United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
United States Environmental Protection Agency
(“EPA”), Acting EPA Administrator Andrew Wheeler,
and Acting EPA Regional Administrator for Region 4 Mary
Walker (collectively “Defendants”) move to
voluntarily remand part of this action to the EPA without
Vacatur. (Doc. 30). Plaintiff Black Warrior River-Keeper,
Inc. (“River-Keeper” or “Plaintiff”)
opposes the motion and urges the court to move to the summary
judgment phase of this action. (Doc. 32). The motion is fully
briefed and ripe for review. For the reasons stated below,
the motion (doc. 30) is DENIED.
filed its complaint pursuant to the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701 et
seq., challenging the EPA's decision to approve the
State of Alabama's 2018 list of impaired waters under
§ 303(d) of the Clean Water Act, 33 U.S.C. §
1313(d). (Doc. 1). Plaintiff alleges the EPA approved the
State of Alabama's delisting of certain impaired waters
in the Black Warrior basin from its 2018 § 303(d) list
without requiring supporting evidence that these waters now
meet applicable standards and without considering all
relevant information. (Id. at 1-2).
February 11, 2018, Alabama (through its Department of
Environmental Management (“ADEM”)) issued its
2018 Draft § 303(d) List. (Doc. 1 at 9). ADEM proposed
delisting several streams in the Black Warrior basin,
including two segments of Lost Creek that had been included
in previous § 303(d) Lists as being impaired for
siltation (habitat alternation). (Doc. 20-11 at 73; EPA
2871). To support the delisting decision for the two segments
of Lost Creek, ADEM relied upon the following: (1) excerpted
water chemistry data from Lost Creek monitoring stations
LOSW1, LOSW2, LOSW4, and LOSW5 that is found in EPA's
Water Quality Portal; (2) habitat assessments from stations
LOSW1 and LOSW5; and (3) macroinvertebrate assessments from
LOSW1 and LOSW5. (Id. at 71; EPA 2869). The habitat
and macroinvertebrate assessments were taken directly from
the 2012 Lost Creek Hwy. 78 Monitoring Study (doc. 22-1 at
2-3) (for Segment 1) and the 2012 and 2013 Lost Creek Hwy. 69
Monitoring Study (doc. 22-1 at 5-6) (for Segment 2)
(collectively, “Monitoring Studies”).
alleges ADEM “selectively cut and pasted information
from the Monitoring Studies” in its delisting decision
provided to the EPA. (Doc. 22 at 3) (citing doc. 20-11 at
77-80; EPA 2875-2878, figs. 5-8). Plaintiff further contends
EPA did not include the Monitoring Studies or complete water
chemistry data for monitoring stations LOSW1, LOSW2, LOSW4,
and LOSW5 in the Administrative Record (“AR”)
compiled in this case, even though ADEM explicitly relied on
excerpted data from these stations to delist Lost Creek.
(Id. at 3-4) (citing doc. 20-11 at 76-79, 83; EPA
2874-2877, 2881 & doc. 22-1 at 8-11).
on March 13, 2018, Plaintiff submitted a copy of its ADEM
comment letter to the EPA, objecting to the delisting of Lost
Creek and Big Yellow Creek. (Doc. 20-9 at 87-99; EPA
2540-2552). In its electronic comment, Plaintiff discussed
how the Monitoring Studies that ADEM selectively citied in
its delisting decision do not support delisting and provided
links so that EPA could view the two Monitoring Studies and
verify its analysis and conclusions. (Id. at 89 n.1;
EPA 2542 n.1). Plaintiff contends the Monitoring Studies
conclude the two segments of Lost Creek should remain on the
§303(d) List and that ADEM omitted those conclusions
from the delisting decision approved by the EPA. (Doc. 22 at
also posits that in the same comments it discussed why
ADEM's “poorly explained switch in 2018 to a metric
of turbidity and total suspended solids
(“TSS”)” (doc. 20-11 at 73-75; EPA
2871-2873), “was inappropriate to measure the siltation
and habitat impairment in Lost Creek.” (Doc. 22 at 4).
ADEM's previous decisions evaluating Lost Creek's
impairment for siltation used a water chemistry metric of
total dissolved solids and concluded the stream should remain
on the § 303(d) List. (Docs. 22 at 4-5 & 22-1 at 3,
to the scheduling order, on August 1, 2019, Defendants filed
the administrative record with an agency
certification. (Doc. 20). Thereafter, Plaintiff moved to
complete or supplement the administrative record. (Doc. 21).
On October 9, 2019, the undersigned entered a memorandum
opinion and order granting Plaintiff's motion to the
limited extent that the court would consider the Monitoring
Studies as extra-record evidence, regardless of whether they
are made part of the record. (Doc. 29).
October 18, 2019, Defendants moved to voluntarily remand part
of this action without vacatur, only remanding as to its Lost
Creek delisting determinations. (Doc. 30). Plaintiff opposes
remanding without vacatur. (Doc. 32).
Standard of Review
“vacatur . . . is the ordinary APA remedy, ”
Sierra Club v. Van Antwerp, 526 F.3d 1353, 1369
(11th Cir. 2008) (Kravitz, J. concurring in part and
dissenting in part), remand without vacatur is permitted.
Black Warrior Riverkeeper v. U.S. Army Corps of
Eng'rs, 781 F.3d 1271, 1290 (11th Cir. 2015). To
decide whether an agency's action should be remanded
without vacatur, a court must balance the equities.
Id. A court must consider “the seriousness of
the order's deficiencies (and thus the extent of doubt
whether the agency chose correctly) and the disruptive
consequences of an interim change that may itself be
changed.” Id. (quoting Allied-Signal, Inc.
v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146,
considering whether to remand an agency action without
vacatur, the court must balance the equities and consider
“the seriousness of the order's deficiencies (and
thus the extent of doubt whether the agency chose correctly)
and the disruptive consequences of an interim change that may
itself be changed.” Black Warrior Riverkeeper,
781 F.3d at 1290 (citations omitted). “[W]hen equity
demands, [the challenged agency action] can be left in place
while the agency follows necessary procedures to correct its
action.” Cal. Cmtys. Against Toxics v. U.S.
EPA, 688 F.3d 989, 992 (9th Cir. 2012) (quoting
Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d
1392, 1405 (9th Cir 1995)). The Eleventh Circuit has
explained that remand without ...