section 401.
`
`60.
`
`In 1971, prior to the enactment of the modern-day Clean Water Act,
`
`EPA promulgated regulations implementing Section 21(b) of the FWPCA. See
`
`36 Fed. Reg. 22,487 (Nov. 5, 1971) (codified at 40 CFR Part 121). These
`
`regulations served as EPA’s implementing regulations for Section 401 from
`
`1971 until September 11, 2020.
`
`
`
`20
`
`

`

`Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 21 of 88
`
`61. Those regulations provide that the contents of a certification must
`
`include a “statement that there is a reasonable assurance that the activity will be
`
`conducted in a manner which will not violate applicable water quality
`
`standards,” a “statement of any conditions which the certifying agency deems
`
`necessary or desirable with respect to the discharge of the activity,” and “[s]uch
`
`other information as the certifying agency may determine to be appropriate.” 40
`
`C.F.R. § 121.2(a)(3)–(5).
`
`62. Such certification is based on either information contained in the
`
`application to the Federal licensing or permitting agency, or any additional
`
`information provided to the certifying authority by the applicant in order for the
`
`authority to be able to make its “reasonable assurance” determination. See 40
`
`C.F.R. § 121.2(a)(2); see also 40 C.F.R. § 121.3 (applications to the Federal
`
`licensing or permitting agency shall “include . . . such information relating to
`
`water quality considerations as may be agreed upon by the licensing or
`
`permitting agency and the Administrator”).
`
`63. The certification requirement is waived upon either: “(a) Written
`
`notification from the State or interstate agency concerned that it expressly
`
`waives its authority to act on a request for certification; or (b) Written
`
`notification from
`
`the
`
`licensing or permitting agency
`
`to
`
`the Regional
`
`Administrator of the failure of the State or interstate agency concerned to act on
`
`
`
`21
`
`

`

`Case 2:20-cv-03412-MMB Document 1 Filed 07/13/20 Page 22 of 88
`
`such request for certification within a reasonable period of time after receipt of
`
`such request, as determined by the licensing or permitting agency (which period
`
`shall generally be considered to be 6 months, but in any event shall not exceed
`
`1 year).” 40 C.F.R. § 121.16.
`
`64. The regulations also provide for procedures to determine whether a
`
`potential discharge will affect more than one State, and procedures that apply
`
`when the EPA Administrator is the certifying authority, and circumstances under
`
`which an EPA regional

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