NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IDAHO CONSERVATION LEAGUE,

Petitioner,

v.
U.S. ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER, in his official capacity as Administrator of the U.S. Environmental Protection Agency ,

Respondents, STATE OF IDAHO; et al.,

Intervenors, No. 18

- 72684

MEMORANDUM *

On Petition for Review of an Order of the Environmental Protection Agency Argued and Submitted March 5, 2020

Portland, Oregon Before: McKEOWN and PAEZ, Circuit Judges, and HUCK, * * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. 

# FILED

SEP 10 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Idaho Conservation League (“ICL”) petitions for review of the United States Environmental Protection Agency’s (“EPA”) approval of the Idaho Pollution Discharge Elimi nation System (“IPDES”). The parties are familiar with the facts, so we do not repeat them here. We have jurisdiction under 33 U.S.C. § 1369(b)(1)(D), and w e grant the petition in part , deny it in part , and remand
without vacatur in part

. ICL has associational standing to bring th is challenge

. See Friends of the Earth, Inc. v. Laidlaw Env ’ t Serv s . (TOC), Inc. , 528 U.S. 167, 181 (2000) ; Nat

. Res

. Def

. Council v. EPA , 542 F.3d 1235, 1248 (9th Cir. 2008)

. EPA’s conclusion that a two

- year statute of limitations for bringing an enforcement action provided “adequate authority” to “abate violations of the permit or the permit program,” 33 U.S.C. § 1342(b)(7), was not arbitrary and capricious. Nor did EPA err by concluding that the I daho Department of Environmental Quality will have sole responsibility for administering the IPDES

program , including the permits for concentrated animal feeding operations (“CAFO”). Therefore, w e deny the petition with respect to ICL’s challenges

concern ing the statute of limitations and the I daho State Department of Agriculture ’s alleged role in administering CAFO permits

. However, EPA abused its discretion in approving a mens rea standard “greater than the burden of proof or degree of knowledge or inten t EPA must3

provide when it brings an action

. . . . ” 40 C.F.R. § 123.27(b)(2). B ecause § 123.27(b)(2) is neither ambiguous nor inconsistent with 40 C.F.R. § 123.27(a)(3)(ii) , Auer deference is not warranted for EPA’s interpretation of its

own regulation

. See Kisor v. Wilkie , 139 S. Ct. 2400 , 2 415 (2019)

. Regardless of
the broad range of state law mens rea standards

— spanning the lowe st standard of “strict liability” to the high est standard of “criminal negligence”

— that could satisfy § 123.27(a)(3)(ii), § 123.27(b)(2) provides a standalone requirement that
was not satisfied here.
We have held that EPA may bring an enforcement action for “negligent”
violation , see 33 U.S.C. § 1319( c) (1) , under the ordinary negligence standard

. See
United States v. Hanousek , 176 F.3d 1116, 1121 (9th Cir. 1999). Thus, whi l e a

state program need not mirror the burden of proof and degree of knowledge or intent EPA must meet to bring an enforcement act ion, see Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,382 ( May 19, 1980), under § 123.27(b)(2), a state plan must employ a standard “no greater than” simple negligenc e, such as strict liability or simple negligence

. Because EPA approved the ID PES even
th ough it used a standard greater than simple negligence, “gross negligence , ” we grant the petition with respect to invocation of the improper mens rea standard.
W e remand without vacatur for EPA to promptly address the IPDES’ s deficiency with respect to the mens rea standard , even though remand without4

vacatur is appropriate only in “limited circumstances.” Cal. Cmt y s. Against Toxics
v. EPA , 688 F.3d 989, 994 (9th Cir. 2012)

. Congress envisioned state and federal partnership s in achieving the goals of the CWA. See 33 U.S.C. § 1251(b);
Arkansas v. Oklahoma , 503 U.S. 91, 101 (1992). We note that o n remand, Idaho, one of the last states to create a state permit program, has the option to enter into
that partnership in accordance with the CWA

. PETITION GRANT ED IN PART, DENI ED IN PART , AND REMAND ED WITHOUT VACATUR IN PART
. Each party shall pay its own costs on appeal.