Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 1 of 29
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`PUGET SOUNDKEEPER ALLIANCE,
`SIERRA CLUB, IDAHO CONSERVATION
`LEAGUE, and MI FAMILIA VOTA,
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`Case No. 2:20-cv-950
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`COMPLAINT
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`Plaintiffs,
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY, ANDREW
`WHEELER, in his official capacity as
`Administrator of the United States
`Environmental Protection Agency, UNITED
`STATES ARMY CORPS OF ENGINEERS,
`and R.D. JAMES, in his official capacity as
`Assistant Secretary of the Army for Civil
`Works,
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`
`v.
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`Defendants.
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`
`INTRODUCTION
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`1. Congress declared a single objective for the Clean Water Act: “to restore and
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`maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
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`§ 1251(a). To achieve that objective, the Act prohibits and regulates the discharge of pollutants
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`into “navigable waters,” which the Act defines broadly as “the waters of the United States.” Id.
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`§ 1362(7).
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`COMPLAINT
`(No. 2:20-cv-950) -1-
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 2 of 29
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`2. Congress adopted the Clean Water Act as a uniform and comprehensive national
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`approach to water protection to replace decades of fragmented approaches that had relied on the
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`states and had failed to protect the nation’s waters. It is one of the nation’s most important and
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`successful environmental laws.
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`3. Plaintiffs challenge two final rules promulgated by the United States Environmental
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`Protection Agency (“EPA”); Andrew Wheeler, Administrator of the EPA; the United States
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`Army Corps of Engineers (“Corps”); and R.D. James, Assistant Secretary of the Army for Civil
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`Works (collectively, “the Agencies”). The first, entitled “Definition of Waters of the U.S.:
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`Recodification of Pre-Existing Rules,” 84 Fed. Reg. 56,626 (October 22, 2019) (the “Repeal
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`Rule”), repealed the 2015 “Clean Water Rule” which defined the term “waters of the United
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`States” in the Clean Water Act. The second, entitled “The Navigable Waters Protection Rule:
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`Definition of Waters of the United States,” 85 Fed. Reg. 22,250 (April 21, 2020) (the “Navigable
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`Waters Rule”), replaced the Clean Water Rule and its predecessor rules with a definition of
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`“waters of the United States” that substantially narrows the waters protected by the Act.
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`4. The Navigable Waters Rule exceeds the Agencies’ statutory authority and is contrary
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`to the Clean Water Act’s text, structure, objectives, and legislative history requiring broad
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`protection of all the Nation’s waters, because its provisions exclude waters from the protections
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`required and afforded by the Act.
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`5. Plaintiffs also challenge the Repeal Rule and the Navigable Waters Rule as arbitrary
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`and capricious because both rules are contrary to the evidence before the Agencies, including
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`vast volumes of science and technical evidence in the administrative record and the
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`uncontroverted findings made by the EPA and its own Science Advisory Board. The Agencies
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`also failed to explain their decision to reverse prior regulations and failed to consider important
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`COMPLAINT
`(No. 2:20-cv-950) -2-
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 3 of 29
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`aspects of the problem, including the effects on water quality and aquatic ecosystems of stripping
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`protections for large numbers of waters, the ecological importance of protecting the excluded
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`waters, and the effects of the reversal on the objectives of the Clean Water Act. These decisions
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`are arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act
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`(“APA”), 5 U.S.C. § 706(2).
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`6. Plaintiffs ask the Court to vacate and set aside the Repeal Rule and the Navigable
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`Waters Rule, and to reinstate the Clean Water Rule.
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`PARTIES
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`7. Plaintiff Puget Soundkeeper Alliance is a nonprofit corporation organized and
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`existing under the laws of Washington, with its headquarters in Seattle. Its mission is to protect
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`and preserve the waters of Puget Sound by detecting and reporting pollution, engaging
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`government agencies and businesses to regulate pollution discharges, and enforcing requirements
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`under the CWA to control or halt pollution and other adverse impacts to waters from sewage-
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`treatment plants, industrial facilities, construction sites, municipal storm sewers, and other
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`sources. Puget Soundkeeper Alliance has nearly 1,500 members who reside throughout the
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`Puget Sound watershed. Some of its members participate in volunteer boat or kayak patrols to
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`observe water-quality conditions, check for abnormal discharges and pollution, and remove
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`floating trash and debris. Puget Soundkeeper Alliance also accomplishes its work, in part, by
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`working to enforce the permitting requirements of the Act throughout the Puget Sound
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`watershed. Puget Soundkeeper’s members use and recreate on the Sound and the waters
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`throughout the Puget Sound watershed. Puget Soundkeeper and its members have significant
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`interest in preserving the full reach of the Clean Water Act’s protections.
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`8. Plaintiff Sierra Club is a nonprofit corporation organized and existing under the laws
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`of California, with its headquarters in San Francisco. It is a national organization dedicated to
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`COMPLAINT
`(No. 2:20-cv-950) -3-
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 4 of 29
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`protecting public health and the environment. The Sierra Club has long worked to protect clean
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`water. In particular, local chapters of the Sierra Club have defended treasured waterbodies
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`throughout the U.S. from pollution, development, and destruction. The Sierra Club has more
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`than 630,000 members who reside in all fifty states and the District of Columbia. Some Sierra
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`Club chapters and groups run local Water Sentinels programs that train member volunteers to
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`test their local waterbodies for contamination and present the results to local regulatory officials,
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`to organize cleanups, and to advocate before government agencies to help improve water quality.
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`Sierra Club members use and recreate on waters and own property that contains waters that will
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`be affected by the rules challenged here. Sierra Club and its members have an interest in
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`preserving the full protections of the Clean Water Act.
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`9. Plaintiff Idaho Conservation League is an Idaho non-profit membership conservation
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`organization. The Idaho Conservation League and its approximately 10,000 members are
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`dedicated to protecting and conserving Idaho’s natural resources, including its water quality and
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`native fish. The Idaho Conservation League’s mission is to protect Idaho’s clean water, clean
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`air, healthy families, and unique way of life. The Idaho Conservation League, its staff, and its
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`members are active in public education, administration, and legislative advocacy on conservation
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`issues in Idaho, including advocacy aimed at addressing the impacts of pollution on water quality
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`and native fish. The Idaho Conservation League’s members use and enjoy waters in Idaho for
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`recreational, scientific, aesthetic, cultural, and commercial purposes.
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`10. Mi Familia Vota is a nonprofit public-interest advocacy organization working to
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`advance and protect the interests of Latino communities in areas of immigration, voting,
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`environment, workers’ rights, education, and healthcare. Mi Familia Vota works for the
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`community through offices located in Arizona, California, Colorado, Texas, Nevada, and
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`COMPLAINT
`(No. 2:20-cv-950) -4-
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 5 of 29
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`Florida, with members throughout those states. Mi Familia Vota’s members and their
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`communities are adversely affected by the Repeal Rule and the Navigable Waters Rule, as they
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`rely on waters throughout the West for drinking water and their livelihoods. Mi Familia Vota
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`also works on issues for and with its members involving housing and development policies in
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`places like Houston, Texas, that have been made more vulnerable to storms like Hurricane
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`Harvey as a result of the destruction of wetlands.
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`11. Defendant U.S. Environmental Protection Agency is a federal agency charged with
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`administering the Clean Water Act through its Administrator, Andrew Wheeler. 33 U.S.C. §
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`1251(d). It co-promulgated the Navigable Waters Rule and the Repeal Rule, the rules challenged
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`here.
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`12. Defendant U.S. Army Corps of Engineers is a federal agency within the Department
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`of the Army. It is authorized to issue permits for the discharge of dredged or fill material into the
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`waters of the United States, through the Assistant Secretary of the Army for Civil Works, R.D.
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`James. Id. §§ 1344, 1362(7). It co-promulgated the Navigable Waters Rule and the Repeal
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`Rule, the rules challenged here.
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`13. If the Repeal Rule and the Navigable Waters Rule are allowed to stand, the Plaintiff
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`organizations and their members will suffer significant harm. The challenged rules strip Clean
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`Water Act protections from wetlands and streams across the country, leaving many previously
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`protected wetlands vulnerable to degradation and destruction and entirely eliminating protections
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`for ephemeral streams. Because members of the Plaintiff organizations rely on waters that have
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`lost Clean Water Act protections as a result of the Agencies’ rules, and also rely on downstream
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`waters that will be harmed by the pollution of unprotected waters upstream, Plaintiffs and their
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`members will be injured by the regulations.
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`COMPLAINT
`(No. 2:20-cv-950) -5-
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 6 of 29
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`14. Members of the Plaintiff organizations, for example, routinely enjoy bird watching,
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`taking photographs, and searching for other wildlife and wildflowers both in and along wetlands,
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`ephemeral streams, and other upstream waters that have lost Clean Water Act protections under
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`the Repeal Rule and the Navigable Waters Rule. Many of these waters are now imminently
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`threatened by agricultural, mining, and development activities that could destroy or pollute the
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`waters in the absence of the limits or mitigation required by Clean Water Act permits. Members
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`of the Plaintiff organizations also fish, kayak, canoe, and swim in downstream rivers, streams,
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`and lakes that face a threat of being polluted as a result of the loss of Clean Waters Act
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`protections for upstream waters under the challenged regulations.
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`15. Plaintiff Idaho Conservation League has been actively engaged in a variety of
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`educational and advocacy efforts to protect what had previously been recognized as “waters of
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`the United States” for going on 20 years. Defendants’ adoption of the Repeal Rule and
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`Navigable Waters Rule has made it more difficult to achieve Idaho Conservation League’s
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`institutional objectives in protecting its members, the public, and aquatic environments from the
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`harms associated with unpermitted activities that harm or destroy waters. Idaho Conservation
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`League has had to dedicate additional research and mapping capabilities in order to research
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`whether threatened Idaho waters remain protected as “waters of the United States,” and it is now
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`dedicating additional staff time to compile evidence and draft documents needed to prove a water
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`is protected under the Clean Water Act, whereas previously it could rely on application of the
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`2015 Clean Water Rule to determine jurisdiction and then move to the next steps of advocacy of
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`enforcing the law and advocating for permits.
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`16. Each of these injuries are fairly traceable to the challenged regulations and are
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`capable of redress by an order of this Court vacating the rules.
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`COMPLAINT
`(No. 2:20-cv-950) -6-
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 7 of 29
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`JURISDICTION AND VENUE
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`17. This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question),
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`and the Clean Water Act, 33 U.S.C. § 1369(b); Nat’l Assoc. of Manufacturers v. Dep’t of
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`Defense, 138 S.Ct. 617 (2018). The Court is authorized to grant relief under 5 U.S.C. § 706
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`(Administrative Procedure Act), and 28 U.S.C. § 2202 (further necessary or proper relief).
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`18. Venue is proper in this Court pursuant to 28 U.S.C. § 1391, because one of the
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`Plaintiffs, Puget Soundkeeper Alliance, resides in this district.
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`LEGAL FRAMEWORK
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`I.
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`THE CLEAN WATER ACT
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`19. The objective of the Clean Water Act “is to restore and maintain the chemical,
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`physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`20. The Act protects waters from pollution, and from damage or destruction from
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`dredging or filling, by prohibiting “the discharge of any pollutant by any person” except in
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`compliance with the Act’s permitting requirements and other pollution-prevention programs. Id.
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`§ 1311(a) (incorporating id. §§ 1312, 1316, 1317, 1328, 1342, and 1344). These programs
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`include the National Pollutant Discharge Elimination System (“NPDES”), id. § 1342; the section
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`404 permitting program for discharges of dredged or fill material, id. § 1344; and the section 311
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`oil-spill prevention and response programs, id. § 1321.
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`21. The protections of the Clean Water Act extend to “navigable waters,” which the Act
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`broadly defines as including all of the “waters of the United States, including the territorial seas.”
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`See id. §§ 1251, 1321, 1342, 1344; 1362(7).
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`22. The Act followed and sought to reverse years of failed efforts to protect and clean up
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`the Nation’s waters through the implementation of state-based water-quality standards. S. Rep.
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`No. 92-414 at 7 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3672.
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`COMPLAINT
`(No. 2:20-cv-950) -7-
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 8 of 29
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`23. The Act’s legislative history confirms that Congress adopted the “broadest possible”
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`definition of “navigable waters” of the United States, unencumbered by earlier and narrower
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`administrative interpretations. H.R. Rep. No. 92-911 at 76-77 (1972). As the conference report
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`emphasized, “the conferees fully intend that the term ‘navigable waters’ be given the broadest
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`possible constitutional interpretation unencumbered by agency determinations which have been
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`made or may be made for administrative purposes.” Clean Water Act Legislative History,
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`Senate Consideration of the Rpt. of the Conference Committee, Oct. 4, 1972, at 178. The Senate
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`Committee on Public Works “was reluctant to define” the term “navigable waters” based “on the
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`fear that any interpretation would be read narrowly[,]” and it reiterated that it “fully intend[ed]
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`that the term ‘navigable waters’ be given the broadest possible constitutional interpretation.”
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`Clean Water Act Legislative History at 818.
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`24. In directing the broadest possible protection, Congress relied on science
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`demonstrating the interconnectedness of waters and the need to ensure that aquatic ecosystems as
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`a whole are protected in order to fulfill the Act’s purpose, especially waters upstream of
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`“traditionally navigable waters.” Congress recognized that “[w]ater moves in hydrological
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`cycles and it is essential that discharge of pollutants be controlled at the source.” S. Rep. No.
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`92-414 at 77 (1971) (emphasis added).
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`25. The core provisions of the regulatory definition of “waters of the United States”
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`remained largely unchanged for a long period of time, from 1979 until fairly recently. See 44
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`Fed. Reg. 32,854, 32,901 (June 7, 1979) (defining “waters of the United States” to include,
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`among other things, “(1) All waters which are currently used, were used in the past, or may be
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`susceptible to use in interstate or foreign commerce, including all waters which are subject to the
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`ebb and flow of the tide; (2) Interstate waters, including interstate wetlands; (3) All other waters
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`COMPLAINT
`(No. 2:20-cv-950) -8-
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`Earthjustice
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 9 of 29
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`such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats and
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`wetlands the use, degradation or destruction of which would affect or could affect interstate or
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`foreign commerce …; (4) All impoundments of waters otherwise defined as navigable waters…;
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`(5) Tributaries of waters identified in paragraphs (1)-(4) …, including adjacent wetlands; and (6)
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`Wetlands adjacent to waters identified in paragraphs (1)-(5)”).
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`26. In general, federal courts, including the Supreme Court, have affirmed that the Act’s
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`protective reach must be interpreted and applied to waters broadly in order to ensure that the
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`purpose of restoring and maintaining the biological, physical, and chemical integrity of our
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`Nation’s waters is fulfilled. See Int’l Paper Co. v. Ouellette, 479 U.S. 481, 486 n.8 (1987)
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`(noting that “navigable waters” “has been construed expansively to cover waters that are not
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`navigable in the traditional sense”); United States v. Riverside Bayview Homes, Inc., 474 U.S.
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`121, 136-39 (1985) (affirming the Corps’ application of jurisdiction to wetlands adjacent to
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`navigable waters).
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`27. While the Supreme Court has established that the Act’s protections do not extend to
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`each and every wet area, such as the water-filled abandoned gravel mining pits at issue in Solid
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`Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 164-65
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`(2001), the Court has consistently affirmed that the EPA and the Corps have broad authority
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`under the Clean Water Act to protect both navigable and non-navigable waters that are adjacent,
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`connected, or have a significant nexus to navigable waters. See id. at 167-68; Rapanos v. United
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`States, 547 U.S. 715, 740-42 (2006); id. at 759 (Kennedy, J., concurring in judgment).
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`28. The Supreme Court’s 2006 decision in Rapanos v. United States, 547 U.S. at 715,
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`involved disputes over whether certain wetlands fall within the protections of the Clean Water
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`Act. While a plurality of the justices agreed to the result—a remand to address whether the
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`COMPLAINT
`(No. 2:20-cv-950) -9-
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`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 10 of 29
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`Corps’ assertion of jurisdiction was supported by facts in the record—all three of the opinions
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`directly disagreed with some aspects of one another, resulting in no controlling decision or
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`precedent. Further, the points agreed upon by a majority of the justices were few. A majority of
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`five justices interpreted the Act as protecting all waters, including wetlands, that “possess a
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`‘significant nexus’—a science-based inquiry designed to meet and fulfill the objections of the
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`Act—to waters that are or were navigable in fact or that could reasonably be so made,” including
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`Justice Kennedy and the four dissenting justices. Id. at 759 (Kennedy, J., concurring in
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`judgment); id. at 810 (Stevens, J., dissenting). The four dissenting justices, led by Justice
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`Stevens, would have upheld the Corps’ authority to regulate the wetlands at issue outright, based
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`on the Clean Water Act and the Corps’ existing regulations. Id. at 787-99 (Stevens, J.,
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`dissenting). Overall, a majority of the Court decided that the Corps may have jurisdiction to
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`protect and regulate the waters in question in the case, but must further examine and justify
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`jurisdiction in light of the Court’s discussion in the case.
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`29. Following Rapanos, most Circuit Courts have interpreted and applied the decision,
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`and all of the Circuit Courts that have applied Rapanos have either adopted Justice Kennedy’s
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`“significant nexus” test or found that a waterbody that meets either the “significant nexus” test or
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`the plurality’s test is protected under the Act. No Circuit Court has ruled that only the Justice
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`Scalia plurality opinion provides the proper test for application of the Clean Water Act.
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`II.
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`THE ADMINISTRATIVE PROCEDURE ACT
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`30. Final agency actions are subject to judicial review under the Administrative
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`Procedure Act. 5 U.S.C. § 704.
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`31. In reviewing a final agency action, the court shall hold unlawful and set aside agency
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`action, findings, and conclusions that are found to be arbitrary, capricious, an abuse of agency
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`discretion or otherwise not in accordance with the law, id. § 706(2)(A), or agency actions that are
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`COMPLAINT
`(No. 2:20-cv-950) -10-
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`Earthjustice
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`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 11 of 29
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`in excess of statutory jurisdiction, authority or limitations, or short of statutory right, id. §
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`706(2)(C), or agency actions that are not in observance of procedure required by law. Id. §
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`706(2)(D).
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`I.
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`THE CLEAN WATER RULE
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`STATEMENT OF FACTS
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`32. On April 21, 2014, EPA and the Corps published a proposed rule to define “waters of
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`the United States” under the Clean Water Act. 79 Fed. Reg. 22,188 (Apr. 21, 2014) (“Proposed
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`Rule”).
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`33. The Agencies stated their intention in the Proposed Rule to “retain[] much of the
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`structure of the [A]gencies’ longstanding definition of ‘waters of the United States,’ and many of
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`the existing provisions of that definition where revisions were not required in light of Supreme
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`Court decisions or other bases for revision.” Id. at 22,192.
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`34. As the scientific foundation for the Clean Water Rule, the Agencies relied on a
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`published “synthesis of published peer-reviewed scientific literature discussing the nature of
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`connectivity and effects of streams and wetlands on downstream waters,” prepared by EPA’s
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`Office of Research and Development, entitled “Connectivity of Streams and Wetlands to
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`Downstream Waters: A Review and Synthesis of the Scientific Evidence” (2015) (“Science
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`Report”). Id. at 22,189.
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`35. In preparing the Science Report and the Proposed Rule, EPA reviewed more than
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`1,200 peer-reviewed scientific papers as well as other data and information including
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`jurisdictional determinations, relevant agency guidance and implementation manuals, and federal
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`and state reports that address connectivity of aquatic resources and effects on downstream
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`waters.
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`COMPLAINT
`(No. 2:20-cv-950) -11-
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`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 12 of 29
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`36. The Science Report documented the extensive evidence demonstrating that tributaries
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`and wetlands play critical roles in maintaining the physical, chemical, and biological integrity of
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`downstream waters.
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`37. EPA’s Science Advisory Board conducted a peer review of the Science Report,
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`largely endorsing its analysis and conclusions. EPA, “Technical Support Document for the Clean
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`Water Rule: Definition of Waters of the U.S.” (May 27, 2015), at 93-94. The only critique came
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`from members of the Board who believed the rule may not provide protections for enough
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`waters.
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`38. In their Proposed Rule, the Agencies stated their intent to “interpret[] the scope of
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`‘waters of the United States’ in the Clean Water Act based on the information and conclusions in
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`the [Science] Report, other relevant scientific literature, the [A]gencies’ technical expertise, and
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`the objectives and requirements of the Clean Water Act.” Id. at 22,196. The final Clean Water
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`Rule’s findings cite to and rely upon the Science Report.
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`39. The Agencies finalized and published the Clean Water Rule on June 29, 2015, with
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`three basic categories of waters identified: (1) waters categorically protected under the Clean
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`Water Act in all instances; (2) waters protected under the Clean Water Act on a case-by-case
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`showing of significant nexus; and (3) waters categorically excluded from protection. 80 Fed.
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`Reg. 37,054 (June 29, 2015).
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`A.
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`Categorically Protected Waters
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`40. Under the Clean Water Rule, the following waters would be categorically protected
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`under the Clean Water Act in all instances: “(i) All waters which are currently used, were used
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`in the past, or may be susceptible to use in interstate or foreign commerce, including all waters
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`which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate
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`wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as
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`COMPLAINT
`(No. 2:20-cv-950) -12-
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`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 13 of 29
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`waters of the United States under … [the rule]; (v) All tributaries … of waters identified in …
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`[the preceding sections of the rule]; [and] (vi) All waters adjacent to a water identified in … [the
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`preceding sections of the rule], including wetlands, ponds, lakes, oxbows, impoundments, and
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`similar waters.” See, e.g., 80 Fed. Reg. at 37,114.
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`41. The Science Report found unequivocal consensus evidence that all tributaries,
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`including perennial, intermittent, and ephemeral streams, “exert a strong influence on the
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`integrity of downstream waters,” and that all tributaries have a significant nexus to navigable-in-
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`fact waters, interstate waters, and the territorial sea (navigable-in-fact waters, interstate waters,
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`and the territorial sea collectively referred to as, “traditional navigable waters”). Science Report
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`at ES-2. The Science Report documented the many ways that streams affect the physical,
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`chemical and biological integrity of downstream waters and served as the foundation for the
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`Clean Water Rule’s Technical Support Document to specify markers to be used to identify
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`tributaries on the landscape, including indicators of bed, banks, high water marks and flow.
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`EPA, “Technical Support Document for the Clean Water Rule: Definition of Waters of the
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`United States” (May 27, 2015), at 234-35. Based on the Science Report, the Agencies found that
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`all tributaries should be protected by the Clean Water Act.
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`42. Based on the findings of the Science Report and the Agencies, the Clean Water Rule
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`categorically protected tributaries and defined the term “tributary” as “a water that contributes
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`flow, either directly or through another water[,]” to traditional navigable waters, interstate
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`waters, or the territorial seas, and that “is characterized by the presence of the physical indicators
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`of a bed and banks and an ordinary high water mark.” 79 Fed. Reg. at 22,189, 22,199; 80 Fed.
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`Reg. at 37,058-59, 37,065, and 37,115.
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`COMPLAINT
`(No. 2:20-cv-950) -13-
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`Earthjustice
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`(206) 343-7340
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`43. The Science Report also found clear evidence that wetlands and open waters in
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`floodplains are “highly connected” to tributaries and rivers “through surface water, shallow
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`groundwater, and biological connectivity.” Science Report at ES-2 and 4-1 et seq., especially
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`4-39. The Science Report found, too, that wetlands and open waters located outside of
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`floodplains serve numerous functions that can benefit downstream water integrity, such as
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`floodwater storage. Based on the Science Report, the Agencies found wetlands and waters in
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`floodplains should be categorically protected, and broadly defined adjacent wetlands to include
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`“bordering, contiguous, or neighboring a water [otherwise protected under the regulation],
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`including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and
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`the like.” 80 Fed. Reg. at 37,058 and 37,105.
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`44. Finally, the Science Report also found that non-adjacent wetlands and waters located
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`outside of floodplains may also provide valuable physical, chemical, or biological functions such
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`as storage of flood waters, replenishing or cleansing of water supplies, or biological functions for
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`species dependent upon certain hydrologic ecosystems, all benefitting downstream water
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`integrity. Science Report at ES-3, 4-20, and 4-38.
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`B.
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`Case-By-Case Protections
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`45. Based upon the findings in the Science Report, the Agencies found that certain
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`categories of waters should be protected on a case-by-case basis when necessary to protect the
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`physical, chemical or biological integrity of downstream waters and to serve the objectives of the
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`Act. The first category of waters eligible for case-specific determinations were enumerated,
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`ecologically specific types of wetlands—namely, prairie potholes, Carolina bays and Delmarva
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`bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands that were to be
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`considered ecologically similarly situated and combined within a watershed for the purposes of
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`determining significant nexus. See, e.g., 80 Fed. Reg. at 37,114. Such waters would meet the
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`COMPLAINT
`(No. 2:20-cv-950) -14-
`
`Earthjustice
`810 Third Ave., Suite 610
`Seattle, WA 98104
`(206) 343-7340
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`Case 2:20-cv-00950-JCC Document 1 Filed 06/22/20 Page 15 of 29
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`definition of “waters of the United States” under the rule if they were “determined, on a case-
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`specific basis, to have a significant nexus to a water” otherwise protected under the rule. Id.
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`46. The second category of waters eligible for a case-specific determination included
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`“waters located within the 100-year floodplain of a water identified … [in a preceding section of