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Black Warrior River-Keeper Inc. v. Environmental Protection Agency

United States District Court, N.D. Alabama, Southern Division

November 8, 2019

BLACK WARRIOR RIVER-KEEPER, INC., Plaintiff,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.

         Defendants 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.

         I. Background

         Plaintiff 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).

         On 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”).

         Plaintiff 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).

         Specifically, 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 4).

         Plaintiff 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, 6).

         Pursuant to the scheduling order, on August 1, 2019, Defendants filed the administrative record with an agency certification.[1] (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).

         On 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).

         II. Standard of Review

         While “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, 150-51 (D.C.Cir.1993).

         III. Analysis

         When 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 ...


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