Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.

No. 21-454

IN THE

Supreme Court of the United States

________________________________

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;

MICHAEL S. REGAN, ADMINISTRATOR,

Respondents.

________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

________________________________

BRIEF OF CHAMBER OF COMMERCE OF THE UNITED

STATES OF AMERICA AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

________________________________

KERRY L. MCGRATH

ERICA N. PETERSON

HUNTON ANDREWS KURTH

LLP

2200 Pennsylvania

Avenue, NW, Suite 900

Washington, D.C. 20037

(202) 955-1500

ELBERT LIN

Counsel of Record

HUNTON ANDREWS KURTH

LLP

951 East Byrd Street, East

Tower

Richmond, VA 23219

elin@HuntonAK.com

(804) 788-8200

October 25, 2021

Counsel for Amicus Curiae

(Additional counsel listed

on inside cover)

ADDITIONAL COUNSEL FOR AMICUS CURIAE

Andrew R. Varcoe

Stephanie A. Maloney

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

i

QUESTION PRESENTED

Should this Court’s 4-1-4 decision in Rapanos be

revisited to clarify the appropriate test for wetlands

jurisdiction under the Clean Water Act?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ...................................................i

TABLE OF AUTHORITIES ............................................... iv

INTRODUCTION AND INTEREST OF AMICUS

CURIAE......................................................................... 1

SUMMARY OF ARGUMENT ............................................. 2

REASONS FOR GRANTING THE PETITION ................. 4

I.

This Court’s Review Is Necessary To Clarify The

Applicable Scope Of Federal Jurisdiction Under

The CWA And To Eliminate The Confusion

Resulting From Rapanos. ............................................. 4

A. The fractured Rapanos decision continues to

create regulatory uncertainty and lower court

divisions. ................................................................. 4

B. Courts and agencies struggle to apply the

significant nexus standard with any degree of

uniformity and predictability. ................................ 8

C. This Court should adopt an interpretation of

the Clean Water Act that provides greater

clarity and consistency than was provided by

Rapanos. ............................................................... 11

II. Before The Agencies Promulgate Another

Rulemaking, This Court Should Provide Clarity to

Eliminate the Confusion Caused by Rapanos. .......... 13

A. Rapanos has proven an unworkable

foundation for durable rulemaking...................... 13

iii

B. Project proponents require regulatory

certainty to predict the scope of federal

jurisdiction under the CWA. ................................ 16

CONCLUSION .................................................................. 21

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Benjamin v. Douglas Ridge Rifle Club

673 F.Supp.2d 1210 (D. Or. 2009) ........................... 9, 18

California v. Regan

No. 20-CV-03005-RS, 2021 WL 4221583

(N.D. Cal. Sept. 16, 2021) ............................................ 14

Catskill Mountains Chapter of Trout

Unlimited, Inc. v. U.S. EPA

846 F.3d 492 (2d Cir. 2017) ......................................... 19

Deerfield Plantation Phase II-B Prop.

Owners Ass’n v. U.S. Army Corps of

Eng’rs, Charleston Dist.

501 F. App’x 268 (4th Cir. 2012) (per

curiam) ........................................................................... 6

Envtl. Prot. Info. Ctr. v. Pacific Lumber Co.

469 F. Supp. 2d 803 (N.D. Cal. 2007) ............................ 9

Foster v. U.S. EPA

No. 14-16744, 2017 WL 3485049 (S.D. W.

Va. Aug. 14, 2017) ........................................................ 19

Georgia v. Pruitt

326 F. Supp. 3d 1356 (S.D. Ga. 2018) ......................... 13

Georgia v. Wheeler

418 F. Supp. 3d 1336 (S.D. Ga. 2019) ......................... 13

v

Hanousek v. United States

528 U.S. 1102 (2000) .................................................... 20

Hawkes Co. v. U.S. Army Corps of Eng’rs

782 F.3d 994 (8th Cir. 2015), aff’d, 578

U.S. 590 (2016) ....................................................... 17, 18

King v. Palmer

950 F.2d 771 (D.C. Cir. 1991) (en banc) ........................ 4

Marks v. United States

430 U.S. 188 (1977) .................................................... 4, 7

Nat’l Ass’n of Mfrs. v. Dep’t of Def.

138 S. Ct. 617 (2018) .................................................... 15

Navajo Nation v. Regan

No. 20-CV-602-MV/GJF, 2021 WL

4430466 (D.N.M. Sept. 27, 2021)................................. 14

North Dakota v. U.S. E.P.A.

127 F. Supp. 3d 1047 (D.N.D. 2015) ............................ 14

Pascua Yaqui Tribe v. U.S. EPA

No. CV-20-00266-TUC-RM, 2021 WL

3855977 (D. Ariz. 2021) ............................................... 14

Precon Dev. Corp. v. U.S. Army Corps of

Eng’rs

633 F.3d 278 (4th Cir. 2011) .......................................... 6

Rapanos v. United States

547 U.S. 715 (2006) .............................................. passim

vi

Sackett v. U.S. EPA

566 U.S. 120 (2012) ...................................................... 19

Sackett v. U.S. EPA

8 F.4th 1075 (9th Cir. 2021) .......................................... 5

Simsbury-Avon Pres. Soc’y, LLC v. Metacon

Gun Club, Inc.

472 F. Supp. 2d 219, 227 (D. Conn. 2007);

575 F.3d 199 (2d Cir. 2009) ........................................... 9

Solid Waste Agency of Northern Cook County

v. United States Army Corps of Engineers

531 U.S. 159 (2001) ...................................................... 12

Texas v. U.S. EPA

389 F. Supp. 3d 497 (S.D. Tex. 2019) .......................... 13

U.S. Army Corps of Eng’rs v. Hawkes Co.

578 U.S. 590 (2016) ................................................ 17, 18

United States v. Acquest Transit LLC

No. 09-CV-00055S(F), 2018 WL 3861612

(W.D.N.Y. Aug. 14, 2018) ............................................... 8

United States v. Bailey

571 F.3d 791 (8th Cir. 2009) .......................................... 6

United States v. Cundiff

555 F.3d 200 (6th Cir. 2009) .......................................... 6

vii

United States v. Donovan

No. 96–484–JJF (MPT), 2010 WL

3000058, at *1 (D. Del. July 23, 2010); No.

CIV.A. 96-484-LPS, 2010 WL 3614647 (D.

Del. Sept. 10, 2010); aff’d, 661 F.3d 174

(3d Cir. 2011) ................................................................ 19

United States v. Gerke Excavating, Inc.

464 F.3d 723 (7th Cir. 2006) (per curiam) .................... 5

United States v. Johnson

467 F.3d 56 (1st Cir. 2006) .................................. passim

United States v. Lucas

516 F.3d 316 (5th Cir. 2008) .......................................... 6

United States v. Robison

505 F.3d 1208 (11th Cir. 2007) .................................. 5, 7

United States v. Vierstra

803 F. Supp. 2d 1166 (D. Idaho 2011),

aff’d, 492 F. App’x 738 (9th Cir. 2012) .......................... 9

FEDERAL STATUTES

33 U.S.C. § 1319(c)(1) ........................................................ 19

33 U.S.C. § 1321(b)–(d) ..................................................... 19

Federal Civil Penalties Inflation Adjustment

Act ................................................................................. 19

FEDERAL REGULATIONS

80 Fed. Reg. 37,054 (June 29, 2015) ........................... 10, 13

viii

84 Fed. Reg. 56,626 (Oct. 22, 2019) .................................. 14

85 Fed. Reg. 22,250 (Apr. 21, 2020) ............................ 10, 14

85 Fed. Reg. 83,818 (Dec. 23, 2020) .................................. 19

ARTICLES AND PUBLICATIONS

EPA & Army Corps, Memorandum re: Clean

Water Act Jurisdiction Following the U.S.

Supreme Court’s Decision in Rapanos v.

United States & Carabell v. United

States (Dec. 2008), A-45 to A-70,

https://perma.cc/JNN9-HKEG. ................................ 3, 13

U.S. Chamber of Commerce, Comment

Letter on Proposed Rule: Definition of

“Waters of the United States” Under the

Clean Water Act (Nov. 12, 2014),

https://www.regulations.gov/comment/EP

A-HQ-OW-2011-0880-14115. ....................................... 17

Waters Advocacy Coalition, Comments on

Proposed Rule to Define “Waters of the

United States” Under the Clean Water

Act (Nov. 13, 2014),

https://www.regulations.gov/comment/EP

A-HQ-OW-2011-0880-14568. ....................................... 20

ix

Waters Advocacy Coalition, Pre-Proposal

Recommendations on the Definition of

“Waters of the United States” (Sept. 3,

2021),

https://www.regulations.gov/comment/EP

A-HQ-OW-2021-0328-0316 .......................................... 20

EPA, Current Implementation of “Waters of

the United States,”

https://www.epa.gov/wotus/about-watersunited-states#Current ................................................. 15

EPA, Press Release, Army Announce Intent

to Revise Definition of WOTUS (June 9,

2021),

https://www.epa.gov/newsreleases/epaarmy-announce-intent-revise-definitionwotus............................................................................. 15

1

INTRODUCTION AND

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. The Chamber represents approximately

300,000 direct members and indirectly represents the

interests of more than three million companies and

professional organizations of every size, in every industry

sector, and from every region of the country. An important

function of the Chamber is to represent the interests of its

members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber

regularly files amicus curiae briefs in cases, like this one,

that raise issues of concern to the Nation’s business

community.

Many industries in which the Chamber’s members

operate regularly confront issues concerning the scope of

the Clean Water Act (“CWA” or “the Act”) and are

adversely affected by the lack of clarity on the reach of

federal jurisdiction under the CWA. The lack of clarity

results, in significant part, from this Court’s jurisprudence.

Without clear guidance from this Court, the Chamber’s

members will continue to endure an expensive, vague, and

time-consuming process whenever they need to determine

All parties, including counsel for Respondents, received

timely notice of the intent of the Chamber of Commerce of the United

States of America to file this brief under Rule 37(2)(a) and have

consented to the filing of this brief. Pursuant to Supreme Court Rule

37.6, amicus curiae states that no counsel for any party authored this

brief in whole or in part and no entity or person, aside from amicus

curiae, its members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

1

2

whether a project or activity will impact waters subject to

federal jurisdiction under the CWA. Indeed, the

substantial burdens that this uncertainty causes,

including the expense of this regulatory process and

exorbitant potential penalties for even inadvertent

violations of the Act, often lead the Chamber’s members to

avoid or abandon valuable activities and projects

altogether.

SUMMARY OF ARGUMENT

This Court’s review is necessary to clarify the applicable

scope of federal jurisdiction under the CWA and to

eliminate the confusion resulting from this Court’s

fractured decision in Rapanos v. United States, 547 U.S.

715 (2006). The entrenched split of authority over the

meaning of Rapanos has created regulatory uncertainty as

the lower courts, the U.S. Environmental Protection

Agency (“EPA”), and the U.S. Army Corps of Engineers

(collectively “the agencies”) have been unable to agree on

which Rapanos test to apply and how to apply it. The

agencies have attempted, without success, to promulgate

regulations to provide more clarity. The result is a

regulatory framework lacking in uniformity and

predictability.

Regulatory certainty is always desirable. But it is

particularly important with respect to the scope of federal

jurisdiction under the CWA. Without certainty and

predictability businesses and individuals are left with little

to help them decide between undergoing the expense and

time required to navigate the permit process, on the one

hand, and risking the substantial penalties imposed for

discharging pollutants without a permit, on the other. As a

3

result, important activities and projects—including

projects needed to upgrade our nation’s infrastructure, feed

Americans, and meet our nation’s energy needs—are often

delayed or may be abandoned altogether.

As the agencies begin another round of rulemaking with

uncertain prospects, now is the time for this Court to step

in to provide clarity. Rapanos has proven an unworkable

foundation for building a rule that defines jurisdictional

waters. The absence of a clearly discernible controlling

opinion and the vagueness of the significant nexus test

mean that lower courts have taken, and continue to take, a

variety of different views of the meaning of Rapanos. That

in turn has created a highly unproductive cycle: agencies

attempt to create a rule defining “waters of the United

States” consistent with Rapanos; a court somewhere in the

country declares the rule unlawful based on its reading of

Rapanos; and the agencies default to the 1980s regulations

as interpreted by the agencies’ 2008 Rapanos guidance

document2 (which all agree provides little in the way of

actual guidance). All the while, project proponents are left

to try to guess which “waters of the United States”

definition will apply and how the agencies will apply it for

their projects and activities.

This Court’s intervention is necessary to break this

cycle. This Court can provide clarity and consistency by

granting review and adopting a test for CWA jurisdiction

that is consistent with the text of the CWA and provides a

EPA & Army Corps, Memorandum re: Clean Water Act

Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos

v. United States & Carabell v. United States (Dec. 2008), A-45 to A-70,

https://perma.cc/JNN9-HKEG.

2

4

workable and durable framework for the regulatory

process. Resolving this long-standing conflict in the lower

courts over the reach of the CWA will finally end the yearslong confusion stemming from the Court’s Rapanos

decision and provide much-needed predictability to

regulated parties.

REASONS FOR GRANTING THE PETITION

I.

This Court’s Review Is Necessary To Clarify

The Applicable Scope Of Federal Jurisdiction

Under The CWA And To Eliminate The

Confusion Resulting From Rapanos.

A.

The

fractured

Rapanos

decision

continues

to

create

regulatory

uncertainty and lower court divisions.

As the Petition demonstrates, lower courts have been

divided for nearly fifteen years regarding the test

established in Rapanos. Pet. 17–20. That division results

from the fact that this Court’s “Marks [test for deciphering

cases that lack a majority] does not translate easily” to

Rapanos. United States v. Johnson, 467 F.3d 56, 64 (1st

Cir. 2006). Marks provides that “[w]hen a fragmented

Court decides a case and no single rationale explaining the

result enjoys the assent of five Justices, the holding of the

Court may be viewed as that position taken by those

Members who concurred in the judgments on the

narrowest grounds.” Marks v. United States, 430 U.S. 188,

193 (1977) (internal quotation marks and citation omitted).

But this approach is “workable . . . only when one opinion

is a logical subset of other, broader opinions.” King v.

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).

5

The “narrowest grounds” standard is difficult to apply

to Rapanos. The cases where Justice Kennedy would find

jurisdiction are not a subset of the cases in which the

broader plurality would find jurisdiction. Johnson, 467

F.3d at 64. For example, in cases where there is a small

surface water connection, the plurality’s test would be

satisfied even though there might not be a significant

nexus under Justice Kennedy’s test. Ibid. Indeed, Justice

Kennedy highlighted that under the plurality’s test for

reasonably permanent waters, “[t]he merest trickle, if

continuous,” could be subject to federal jurisdiction, even

though it may not be significant for downstream water

quality. 547 U.S. at 769.

As a result, courts have disagreed as to which Rapanos

test controls. Some hold that the significant nexus test

from Justice Kennedy’s concurrence applies. See, e.g.,

Sackett v. U.S. EPA, 8 F.4th 1075, 1088–89 (9th Cir. 2021);

United States v. Robison, 505 F.3d 1208, 1221–22 (11th Cir.

2007); United States v. Gerke Excavating, Inc., 464 F.3d

723, 724 (7th Cir. 2006) (per curiam). For example, the

Seventh Circuit explained that Justice Kennedy’s

understanding is narrower than the Rapanos plurality’s

understanding “in most cases, though not in all.” Gerke

Excavating, Inc., 464 F.3d at 724–25. Thus, the court

concluded that “as a practical matter the Kennedy

concurrence is the least common denominator.” Ibid.

At the same time, following Justice Stevens’s dissent in

Rapanos, other circuits allow the government to meet

either the plurality’s test or Justice Kennedy’s test.

Rapanos, 547 U.S. at 810 n.14 (Stevens, J., dissenting)

(observing that “Justice Kennedy’s approach will be

6

controlling in most cases” but, where it is not, courts should

find jurisdiction under the plurality’s approach). See, e.g.,

United States v. Donovan, 661 F.3d 174, 176 (3d Cir. 2011);

United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009);

Johnson, 467 F.3d at 60. For example, the First Circuit,

“[f]ollowing Justice Stevens’s instruction,” concluded that

applying one test and then the other “ensures that lower

courts will find jurisdiction in all cases where a majority of

the Court would support such a finding.” Johnson, 467 F.3d

at 64.

Worse still, the Fourth, Fifth, and Sixth Circuits have

not identified any governing standard from Rapanos. In

some cases, these circuits effectively require landowners to

disprove jurisdiction under both the plurality and Kennedy

tests. See Precon Dev. Corp. v. U.S. Army Corps of Eng’rs,

633 F.3d 278, 288 (4th Cir. 2011); United States v. Lucas,

516 F.3d 316, 325–27 (5th Cir. 2008); United States v.

Cundiff, 555 F.3d 200, 210 (6th Cir. 2009).3 In others,

these circuits simply apply the standard agreed to by the

parties. Compare Precon Dev. Corp., 633 F.3d at 288 (“The

parties here agree that Justice Kennedy’s ‘significant

nexus’ test governs . . . .”), with Deerfield Plantation Phase

II-B Prop. Owners Ass’n v. U.S. Army Corps of Eng’rs,

Charleston Dist., 501 F. App’x 268, 273 (4th Cir. 2012) (per

curiam) (“[T]he parties agreed that if either test was

satisfied, the Contested Waters qualified as ‘waters of the

United States.’”).

This Court’s intervention is warranted to correct this

confusion. Its fractured decision has led the meaning of

In the Fifth Circuit, a landowner may even have to disprove

jurisdiction under the dissent as well. See Lucas, 516 F.3d at 325–27.

3

7

“waters of the United States” to vary from circuit to circuit.

That serious lack of uniformity creates challenges for

regulators and companies operating in multiple

jurisdictions. It also complicates agency efforts to write a

nationwide rule that provides some measure of uniformity

and that can survive judicial review.

Further percolation is not likely to resolve the issue.

The lower courts have been grappling with the difficult

task of interpreting Rapanos for fifteen years. Nearly every

circuit has now had occasion to examine the question. And

in the case of the Ninth Circuit, the court has revisited the

question multiple times: first adopting the significant

nexus test, then considering that jurisdiction might be

permissible under the plurality opinion too, and finally

returning, here, to reliance on the significant nexus test.

Pet. 18–19.

The lower courts have also had the opportunity to

consider and respond to each other. For example, in

adopting Justice Kennedy’s concurrence as the controlling

test, the Eleventh Circuit expanded on one notable critique

of the First Circuit’s approach. Robison, 505 F.3d at 1221–

22. In the Eleventh Circuit’s view, “Marks does not direct

lower courts interpreting fractured Supreme Court

decisions to consider the positions of those who dissented,”

but only the positions of “those who ‘concurred in the

judgment.’” Id. at 1221 (quoting Marks, 430 U.S. at 193).

The Eleventh Circuit concluded that the First Circuit had

erred in “allow[ing] the dissenting Rapanos Justices to

carry the day and impose an ‘either/or’ test.” Ibid.

8

B.

Courts and agencies struggle to apply

the significant nexus standard with any

degree of uniformity and predictability.

Another cause of the uncertainty and unpredictability

of “waters of the United States” determinations is that

agencies may stretch the meaning of the significant nexus

test to fit their policy goals. Under the significant nexus

standard, a wetland may qualify as “navigable waters” if

it, alone or in combination with similarly situated lands in

a region, significantly affects the chemical, physical, and

biological integrity of federally protected waters. Rapanos,

547 U.S. at 780 (Kennedy, J., concurring in the judgment).

In contrast, when the effects on water quality are

“speculative or insubstantial,” a wetland is deemed nonnavigable. Ibid. But as the Rapanos plurality noted, a

fundamental problem with this test is that it does not

clearly distinguish between when a wetland “significantly”

affects covered waters and when the effects are

“speculative or insubstantial.” Id. at 756 n.15 (plurality

opinion).

The standard is thus difficult to apply with any

certainty

and

predictability—and

susceptible

to

manipulation—because it turns on a highly subjective

evaluation of when an effect is significant and what it

means to affect the chemical, physical, and biological

integrity of covered waters. As one court observed, the

significant nexus standard is often “too nebulous” to

determine whether particular wetlands are understood as

navigable. United States v. Acquest Transit LLC, No. 09CV-00055S(F), 2018 WL 3861612, at *31 (W.D.N.Y. Aug.

14, 2018). What is more, “the ensuing analysis of each

concept,

e.g.,

finding

a

‘significant

biological’

9

impact . . . renders this standard more subjective and,

thus, prone to, at best, simple error, and at worse, bias and

deliberate ‘weaponization’ by” the agencies. Ibid.

Furthermore, although Justice Kennedy’s significant

nexus test was conceived in the context of evaluating

jurisdiction for wetlands, some courts have applied it to

features that are not wetlands. Compare Benjamin v.

Douglas Ridge Rifle Club, 673 F.Supp.2d 1210, 1215, n.2

(D. Or. 2009) (“Justice Kennedy limits the applicability of

his legal standard to wetlands adjacent to jurisdictional

waters.”), and Simsbury-Avon Pres. Soc’y, LLC v. Metacon

Gun Club, Inc., 472 F. Supp. 2d 219, 227 (D. Conn. 2007)

(“[T]he Court considers whether the . . . site is a ‘wetland’

to which the Rapanos analysis is applicable.”), aff’d on

other grounds sub nom. Simsbury-Avon Pres. Club, Inc. v.

Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009), with

Envtl. Prot. Info. Ctr. v. Pacific Lumber Co., 469 F. Supp.

2d 803, 823 (N.D. Cal. 2007) (analyzing CWA jurisdiction

over a non-navigable tributary using the significant nexus

standard). Out of an “abundance of caution,” for example,

some courts have used the significant nexus standard when

the agencies assert jurisdiction over a tributary. See

United States v. Vierstra, 803 F. Supp. 2d 1166, 1171–72

(D. Idaho 2011), aff’d, 492 F. App’x 738 (9th Cir. 2012).

As a result, this “seemingly opaque” test “leaves the

door open to continued federal overreach,” Johnson, 467

F.3d at 66 (Torruella, J., concurring in part and dissenting

in part), of a type that both the plurality and Justice

Kennedy rejected. Though the Rapanos plurality and

Justice Kennedy did not agree on the specific tests for CWA

jurisdiction, both found that the agencies had gone too far

in asserting that CWA jurisdiction extends to any non-

10

navigable water that has a “mere hydrologic connection” to

navigable waters. And both the plurality and Justice

Kennedy articulated principles intended to limit CWA

jurisdiction.4 But as the plurality observed, the significant

nexus test’s “unverifiable standard is not likely to

constrain an agency whose disregard for the statutory

language has been so long manifested.” Rapanos, 547 U.S.

at 757, n.15 (plurality opinion). Indeed, the plurality’s

prediction has now been borne out. The agencies have

stretched the significant nexus concept far enough to assert

jurisdiction over features like the remote waterbodies that

Justice Kennedy found were “little more related to

navigable-in-fact waters than were the isolated ponds [that

the Court had previously] held to fall beyond the Act’s

scope.” Id. at 781-82 (Kennedy, J., concurring in the

judgment).

In the end, the significant nexus standard has not

provided clear guidance to administrations of either party.

The Obama Administration’s 2015 Clean Water Rule, 80

Fed. Reg. 37,054 (June 29, 2015), relied on Justice

Kennedy’s significant nexus test, while the Trump

Administration’s 2020 Navigable Waters Protection Rule,

85 Fed. Reg. 22,250 (Apr. 21, 2020) relied on both Justice

Kennedy’s significant nexus test and the plurality’s test.

Each change in administration has resulted in the adoption

of a new—and, under current law, vulnerable—framework

4 See Rapanos, 547 U.S. at 731–32 (explaining that the CWA

“cannot bear the expansive meaning that the Corps would give it”)

(plurality opinion); Id. at 781 (Kennedy, J., concurring in the judgment)

(noting “the breadth” of the Corps’ interpretation that “seems to leave

wide room for regulation of drains, ditches, and streams remote from

any navigable-in-fact water and carrying only minor water volumes

toward it”).

11

for CWA jurisdiction, as discussed in more detail below.

That is not conducive to the regulatory certainty that is

required in such an important area of the law.

C.

This Court should adopt an

interpretation of the Clean Water Act

that provides greater clarity and

consistency than was provided by

Rapanos.

This brief does not opine on the ultimate question of

what legal standard should be adopted in replacing

Rapanos. But any such test should satisfy three basic

criteria. First, the test should be consistent with the text of

the CWA. Second, the test should be workable; it should be

a standard that can be implemented with greater

predictability than the significant nexus test. Third, the

test should respect proper constitutional limits on federal

authority.

First, the Court should adopt a standard that accords

with the statutory text. With respect, Justice Kennedy’s

approach not only “misread[]” the Court’s prior decisions

but also “ignor[ed] the text of the statute.” Rapanos, 547

U.S. at 754–55 (plurality opinion). The Court should adopt

an approach that is instead grounded in the statute,

including all relevant provisions, applying “this Court’s

canons of construction.” See id. at 731–32, 739.

Second, the Court should adopt an approach that

provides direction and is easier for courts, regulators, and

property owners to apply. For example, under the standard

set forth in the plurality opinion in Rapanos, wetlands are

covered by the CWA if they satisfy two criteria: (1) whether

12

“a relatively permanent body of water [is] connected to

traditional interstate navigable waters” and (2) whether

“the wetland has a continuous surface connection with that

water.” Id. at 742. The plurality then provided clear

guidance as to when a water is “permanent” and when a

“continuous surface connection” is present. Id. at 733, n.5.

Finally, unlike an approach where “whatever affects

waters is waters,” id. at 757, the Court should adopt a test

for regulatory jurisdiction that respects “the proper

constitutional limit on federal regulation.” Johnson, 467

F.3d at 66 (Torruella, J., concurring in part and dissenting

in part). In interpreting a fundamental precondition to the

assertion of federal power under the Clean Water Act, this

Court must “strike[] a constitutional balance between

federal and state regulatory interests, and our nation’s

interest in clean water and the individual land owner’s

right to manage their property in accordance with their

dreams and aspirations, whether economic or otherwise.”

Id. at 66–67. That is what this Court did in Solid Waste

Agency of Northern Cook County v. United States Army

Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), and it

should do so again here.

13

II.

Before The Agencies Promulgate Another

Rulemaking, This Court Should Provide

Clarity to Eliminate the Confusion Caused by

Rapanos.

A.

Rapanos has proven an unworkable

foundation for durable rulemaking.

Over the past 15 years, the agencies have tried to define

“waters of the United States” consistent with Rapanos, but

they have had little success in doing so.

Following Rapanos, the agencies issued a guidance

document that sought to provide some guidelines for

making case-by-case significant nexus determinations.5

But, as the Petition explains, the guidance document has

provided very little in the way of actual guidance and has

not resulted in consistent, predictable jurisdictional

determinations. Pet. at 21.

Then in 2015, the agencies issued a rule asserting

categorical jurisdiction over certain features based on the

significant nexus standard. 80 Fed. Reg. at 37,057. Two

federal district courts found the rule unlawful and

remanded it to the agencies. Texas v. U.S. EPA, 389 F.

Supp. 3d 497 (S.D. Tex. 2019); Georgia v. Wheeler, 418 F.

Supp. 3d 1336 (S.D. Ga. 2019). While litigation was

pending, the rule was also preliminarily enjoined by

multiple district courts. See Georgia v. Pruitt, 326 F. Supp.

EPA & Army Corps, Memorandum re: Clean Water Act

Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos

v. United States & Carabell v. United States (Dec. 2008), A-45 to A-70,

https://perma.cc/JNN9-HKEG.

5

14

3d 1356, 1370 (S.D. Ga. 2018) (staying operation of the

Rule in Georgia, Alabama, Florida, Indiana, Kansas,

Kentucky, North Carolina, South Carolina, Utah, West

Virginia, and Wisconsin); North Dakota v. U.S. E.P.A., 127

F. Supp. 3d 1047 (D.N.D. 2015) (staying operation of the

Rule in North Dakota, Alaska, Arizona, Arkansas,

Colorado, Idaho, Missouri, Montana, Nebraska, Nevada,

New Mexico, South Dakota, and Wyoming). As a result,

more than half the states continued to operate under the

pre-Rapanos regulations as implemented by the 2008

guidance.

With a new administration in 2017, the agencies went

back to the drawing board. On October 22, 2019, the

agencies rescinded the 2015 Rule and reinstated the preRapanos regulations as informed by the 2008 guidance

document. Definition of ‘‘Waters of the United States’’—

Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626

(Oct. 22, 2019). In 2020, the agencies issued the Navigable

Waters Protection Rule, which the agencies designed to be

consistent with both the plurality’s test and Justice

Kennedy’s test. See 85 Fed. Reg. at 22,262. After the rule

was challenged in federal district court, the court vacated

and remanded the rule to the agencies without evaluation

of the merits of the challenges to the 2020 Rule, even

though the Department of Justice had merely requested

remand without vacatur. Pascua Yaqui Tribe v. U.S. EPA,

No. CV-20-00266-TUC-RM, 2021 WL 3855977, at *5 (D.

Ariz. 2021); see also Navajo Nation v. Regan, No. 20-CV602-MV/GJF, 2021 WL 4430466, at *5 (D.N.M. Sept. 27,

2021) (similarly vacating and remanding 2020 rule, despite

Department of Justice request for remand without

vacatur); compare California v. Regan, No. 20-CV-03005-

15

RS, 2021 WL 4221583, at *1 (N.D. Cal. Sept. 16, 2021)

(remanding 2020 Rule without vacatur; finding that

vacatur question was moot in light of Pascua Yaqui Tribe

decision, but opining that vacatur would be inappropriate

without consideration of the merits of the challenges to the

2020 Rule).

The agencies have announced that they have now

halted implementation of the rule and are again

interpreting “waters of the United States” according to the

pre-Rapanos regulations as informed by the 2008

guidance.6 And they have announced their intent to initiate

(again) a new rulemaking process to revise the definition of

“waters of the United States.”7 In the meantime, regulators

and applicants have had to abruptly pivot to a different

regulatory regime for pending permit applications and

jurisdictional determinations that were already in

progress.

This new rulemaking seems likely to meet the same

obstacles that stymied the previous regulations. The

sweeping impact of the definition means that any rule will

almost certainly face legal challenges in district courts

throughout the country. See Nat’l Ass’n of Mfrs. v. Dep’t of

Def., 138 S. Ct. 617, 624 (2018) (challenges to rules defining

“waters of the United States” must be filed in the first

instance in federal district courts). And because the

meaning of Rapanos is so unclear, even if the agencies’ new

6

EPA, Current Implementation of “Waters of the United States,”

https://www.epa.gov/wotus/about-waters-united-states#Current, last visited Oct.

18, 2021.

7

Press Release, EPA, Army Announce Intent to Revise Definition of

WOTUS (June 9, 2021), https://www.epa.gov/newsreleases/epa-army-announceintent-revise-definition-wotus, last visited Oct. 18, 2021.

16

rule seeks to faithfully implement Rapanos, there are

bound to be courts that disagree with the agencies’

application. Before appeals of such courts’ rulings can work

their way through the courts of appeals and to this Court,

the agencies will move on to the next rulemaking. And the

standard will yet again revert to the pre-Rapanos

regulations as interpreted by the 2008 guidance, and

stakeholders will be left in the same uncertain position

they have been in for the last 15 years.

Only this Court can break this cycle. All of this stems

from Rapanos, which the agencies and lower courts are

bound to attempt to follow. If this Court does not step in,

there is no reason to believe that the cycle can or will

change. If so, the agencies, lower courts, and stakeholders

remain trapped in what might fairly be described as the

water regulatory version of Groundhog Day8— fated to

repeat the same series of events over and over again.

B.

Project proponents require regulatory

certainty to predict the scope of federal

jurisdiction under the CWA.

Project proponents, in particular, need clarity now and

should not be left to slog through another fruitless cycle of

rulemaking and judicial challenges.

Parties generally have three options if they suspect that

a project could impact areas subject to CWA jurisdiction.

Landowners can abandon the use of their land. They can

complete the permit process and appeal if a permit is

denied. Or they can develop their property without a

8

GROUNDHOG DAY (Columbia Pictures 1993).

17

permit and challenge the agency’s authority if it issues a

compliance order or commences a civil enforcement action.

But in any case, the costs are significant and often

“prohibitive.” Hawkes Co. v. U.S. Army Corps of Eng’rs, 782

F.3d 994, 1001 (8th Cir. 2015), aff’d, 578 U.S. 590 (2016).

Those who apply for a permit face a process that is often

arduous, expensive, and long. U.S. Army Corps of Eng’rs v.

Hawkes Co., 578 U.S. 590, 594–95 (2016). Fifteen years

ago, this Court observed that “[t]he average applicant for

an individual permit spends 788 days and $271,596 in

completing the process, and the average applicant for a

nationwide permit spends 313 days and $28,915—not

counting costs of mitigation or design changes.” Rapanos,

547 U.S. at 721 (plurality opinion) (citation omitted). These

numbers were also cited in this Court’s 2016 Hawkes

decision, 578 U.S. at 594–95, but in the wake of Rapanos

and the increased uncertainty in determining jurisdiction,

those numbers have no doubt continued to increase.

“Besides the cost and time required for the permit itself,

companies may be required to comply with costly and

resource-intensive mitigation/restoration requirements. In

some cases, the cost of mitigation will exceed the cost of the

project itself.” U.S. Chamber of Commerce, Comment

Letter on Proposed Rule: Definition of “Waters of the

United States” Under the Clean Water Act, at 11 (Nov. 12,

2014).9 And when project proponents pursue a permit

unnecessarily because the scope of jurisdiction is not clear,

“they can never recover the time and money lost in seeking

a permit they were not legally obligated to obtain.” Hawkes

Co., 782 F.3d at 1001.

https://www.regulations.gov/comment/EPA-HQ-OW-20110880-14115.

9

18

These costs are amplified by the fact that the 2008

Rapanos guidance, which has been in effect for most of the

last fifteen years, requires a case-by-case significant nexus

analysis for many features. These case-by-case analyses

are resource-intensive for both regulators and permittees,

requiring expert consultants at substantial costs. For

example, this Court noted that the cost to undertake water

analyses “alone would cost more than $100,000.” See

Hawkes Co., 578 U.S. at 601. These expert reports from

environmental consultants have become commonplace in

CWA jurisdiction cases. See, e.g., Benjamin, 673 F. Supp.

2d at 1212 (“Each party employed environmental

consultants to perform wetland delineations on the

property . . . and each contends that the delineation

submitted by the opposing party is inaccurate.”).

Those who do not undergo the burdensome permitting

process instead face the risk of significant penalties

imposed for violations of the CWA. As this Court

recognized, “[t]he burden of federal regulation on those who

would deposit fill material in locations denominated

‘waters of the United States’ is not trivial,” even for those

who are unaware that they are discharging into a “waters

of the United States.” Rapanos, 547 U.S. at 721 (plurality

opinion). A single negligent violation of the Act can result

in imprisonment for up to one year. 33 U.S.C. § 1319(c)(1).

A second negligent violation may subject a person to

imprisonment for up to two years. Ibid.

The CWA provides for substantial monetary penalties

as well. The CWA lists the pre-inflation maximum

amounts for different classes of civil and criminal

penalties, 33 U.S.C. § 1321(b)–(d), as well as a minimum

19

amount of ‘‘not less than $100,000” for grossly negligent or

willful violations. Id. at 1321(b)(7)(D). Since 1996, federal

agencies have adjusted the statutory civil monetary

penalties for inflation under the Federal Civil Penalties

Inflation Adjustment Act. Civil Monetary Penalty Inflation

Adjustment, 40 C.F.R. pt. 19, 85 Fed. Reg. 83,818 (Dec. 23,

2020). Initially, agencies made the adjustments every four

years. Since 2017, however, EPA began to adjust inflation

on an annual basis. 85 Fed. Reg. at 83,818. Now, EPA can

seek up to an amount of $56,460 each day for each civil

violation in addition to criminal penalties. 40 C.F.R. § 19.4

Tbl. 1, 85 Fed. Reg. at 83,820 Tbl. 1. And civil liability can

accrue for “each day [the regulated party] wait[s] for the

Agency to drop the hammer.” Sackett v. U.S. EPA, 566 U.S.

120, 127 (2012).

In sum, EPA has wide discretion in the penalties it can

seek in enforcement actions, and those penalties can be

crippling. See, e.g., Catskill Mountains Chapter of Trout

Unlimited, Inc. v. U.S. EPA, 846 F.3d 492, 508 (2d Cir.

2017) ($5,749,000 civil penalty and order to obtain permit

to transfer turbid water through tunnel); United States v.

Donovan, No. 96–484–JJF (MPT), 2010 WL 3000058, at *1

(D. Del. July 23, 2010), report and recommendation

adopted, No. CIV.A. 96-484-LPS, 2010 WL 3614647 (D.

Del. Sept. 10, 2010), aff’d, 661 F.3d 174 (3d Cir. 2011)

($256,000 civil penalty and restoration order); Foster v.

U.S. EPA, No. 14-16744, 2017 WL 3485049, at *4 (S.D. W.

Va. Aug. 14, 2017) (“$414,000 penalty and [order to]

remediate [s]ite, or face enforcement litigation and more

penalties”).

The end result is that a wide variety of commercial

activities may not be undertaken at all, or may be

20

abandoned after they are initiated. Put simply,

“jurisdictional uncertainty increases paperwork, costs, and

time, while decreasing a business’ willingness to invest.”

Waters Advocacy Coalition, Comments on Proposed Rule to

Define “Waters of the United States” Under the Clean

Water Act, at 65 (Nov. 13, 2014).10

And the impact of such uncertainty is widespread, as

the CWA affects “a broad range of ordinary industrial and

commercial activities.” Hanousek v. United States, 528 U.S.

1102, 1103 (2000) (Thomas, J., dissenting from denial of

certiorari). Indeed, a clear definition of the CWA’s scope “is

necessary to promote modern infrastructure development,”

consistent with President Biden’s ambitious climate,

sustainability, and infrastructure priorities. Waters

Advocacy Coalition, Pre-Proposal Recommendations on the

Definition of “Waters of the United States” at 8-9 (Sept. 3,

2021).11 “Unclear definitions that depend on case-by-case

‘significant nexus’ determinations, or otherwise overly

expansive definitions, threaten to frustrate that agenda by

injecting uncertainty, inconsistency, and delays into

project planning and permitting.” Id.

In short, project proponents need clarity today on the

scope of the CWA, so that they can know what rules will

govern their projects and activities tomorrow and can plan

their conduct accordingly. Only this Court can provide that

clarity.

https://www.regulations.gov/comment/EPA-HQ-OW-20110880-14568.

11

https://www.regulations.gov/comment/EPA-HQ-OW-20210328-0316.

10

21

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

HUNTON ANDREWS KURTH LLP

ELBERT LIN

Counsel of Record

951 East Byrd Street, East Tower

Richmond, VA 23219

elin@HuntonAK.com

(804) 788-8200

KERRY L. MCGRATH

ERICA N. PETERSON

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Avenue, NW,

Suite 900

Washington, D.C. 20037

(202) 955-1500

Andrew R. Varcoe

Stephanie A. Maloney

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, D.C. 20062

(202) 463-5337

Counsel for Amicus Curiae

October 25, 2021