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