1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 WATERKEEPER ALLIANCE, INC., et al., 10 Case No. 18-cv-03521-RS Plaintiffs, 11 v. ORDER GRANTING MOTION TO 12 REMAND U.S. ENVIRONMENTAL PROTECTION 13 AGENCY, et al., 14 Defendants.

15 16 This is one of several cases filed in various United States District Courts throughout the 17 nation challenging rules promulgated by the United States Environmental Protection Agency and 18 the United States Army Corps of Engineers that define “waters of the United States” for purposes 19 of applying the Clean Water Act, see e.g., Conservation Law Foundation v. United States 20 Environmental Protection Agency, No. 1:20-cv-10820 (D. Mass.); Pascua Yaqui Tribe v. United 21 States Environmental Protection Agency, 4:20-cv-00266 (D. Ariz.), including another case 22 pending in this court, State California v. Regan, 3:20-cv-3005 RS (N.D.Cal.). 23 Defendants seek voluntary remand to the agencies and dismissal of this case. Plaintiffs 24 oppose remand unless the current rule is vacated. The issue of whether vacatur is warranted or not 25 appears to be moot, however, given that the Pascua Yaqui court issued an order on August 13, 26 2021 vacating the rule. 27 Were it still necessary to reach the issue, this court would not be inclined to impose 1 acknowledgement of “legal error” embodied in the present rule is not persuasive. Defendants do 2 || not concede the rule is legally impermissible, and in California v. Regan, this court concluded the 3 || plaintiffs were unlikely to succeed on the merits in showing such legal error. Rather, defendants 4 || appear to be reconsidering the rule for policy reasons. While it is within defendants’ discretion to 5 modify their policies and regulatory approaches, and it may ultimately resolve some or all of 6 || plaintiffs’ objections to the current rule, there has been no evaluation of the merits—or concession 7 by defendants—that would support a finding that the rule should be vacated. 8 Intervenors Chantell and Michael Sackett oppose remand as to one specific provision — 9 || relating to “adjacent wetlands” — which they contend the agencies would lack discretion to 10 || eliminate or substantially revise on remand. The Sackett’s argument, however, rests on their 11 position that the four-justice plurality opinion in Rapanos v. United States,

, 126 12 || S.Ct. 2208 (2006) is controlling. The Ninth Circuit has recently rejected that very claim by the 13 Sacketts. Sackett v. U.S. Env’t Prot. Agency,

, 1091 (9th Cir. 2021)(‘‘For all these 14 || reasons, the Sacketts’ arguments fail . . . the Kennedy concurrence is still the controlling opinion 3 15 from Rapanos.’) a 16 Accordingly, the motion to remand is granted. The Clerk shall close the file.

18 || ITISSO ORDERED. 19 20 Dated: September 16, 2021 21 , RICHARD SEEBORG 22 Chief United States District Judge 23 24 25 26 27 . CASE No. 18-cv-03521-RS