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.

U.S. 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 AMICI CURIAE STATES OF WEST

VIRGINIA AND 20 OTHER STATES

IN SUPPORT OF PETITIONER

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

DAVID C. TRYON*

MICHAEL R. WILLIAMS**

Special Counsel

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed at end]

QUESTION PRESENTED

Should Rapanos v. United States, 547 U.S. 715 (2006),

be revisited to adopt the plurality’s test for wetlands

jurisdiction under the Clean Water Act?

II

TABLE OF CONTENTS

Question Presented .............................................................. I

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 5

I.

The Court Should Grant The Petition To

Restore Respect For States’ Water Rights ............... 5

II. The Court Should Grant The Petition To

Resolve The Chronic Confusion Over

The CWA’s Division Of State And Federal

Jurisdiction .................................................................. 13

III. The Court Should Reverse The Ninth

Circuit’s All-Encompassing View Of Federal

Water Jurisdiction ...................................................... 20

Conclusion ........................................................................... 23

III

TABLE OF AUTHORITIES

Page(s)

Cases

Addington v. Texas,

441 U.S. 418 (1979) ......................................................... 5

Alden v. Maine,

527 U.S. 706 (1999) ......................................................... 5

Am. Paper Inst., Inc. v. EPA,

890 F.2d 869 (7th Cir. 1989) ........................................... 9

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ........................................................... 2

Atl. States Legal Found., Inc. v. Tyson

Foods, Inc.,

897 F.2d 1128 (11th Cir. 1990) ..................................... 19

Baccarat Fremont Devs., LLC v. U.S.

Army Corps of Eng’rs,

425 F.3d 1150 (9th Cir. 2005) ....................................... 11

Bond v. United States,

572 U.S. 844 (2014) ......................................................... 5

Cal. Sportfishing Prot. Alliance v. Chico

Scrap Metal, Inc.,

124 F. Supp. 3d 1007 (E.D. Cal. 2015) ................... 10-11

California v. United States,

438 U.S. 645 (1978) ..................................................... 1, 5

IV

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(continued)

Page(s)

Clark v. Martinez,

543 U.S. 371 (2005) ....................................................... 22

District of Columbia v. Schramm,

631 F.2d 854 (D.C. Cir. 1980) ........................................ 9

FERC v. Mississippi,

456 U.S. 742 (1982) ......................................................... 5

Hudson Cnty. Water Co. v. McCarter,

209 U.S. 349 (1908) ......................................................... 1

Kansas v. Nebraska,

574 U.S. 445 (2015) ......................................................... 1

Marks v. United States,

430 U.S. 188 (1977) ....................................................... 15

McCreary Cnty., Ky. v. ACLU of Ky.,

545 U.S. 844 (2005) ....................................................... 22

N. Cal. River Watch v. City of Healdsburg,

496 F.3d 993 (9th Cir. 2007) ......................................... 10

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ..................................................... 14

Nat’l Wildlife Fed’n v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) ...................................... 10

New York v. United States,

505 U.S. 144 (1992) ......................................................... 2

V

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(continued)

Page(s)

North Dakota v. EPA,

127 F. Supp. 3d 1047 (D.N.D. 2015)............................ 16

Rapanos v. United States,

547 U.S. 715 (2006) ...... 3, 4, 10, 12, 14, 18, 20, 21, 22, 23

S.D. Warren Co. v. Maine Bd. of Env’t Prot.,

547 U.S. 370 (2006) ......................................................... 9

Sackett v. EPA,

566 U.S. 120 (2012) ....................................................... 12

Sackett v. EPA,

8 F.4th 1075 (9th Cir. 2021) ................................... 20, 21

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) ......................................................... 5

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .......................................... 5-6, 10, 14

Sporhase v. Nebraska ex rel. Douglas,

458 U.S. 941 (1982) ......................................................... 2

Tarrant Reg’l Water Dist. v. Herrmann,

569 U.S. 614 (2013) ......................................................... 1

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

136 S. Ct. 1807 (2016) ............................................. 12, 16

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

United States Forest Serv. v. Cowpasture

River Pres. Ass’n,

140 S. Ct. 1837 (2020) ................................................... 22

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009) ......................................... 15

United States v. Gulf Park Water Co.,

14 F. Supp. 2d 854 (S.D. Miss. 1998) .......................... 19

United States v. HVI Cat Canyon, Inc.,

314 F. Supp. 3d 1049 (C.D. Cal. 2018) ........................ 10

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) ........................................... 16

United States v. Lippold,

No. 06-30002, 2007 WL 3232483

(C.D. Ill. Oct. 31, 2007) ................................................. 12

United States v. Lucero,

989 F.3d 1088 (9th Cir. 2021) ....................................... 22

United States v. New Mexico,

438 U.S. 696 (1978) ......................................................... 1

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985) ....................................................... 14

United States v. Robison,

521 F. Supp. 2d 1247 (N.D. Ala. 2007) ........................ 15

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013) ....................................................... 21

Statutes

33 U.S.C. § 701-1 ................................................................... 2

33 U.S.C. § 1251 .......................................................... 2, 9, 22

33 U.S.C. § 1311 .................................................................. 17

33 U.S.C. § 1315 .................................................................. 17

33 U.S.C. § 1341 .................................................................. 17

33 U.S.C. § 1342 ............................................................ 10, 16

33 U.S.C. § 1362 .............................................................. 2, 20

Ariz. Rev. Stat. § 45-101....................................................... 6

Ariz. Rev. Stat. § 45-401....................................................... 7

Ariz. Rev. Stat. § 45-704....................................................... 7

Ariz. Rev. Stat. § 49-201....................................................... 6

Ark. Code § 15-22-906 .......................................................... 7

Ark. Code § 15-22-1007 ........................................................ 6

Fla. Stat. § 373.019 ............................................................... 6

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Fla. Stat. § 373.414 ............................................................... 6

Fla. Stat. § 403.062 ............................................................... 7

Fla. Stat. § 403.088 ............................................................... 6

Fla. Stat. § 403.623 ............................................................... 7

Ind. Code § 13-18-22-1 ......................................................... 6

Ind. Code § 13-18-22-11 ....................................................... 6

Iowa Code § 455B.171 .......................................................... 6

Iowa Code § 455B.173 .......................................................... 6

Iowa Code § 455B.176A ....................................................... 7

Iowa Code § 455B.186 .......................................................... 7

Iowa Code § 455B.263 .......................................................... 7

Iowa Code § 455B.267 .......................................................... 7

Ky. Rev. Stat. § 224.700-100 ................................................ 7

Ky. Rev. Stat. § 224.700-150 ................................................ 7

Md. Code., Envir. § 5-101 .................................................... 6

Md. Code., Envir. § 5-502 .................................................... 6

Md. Code., Envir. § 5-903 ................................................. 6-7

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Md. Code., Envir. § 5-911 .................................................... 7

Md. Code., Envir. § 9-314 .................................................... 7

Minn. Stat. § 103G.005 ......................................................... 6

Minn. Stat. § 103G.221 ......................................................... 7

Minn. Stat. § 103G.301 ......................................................... 6

Minn. Stat. § 103G.2375 ....................................................... 6

Minn. Stat. § 115.01 .............................................................. 6

Minn. Stat. § 115.03 .............................................................. 7

Mo. Rev. Stat. § 644.006 ....................................................... 7

Mo. Rev. Stat. § 644.150 ....................................................... 7

Mont. Code § 75-5-101.......................................................... 7

Mont. Code § 75-5-641.......................................................... 7

Neb. Rev. Stat. § 81-1502..................................................... 6

Neb. Rev. Stat. § 81-1504..................................................... 7

Neb. Rev. Stat. § 81-1506..................................................... 6

N.M. Stat. § 74-6-1................................................................ 7

N.M. Stat. § 74-6-17.............................................................. 7

X

TABLE OF AUTHORITIES

(continued)

Page(s)

N.Y. Envtl. Conserv. Law § 24-0101 .................................. 7

N.Y. Envtl. Conserv. Law § 24-1305 .................................. 7

N.D. Cent. Code § 61-01-01 ................................................. 6

N.D. Cent. Code § 61-01-09 ................................................. 6

Or. Rev. Stat. § 196.674 ........................................................ 7

Or. Rev. Stat. § 196.678 ........................................................ 7

Or. Rev. Stat. § 196.800 ........................................................ 6

Or. Rev. Stat. § 390.835 ........................................................ 6

Or. Rev. Stat. § 448.265 ........................................................ 7

Or. Rev. Stat. § 468B.020 ..................................................... 7

Or. Rev. Stat. § 536.007 ........................................................ 6

Tenn. Code § 69-3-103 .......................................................... 6

Tex. Water Code § 11.021 .................................................... 6

Tex. Water Code § 11.502 .................................................... 7

Tex. Water Code § 26.001 .................................................... 6

Tex. Water Code § 26.023 .................................................... 6

W. Va. Code § 22-11-3 .......................................................... 7

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

W. Va. Code § 22-11-8 .......................................................... 7

W. Va. Code § 22-12-4 .......................................................... 7

Wyo. Stat. § 35-11-103 .......................................................... 6

Wyo. Stat. § 35-11-301 .......................................................... 7

Regulations

40 C.F.R. § 130.3 ................................................................. 17

40 C.F.R. § 130.4 ................................................................. 17

40 C.F.R. § 130.7 ................................................................. 17

40 C.F.R. § 131.3 ................................................................. 17

80 Fed. Reg. 37054 (June 29, 2015) .................................. 14

85 Fed. Reg. 22250 (Apr. 21, 2020) ................................... 14

Del. Admin. Code § 74012.0 ................................................. 6

Other Authorities

Anthony Wheeler and R.D. James, Trump

Administration’s WOTUS Definition

Ends Decades of Confusion, Federal

Overreach, THE KANSAS CITY STAR

(Jan. 27, 2020) ............................................................... 13

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

Christopher D. Thomas, Can Anyone

Define Wotus? A Cranky History of

Clean Water Act Jurisdiction, 44 FED.

LAW. 47 (2018) ............................................................... 15

CONGRESSIONAL RESEARCH SERVICE,

“WATERS OF THE UNITED STATES”

(WOTUS): CURRENT STATUS OF THE

2015 CLEAN WATER RULE (2018) ............................... 15

EPA, CRIMINAL PROVISIONS OF WATER

POLLUTION .................................................................... 18

EPA, ICR NO. 0229.21, SUPPORTING

STATEMENT, INFORMATION

COLLECTION REQUEST FOR NATIONAL

POLLUTANT DISCHARGE ELIMINATION

SYSTEM (NPDES) PROGRAM

(RENEWAL) (Dec. 2015) ............................................... 16

EPA, PERCENTAGE OF SURFACE

DRINKING WATER FROM

INTERMITTENT, EPHEMERAL, AND

HEADWATER STREAMS IN WEST

VIRGINIA (Dec. 2009).................................................... 12

THE FEDERALIST NO. 39 (James Madison)....................... 5

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Memorandum from Susan Parker Bodine,

Asst. Adm’r for Enf’t and Compliance,

EPA, to Off. of Civ. Enf’t, EPA (Jan.

15, 2020) ......................................................................... 18

Message to the Senate Returning Without

Approval Legislation Regarding

Congressional Disapproval of an Army

Corps of Engineers and Environmental

Protection Agency Rule on the

Definition of “Waters of the United

States” Under the Clean Water Act,

2016 DAILY COMP. PRES. DOC. 24 (Jan.

19, 2016), 2016 WL 212569 ........................................... 14

Press Release, EPA and Army Announce

Next Steps For Crafting Enduring

Definition of Waters of the United

States (July 30, 2021), 2021 WL 3260511 ................... 19

Richard L. Revesz, Rehabilitating

Interstate Competition: Rethinking the

“Race-to-the-Bottom” Rationale for

Federal Environmental Regulation, 67

N.Y.U. L. REV. 1210 (1992) ............................................ 8

Ryan P. Murphy, Did We Miss the Boat?

The Clean Water Act and

Sustainability, 47 U. RICH. L. REV.

1267 (2013) ....................................................................... 9

XIV

TABLE OF AUTHORITIES

(continued)

Page(s)

Thomas J. Philbrick, From Asahi to

WOTUS: Why “Significant Nexus”

Falls Short, 9 LSU J. ENERGY L. &

RESOURCES 165 (2021) ........................................... 11, 12

U.S. Geological Survey, National Water

Summary on Wetlands Resources,

State Summary Highlights........................................... 8

U.S. Senate. Comm. On Env’t and Pub.

Works. From Preventing Pollution of

Navigable and Interstate Waters to

Regulating Farm Fields, Puddles, and

Dry Land: A Senate Report on the

Expansion of Jurisdiction Claimed by

the Army Corps of Engineers and the

U.S. Environmental Protection Agency

Under the Clean Water Act (Sept. 20,

2016) ............................................................................... 11

INTRODUCTION AND INTERESTS

OF AMICI CURIAE1

Like all States, amici States West Virginia, Alabama,

Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas,

Kentucky, Louisiana, Missouri, Montana, Nebraska, New

Hampshire, North Dakota, Oklahoma, South Carolina,

South Dakota, Texas, Utah, and Wyoming have a

substantial interest in safeguarding the waters within

their borders. “[T]he … power to control navigation,

fishing, and other public uses of water, is an essential

attribute of [state] sovereignty.” Tarrant Reg’l Water

Dist. v. Herrmann, 569 U.S. 614, 631 (2013) (cleaned up);

see also Kansas v. Nebraska, 574 U.S. 445, 480 (2015)

(“Authority over water is a core attribute of state

sovereignty.”). Indeed, over a century ago, the Court

declared that States’ rights over rivers and other

intrastate waters are “obvious, indisputable,” and

“omnipresent.” Hudson Cnty. Water Co. v. McCarter, 209

U.S. 349, 356 (1908). Water management, then, stands as

one of the States’ most important and longstanding

interests.

Congress has honored this sovereign prerogative by

showing “purposeful and continued deference to state

water law.” California v. United States, 438 U.S. 645, 653

(1978). For example, Congress has “almost invariably

deferred to the state law” when addressing “whether

federal entities must abide by state water law.” United

States v. New Mexico, 438 U.S. 696, 702 (1978). And at

various times and in various ways, Congress has

confirmed its “policy … to recognize the interests and

rights of the States in determining the development of the

1

Pursuant to Supreme Court Rule 37.2(a), amici timely

notified counsel of record of their intent to file this brief.

2

watersheds within their borders and likewise their

interests and rights in water utilization and control.” 33

U.S.C. § 701-1; see also Sporhase v. Nebraska ex rel.

Douglas, 458 U.S. 941, 959 (1982) (describing “37 statutes

and the interstate compacts [that] demonstrate Congress’

deference to state water law”).

The Clean Water Act (“CWA”), 33 U.S.C. § 1251, et

seq., is no different.

While crafting new federal

mechanisms to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters,”

id. § 1251(a), Congress simultaneously “recognize[d],

preserve[d], and protect[ed] the primary responsibilities

and rights of States” when it comes to pollution mitigation

and “the development and use … of land and water

resources,” id. § 1251(b) (emphasis added). The CWA

thus created a program of “cooperative federalism.” New

York v. United States, 505 U.S. 144, 167 (1992). It

“anticipates a partnership between the States and the

Federal Government,” Arkansas v. Oklahoma, 503 U.S.

91, 101 (1992), not a wholesale shift of state conservation

power to federal regulators.

Nevertheless, decisions like the one below have turned

the CWA into a jurisdictional cudgel. By too broadly

interpreting the Act’s key jurisdictional phrase—“waters

of the United States”—the Ninth Circuit and other lower

courts have blessed a federal power grab that expands the

CWA to waters that are not “navigable” under even the

most generous common understanding of the term. See

33 U.S.C. § 1362(7) (defining “navigable” waters); see also

id. § 1362(12) (defining “discharge of a pollutant” to cover

the “addition of any pollutant to navigable waters”). The

result is an erosion of the Act’s intended partnership in

favor of federal power over the vast majority of water

resources within the States.

3

These ill-advised cases trace largely to the fractured

decision in Rapanos v. United States, 547 U.S. 715 (2006).

There, a plurality of the Court offered a workable, textbased, and constitutionally sound definition of “waters of

the United States.” Id. at 739, 742. But without five

justices supporting that definition, lower courts struggle

to draw a consistent jurisdictional line, and many have

traded the plurality’s view for the case-by-case

“significant nexus” test from Justice Kennedy’s

concurring opinion. That indeterminate test has allowed

the Environmental Protection Agency (“EPA”) to extend

its reach to all manner of intrastate waters and lands,

including the parcel at issue here—which apparently has

no surface water connection to a body of water. See Pet.

7.

This Court should end the division Rapanos brought

in its wake and restore Congress’ intended assignment of

responsibility. An approach similar to the Rapanos

plurality’s would show sufficient respect for the States’

sovereign prerogatives while removing the confusion over

the CWA’s scope that has plagued regulated parties and

imposed weighty, unwarranted costs on the States and

their people. And it would reinstate the genuinely

cooperative federalism that Congress intended.

The CWA has an important role to play in ensuring

clean water for our country’s interstate waters. But it

should not be allowed to engulf every other water law.

Amici urge the Court to grant certiorari and adopt, once

and for all, a workable, reasonable definition of “waters of

the United States.”

SUMMARY OF ARGUMENT

Rapanos was a missed opportunity to bring much

needed clarity to an otherwise ambiguous provision of the

4

Clean Water Act. The Court now has another chance to

explain what the central jurisdictional phrase of the Act

means. It should take it.

I. As things stand, the CWA usurps state authority

in otherwise local water management matters. States

have historically held the primary role in managing and

preserving our nation’s waters—but courts and agencies

have now extended the CWA to puddles, ditches, and

drains in a way that neither the statute nor the

Constitution can support.

II. Further, these interpretations have been

inconsistent. Currently, identifying “the waters of the

United States” is an onerous process. Even once that

process unwinds, the indefinite “significant nexus”

standard often leads to arbitrary enforcement and

frustration for all parties. This confusion imposes

substantial costs on the States and the individuals and

businesses within our borders.

III. Given these problems, the Court should grant the

petition and embrace the Rapanos plurality’s test: “‘the

waters of the United States’ include only relatively

permanent, standing or flowing bodies of water.”

Rapanos, 547 U.S. at 732 (plurality op.).

That

construction is most consistent with the text that

Congress chose.

And it gives an understandable,

appropriately constrained scope to the Act. The federal

government retains its role as the guardian of truly

national, navigable waters; the States retake their place

as guardians of state waters; and citizens can move

forward knowing what, when, and how the various rules

apply.

The CWA promises an opportunity for genuinely

cooperative federalism while advancing the important

5

objective of clean water for all. Amici States respectfully

ask that the Court grant the petition to renew that

promise.

REASONS FOR GRANTING THE PETITION

I.

The Court Should Grant The Petition To

Restore Respect For States’ Water Rights.

A. As co-sovereigns in our federal system, “States

retain broad authority in … pursuing their legislative

objectives.” Shelby Cnty., Ala. v. Holder, 570 U.S. 529,

543 (2013). The Tenth Amendment and our entire

constitutional structure insist that States “retain a

residuary and inviolable sovereignty.” Alden v. Maine,

527 U.S. 706, 715 (1999) (quoting THE FEDERALIST NO. 39,

at 245). Indeed, this division of powers between federal

and state governments is an essential aspect of

“protect[ing] the liberty of the individual from arbitrary

power.” Bond v. United States, 572 U.S. 844, 863 (2014).

And “[t]he essence of federalism is that states must be

free to develop a variety of solutions to problems and not

be forced into a common, uniform mold.” Addington v.

Texas, 441 U.S. 418, 431 (1979).

States’ sovereign interests and expertise are on full

display when it comes to protecting our nation’s precious

water resources—state authority to regulate local lands

and waters “is perhaps the quintessential state activity.”

FERC v. Mississippi, 456 U.S. 742, 767 n.30 (1982)

(emphasis added). This means that “except where the

reserved rights or navigation servitude of the United

States are invoked, the State has total authority over its

internal waters.”

California, 438 U.S. at 662.

Accordingly, this Court has sought to prevent “significant

impingement of the States’ traditional and primary power

6

over land and water use.” Solid Waste Agency of N. Cook

Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174

(2001) (“SWANCC”).

And the States have not hesitated to flex their

authority. Indeed, many States have implemented laws

and regulations that are more protective of their waters

than if the CWA alone applied. Many define the “state

waters” over which they assert jurisdiction more broadly

than “waters of the United States.”2 Often, those

definitions extend to ephemeral and intermittent waters

and wetlands—expressly, with no need to impose a

“nexus” gloss on the statutory text.3

The States

independently enforce their own water-quality laws, too.

Those standards might account for construction that may

impact state waters, for instance.4

Many States

administer comprehensive wetland-protection programs

that include dredge-and-fill measures, mitigation

requirements, and water quality monitoring.5 And, of

2

See, e.g., Iowa Code § 455B.171(41); Md. Code., Envir.

§ 5-101(l); Minn. Stat. § 115.01(22); Neb. Rev. Stat.

§ 81-1502(21); N.D. Cent. Code § 61-01-01; Or. Rev. Stat.

§ 536.007(12); Tex. Water Code §§ 26.001(5), 26.023.

3

See, e.g., Ariz. Rev. Stat. §§ 45-101(9), 49-201(41); 7 Del.

Admin. Code § 74012.0; Minn. Stat. § 103G.005(15), (17);

Or. Rev. Stat. § 196.800(15); Tenn. Code § 69-3-103(46);

Tex. Water Code § 11.021; Wyo. Stat. § 35-11-103(c)(vi).

4

See, e.g., Fla. Stat. § 403.088; Iowa Code § 455B.173; Md.

Code, Envir. § 5-502; Minn. Stat. § 103G.301; Neb. Rev.

Stat. § 81-1506(2)(f); Or. Rev. Stat. § 390.835.

5

See, e.g., Ark. Code § 15-22-1007; Ind. Code §§ 13-18-221 to -11; Fla. Stat. §§ 373.019(27), 373.414; Md. Code,

7

course, state requirements include water-purity and

pollution standards.6

Collectively, these provisions provide comprehensive

protections for intrastate waters and other natural

resources within state borders. In West Virginia, for

example, “[i]t is unlawful for any person” without a stateissued permit to “allow sewage, industrial wastes or other

wastes, or the effluent therefrom, produced by or

emanating from any point source, to flow into the waters

of this state.” W. Va. Code § 22-11-8(b)(1). The

Legislature then defined “waters of the state” to embrace

all wetlands and all water, on or beneath the earth’s

surface—the only exceptions are farm ponds, industrial

settling basins, and water treatment facilities (which are

separately regulated). Id. § 22-11-3(23). Every state

permit limits the amount of pollutants that may flow into

the waters of the State, id. § 22-11-8(b)(4); state

regulations limit the “maximum contaminant levels

permitted for groundwater,” too, id. § 22-12-4(b). And

these limits must be sufficient to “provide protection for”

Envir. §§ 5-903 to -911; Minn. Stat. §§ 103G.221 to -2375;

N.Y. Envtl. Conserv. Law §§ 24-0101 to -1305; Or. Rev.

Stat. §§ 196.674, 196.678; Tex. Water Code § 11.502.

6

See, e.g., Ariz. Rev. Stat. §§ 45-401 to 45-704; Ark. Code

§§ 15-22-906, -915; Ky. Rev. Stat. §§ 224.70-100 to -150;

Fla. Stat. §§ 403.062 to -623; Iowa Code §§ 455B.176A,

455B.186, 455B.263, 455B.267; Md. Code, Envir., § 9-314;

Minn. Stat. § 115.03; Mo. Rev. Stat. §§ 644.006 to -150;

Mont. Code §§ 75-5-101 to -641; Neb. Rev. Stat. § 81-1504;

N.M. Stat. §§ 74-6-1 to -17; N.D. Cent. Code §§ 61-28-01 to

-09; Or. Rev. Stat. §§ 448.265, 468B.020; Wyo. Stat.

§ 35-11-301.

8

“hydrologically connected … surface water and other

groundwater.” Id. § 22-12-4(c).

States have good reason to act decisively when

protecting their vital water resources. Because local

officials are literally “on the ground,” States understand

better their local environments’ unique hydrological

challenges. After all, the Florida Everglades presents

different water-management concerns than the mountain

rivers of West Virginia. See U.S. Geological Survey,

National Water Summary on Wetlands Resources, State

Summary Highlights, https://water.usgs.gov/nwsum/

WSP2425/state_highlights_summary.html (describing 11

million acres of wetlands in Florida versus the small

pocket of wetlands occupying “less than 1 percent” of

West Virginia’s surface area). Even water features of the

same general type can raise state-level complexities:

wetlands in southeastern Alaska, for example, are much

different from the wetlands of the Mississippi Delta.

What’s more, States can often respond to changing

conditions faster than the federal government. With a

more direct line to constituents and stakeholders, local

legislators often have a better sense of local needs even

aside from site-specific geology and hydrology. And with

increasing public attention on environmental issues,

States are motivated to push for environmental controls

that will attract citizens looking for clean water and a

pleasant living environment—rather than engaging in the

“race to the bottom” that so many feared decades ago.

See, e.g., Richard L. Revesz, Rehabilitating Interstate

Competition: Rethinking the “Race-to-the-Bottom”

Rationale for Federal Environmental Regulation, 67

N.Y.U. L. REV. 1210, 1212-13 (1992) (explaining why

“existing models provide no support for [race-to-thebottom] arguments” and concluding that “even if there

9

were a race to the bottom over environmental regulation,”

federal intervention “would be inadvisable because it

would have the undesirable effect of skewing other state

regulatory or fiscal decisions”).

In sum, States have the expertise and incentives to

continue fulfilling their traditional, constitutionally

protected role as primary guardians of the nation’s

waters.

B. In the Clean Water Act, Congress recognized that

this vital role calls for a careful calibration of state and

federal water regulation—one that permits federal

involvement but ultimately respects the paramount role of

the States in water management.

Congress wrote its purpose right into the text: “to

recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce,

and eliminate [water] pollution.” 33 U.S.C. § 1251(b). Far

from throwaway rhetoric, Congress employed this

language to address concerns from States that the CWA

would become a “federal takeover” of water management

and pollution control. Ryan P. Murphy, Did We Miss the

Boat? The Clean Water Act and Sustainability, 47 U.

RICH. L. REV. 1267, 1275 (2013); see also S.D. Warren Co.

v. Maine Bd. of Env’t Prot., 547 U.S. 370, 386 (2006) (“[The

CWA] provides for a system that respects the States’

concerns.”). And Congress went beyond a mere statement

of purpose; a “strong current of federalism” runs

throughout the statute. District of Columbia v. Schramm,

631 F.2d 854, 863 (D.C. Cir. 1980); accord Am. Paper Inst.,

Inc. v. EPA, 890 F.2d 869, 873 (7th Cir. 1989)

(“[N]umerous courts have recognized the primacy of state

and local enforcement of water pollution controls as a

theme that resounds throughout the history of the Act.”

(cleaned up)). For example, Congress allowed many key

10

decisions, such as whether a permit should issue under the

National Pollutant Discharge Elimination System, to

remain in the hands of the States. 33 U.S.C. § 1342(b). In

short, “Congress did not want to interfere any more than

necessary with state water management.” Nat’l Wildlife

Fed’n v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir. 1982).

This Court has also repeatedly recognized that

federalism is baked into the definition of “waters of the

United States.” Congress tied the definition to “navigable

waters”; that phrase, in turn, shows “what Congress had

in mind as its authority for enacting the CWA: its

traditional jurisdiction over waters that were or had been

navigable in fact or which could reasonably be so made.”

SWANCC, 531 U.S. at 172. And by referring to “the

waters of the United States” (rather than just “water of

the United States”), Congress repudiated any intent to

bring “virtually all planning of the development and use of

land and water resources by the States under federal

control.” Rapanos, 547 U.S. at 737 (plurality op.) (cleaned

up; emphasis added).

C. Congress’ constitutionally required system of

respect, however, has gone awry. Relying on Justice

Kennedy’s broad “significant nexus” test and other

language from Rapanos, both courts and administrative

agencies have extended the CWA to areas that Congress

never could have expected would fall under the federal

government’s domain—and as a result, have shrunk the

category of intrastate waters almost out of existence.

According to some courts, for instance, a rock quarry

pit, a bit of water that was “dry most of the year,” and a

roadside ditch are all “the waters of the United States.”

N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993,

1001 (9th Cir. 2007); United States v. HVI Cat Canyon,

Inc., 314 F. Supp. 3d 1049, 1062 (C.D. Cal. 2018); Cal.

11

Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc.,

124 F. Supp. 3d 1007, 1017 (E.D. Cal. 2015). Even before

Rapanos, the Ninth Circuit had found that a wetland

separated from a traditionally navigable body of water by

a seventy-foot-high berm and a maintenance road met the

“significant nexus” standard. See Baccarat Fremont

Devs., LLC v. U.S. Army Corps of Eng’rs, 425 F.3d 1150,

1152, 1157 (9th Cir. 2005). “It is hard to imagine how

almost anything could stop the courts … from finding a

‘significant nexus’” if that berm or a near-total absence of

water “is not enough.” Thomas J. Philbrick, From Asahi

to WOTUS: Why “Significant Nexus” Falls Short, 9 LSU

J. ENERGY L. & RESOURCES 165, 189 (2021). Indeed this

very case—involving a parcel of land separate from

discernible “wetlands,” let alone navigable waters—drives

home how far lower courts have departed from the Act’s

cooperative federalism constraints.

The agencies have been even more aggressive than the

courts in extending the Act’s purported reach. A report

from the U.S. Senate Committee on Environment and

Public Works details how the Army Corps of Engineers

and the EPA have sought to apply the CWA to rocks, tire

ruts, parking-lot puddles, roadside drainage, “test pits,”

permafrost, and ephemeral drainage.7 Based on incidents

7

See U.S. Senate. Comm. On Env’t & Pub. Works, From

Preventing Pollution of Navigable and Interstate Waters

to Regulating Farm Fields, Puddles, and Dry Land: A

Senate Report on the Expansion of Jurisdiction Claimed

by the Army Corps of Engineers and the U.S.

Environmental Protection Agency Under the Clean

Water

Act

(Sept.

20,

2016),

available

at

https://www.epw.senate.gov/public/cache/files/7b469fe462c3-4ea9-9ce2-bedbf5179372/wotus-committee-report-

12

like these, it is no exaggeration that “[a]ny piece of land

that is wet at least part of the year is in danger of being

classified by EPA employees as wetlands covered by the

Act.” Sackett v. EPA, 566 U.S. 120, 132 (2012) (Alito, J.,

concurring). Even Justice Kennedy noted after Rapanos

that “the reach and systemic consequences of the Clean

Water Act remain[ed] a cause for concern”—in other

words, the Act “continues to raise troubling questions.”

U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807,

1816-17 (2016) (Kennedy, J., concurring).

Consider ephemeral and intermittent waters as one

example of the consequences of reading “the waters of the

United States” too broadly. The Rapanos plurality

explained that “waters of the United States” “does not

include channels through which water flows intermittently

or ephemerally.” Rapanos, 547 U.S. at 739. But some

lower courts have looked to Justice Kennedy’s

concurrence to hold that the phrase can reach

“intermittent streams.” See, e.g., United States v.

Lippold, No. 06-30002, 2007 WL 3232483, at *6 (C.D. Ill.

Oct. 31, 2007). In West Virginia alone, that one (seemingly

small) interpretive variance would subject at least 8,000

additional miles of surface flow to federal jurisdiction.8

final1.pdf; see also Philbrick, supra, at 189 (noting other

starling examples of the Agencies’ assertions of

jurisdiction based on significant nexus).

8

See EPA, PERCENTAGE OF SURFACE DRINKING WATER

FROM INTERMITTENT, EPHEMERAL, AND HEADWATER

STREAMS IN WEST VIRGINIA (Dec. 2009), available at

https://www.epa.gov/sites/default/files/201506/documents/2009_12_29_wetlands_science_surface_dri

nking_water_surface_drinking_water_wv.pdf.

13

Thousand-mile interpretations add up across a nation, and

the bulk they place on the federal side of the scale pushes

Congress’ intent increasingly out of balance.

Indeed, a former head of the EPA and a former

Assistant Secretary of the Army jointly declared that

under the “significant nexus” test, the CWA threatens to

subject almost every drop of water within States to federal

jurisdiction.9 More than that, the Act has become a

“federal land grab.” Id. (emphasis added). When features

that meet no commonly understood sense of “water” are

swept into the waters of the United States, the States’

authority over their own lands is threatened, too.

This situation is untenable. Granting certiorari would

allow the Court to renew the CWA’s promise of a primary

state role. The Court should act to heal the wound to state

sovereignty that too-broad interpretations of the CWA

have opened these many years.

II.

The Court Should Grant The Petition To

Resolve The Chronic Confusion Over The

CWA’s Division Of State And Federal

Jurisdiction.

The Court’s intervention is needed even aside from the

affronts to federalism with an Act untethered from its

statutory and constitutional restraints.

A wrong

interpretation is bad enough, but lower courts, regulated

parties, and the States cannot even identify with any

9

See Anthony Wheeler and R.D. James, Trump

Administration’s WOTUS Definition Ends Decades of

Confusion, Federal Overreach, THE KANSAS CITY STAR

(Jan. 27, 2020), available at https://www.kansascity.com/

opinion/article239612438.html.

14

confidence the line between state and federal waters. This

confusion is costly, and only this Court can end it.

A. Defining “waters of the United States” “is a

contentious and difficult task,” Nat’l Ass’n of Mfrs. v.

Dep’t of Def., 138 S. Ct. 617, 623 (2018), and everyone

involved with implementing and enforcing the CWA has

been casting for guidance for too long. As Petitioners

explained, see Pet. 11-12, this Court has weighed in three

times over the meaning of the term—in 1985, 2001, and

2006. See Rapanos, 547 U.S. at 757; SWANCC, 531 U.S.

at 171; United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 135 (1985). And rather than setting

confusion to rest in this important area of the law,

questions over the CWA’s scope have multiplied even

more after the fractured decision in Rapanos.

The Agencies issued guidance after SWANCC and

Rapanos—and later found both attempts inadequate. 80

Fed. Reg. 37054, 37056 (June 29, 2015). In 2015, the

Agencies tried again to “clarify” the definition of “waters

of the United States.” Id. at 37054. But that proposal

spawned “over 1 million public comments,” id. at 37057,

and the final rule triggered an immediate congressional

rejection via the Congressional Review Act, which

President Obama then vetoed. See Message to the Senate

Returning Without Approval Legislation Regarding

Congressional Disapproval of an Army Corps of

Engineers and Environmental Protection Agency Rule on

the Definition of “Waters of the United States” Under the

Clean Water Act, 2016 DAILY COMP. PRES. DOC. 24 (Jan.

19, 2016), 2016 WL 212569. The Agencies’ most recent

attempt in 2017 to further clarify its guidance—starting

from the same uncertain legal framework—was similarly

controversial. E.g., 85 Fed. Reg. 22250, 22260 (Apr. 21,

2020) (noting “approximately 690,000 comments”

15

received). Both rounds of agency rulemaking also led to

massive and ultimately inconclusive litigation. After the

2015 rule, for instance, “industry groups, more than half

the states, and several environmental groups filed

lawsuits challenging the rule in multiple federal district

and appeals courts.” CONGRESSIONAL RESEARCH

SERVICE, “WATERS OF THE UNITED STATES” (WOTUS):

CURRENT STATUS OF THE 2015 CLEAN WATER RULE 7

(2018).

Courts and commenters are confused, too. There have

been “several thousand law review articles” on issues

related to the Question Presented. Christopher D.

Thomas, Can Anyone Define Wotus? A Cranky History

of Clean Water Act Jurisdiction, 44 FED. LAW. 47 (2018).

As for lower courts, “the real difficulty comes in

determining which—if any—of the three main opinions [in

Rapanos they] should look to for guidance.” United

States v. Cundiff, 555 F.3d 200, 207-08 (6th Cir. 2009). As

the Petition explains (at 17-20), courts are hopelessly

divided whether to follow the plurality opinion, Justice

Kennedy’s “significant nexus” opinion, or a combination.

Even worse for lower courts, the “Marks” test for

divining precedential effect has proven to be a poor fit for

Rapanos. In a fractured opinion, usually “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) (citation omitted). Yet it is unclear here

what position that might be: Justice Kennedy’s

concurrence recognizes that “neither the plurality nor the

dissent addresses the nexus requirement,” and for its

part, the concurrence repeatedly rejected key aspects of

the plurality and dissent. United States v. Robison, 521

F. Supp. 2d 1247, 1252 (N.D. Ala. 2007); see also, e.g.,

16

United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006)

(finding Marks inapplicable when applying Rapanos).

There is thus no clear course for lower courts under

Rapanos. In short, they are left in the doubly difficult

position of having neither clear direction from this Court

nor an agreed second-best path forward under Marks.

B. States and regulated parties bear the costs from

these years of uncertainty.

First, the States carry a heavy load making (and often

defending in court) many detailed hydrologic analyses

every year. See, e.g., North Dakota v. EPA, 127 F. Supp.

3d 1047, 1059 (D.N.D. 2015) (noting that the 2015 rule

would have required North Dakota to “among other

things, undertak[e] jurisdictional studies for every

proposed gas, oil, or water pipeline project”). Doing so

under an uncertain and often shifting legal standard is an

unjustified burden.

Currently 47 States have received authority to

implement the National Pollutant Discharge Elimination

System (“NPDES”) permitting regime pursuant to

Section 1342(b). This means that the burdens of unknown

or expanded CWA jurisdiction fall directly on the States

and their environmental protection agencies. This Court

has lamented that the NPDES process is “arduous,

expensive, and long.” Hawkes, 136 S. Ct. at 1815. Quite

right: State environmental protection agencies spend

nearly 1.6 million hours and nearly a million dollars each

year processing NPDES permits.10 And NPDES is only

10

See EPA, ICR NO. 0229.21, SUPPORTING STATEMENT,

INFORMATION COLLECTION REQUEST FOR NATIONAL

POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)

17

one of many responsibilities the CWA entrusts to the

States. States must set water quality standards for all

covered waters, 33 U.S.C. § 1311(b)(1)(C), (e)(3)(A); 40

C.F.R. §§ 130.3, 131.3(i), 131.4(a), then apply Total

Maximum Daily Loads for any waters that fail to meet

those standards, 40 C.F.R. § 130.7. These water-quality

responsibilities come with a reporting requirement on “all

navigable waters in [each] State.”

33 U.S.C.

§ 1315(b)(1)(A)-(B). States must provide certifications for

federal permit applicants, too. Id. § 1341.

If this Court gives “the waters of the United States” a

more restrained construction, then States can

appropriately redirect some of these extensive efforts to

localized regulation of their own choosing—just as the

cooperative federalist scheme anticipated. But more

generally, regardless what the answer is, having

resolution will itself better focus state resources and help

avoid duplicative and unnecessarily prolonged reviews.

Sending beneficial land improvement projects to

regulatory purgatory costs States untold tax revenues,

stalls jobs creation, and forfeits other non-monetary

benefits for our States’ residents. And constantly

changing regulatory requirements and varying court

interpretations undermine the States’ abilities to pass and

implement their own water and land use regulations.

Without a clear directive of what waters fall within the

federal government’s jurisdiction—and thus how much

effectively remains of the category of intrastate waters—

it is harder from both resource and political accountability

PROGRAM (RENEWAL) at *17, tbl. 12.1 (Dec. 2015),

available at https://www.reginfo.gov/public/do/Download

Document?objectID=60917402.

18

standpoints for States to fulfill their constitutional roles

effectively.

Second, the people and businesses in our States are

hurt by ever-changing jurisdictional goalposts. As the

Rapanos plurality pointed out, the “average applicant for

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

completing the process,” and “over $1.7 billion is spent

each year by the private and public sectors obtaining

wetlands permits.” Rapanos, 547 U.S. at 721 (plurality

op.). These massive costs can lead to delayed development

or no development at all—a particularly weighty loss if it

turns out the Act did not actually reach the waters in

question. And even unintended violations of the Act can

lead to bankruptcy-inducing fines; again, the Court need

look no further than the Agencies’ 2007 threats against the

Sacketts of tens of thousands of dollars of fines for each

day of non-compliance on their 0.63 acre lot. Pet App. B2 to B-3.

Currently, the maximum civil fines for CWA violations

are $55,800 per day, per violation.11 Criminal penalties can

be up to $25,000 per day and two years in prison for

negligent violations, and more for knowing violations.12

And some courts mandate a top-down fine approach,

imposing the maximum fine amount unless the court

determines (after making specific factual findings) that

11

Memorandum from Susan Parker Bodine, Asst. Adm’r

for Enf’t and Compliance, EPA, to Off. of Civ. Enf’t, EPA

(Jan. 15, 2020), available at https://www.epa.gov/sites/

default/files/2020-01/documents/

2020penaltyinflationruleadjustments.pdf.

12

EPA, CRIMINAL PROVISIONS OF WATER POLLUTION,

https://www.epa.gov/enforcement/criminal-provisionswater-pollution.

19

the party meets the “factors spelled out in” the statute.

E.g., Atl. States Legal Found., Inc. v. Tyson Foods, Inc.,

897 F.2d 1128, 1142 (11th Cir. 1990). Others have taken

the opposite approach. E.g., United States v. Gulf Park

Water Co., 14 F. Supp. 2d 854, 858 (S.D. Miss. 1998)

(collecting cases). Further, fines continue to accrue even

during any legal proceedings challenging EPA orders.

The potential liability for even small infractions can thus

keep many landowners from stepping onto the regulatory

playing field in the first place.

Third, sending the Agencies on another round of

rulemaking before resolving this central legal issue will

further compound these harms. Recently, the Agencies

announced that they will “write a [new] rule to define

WOTUS that is grounded in … the law” and “consistent

with the relevant Supreme Court decisions.” See Press

Release, EPA and Army Announce Next Steps For

Crafting Enduring Definition of Waters of the United

States (July 30, 2021), 2021 WL 3260511. Yet it is far from

clear what that means while Rapanos’ multiple opinions

remain the best word on the CWA’s reach. The most likely

result is more time-intensive and costly rounds of

rulemaking and litigation in the lower courts that stand to

make the current confusion even worse. By contrast,

taking up the clean question of law the Petition presents

would allow the Agencies and the States to invest these

resources into developing and enforcing smart rules to

protect our nation’s water resources—with a clear

understanding of which waters fall on the inter- and

intrastate sides of the line.

20

III.

The Court Should Reverse the Ninth Circuit’s

All-Encompassing View Of Federal Water

Jurisdiction.

This case shows just how problematic the “significant

nexus” test has become. The Ninth Circuit concluded that

the Sacketts’ property comprised part of “the waters of

the United States” because their “soggy residential lot”

lay across a road from a “large wetlands complex” that

“drains into an unnamed tributary” that in turn feeds a

creek that then runs from the property and finally empties

into a lake. Sackett v. EPA, 8 F.4th 1075, 1079, 1081 (9th

Cir. 2021). According to the Ninth Circuit, the lot’s

supposed adjacency to the “relatively permanent”

unnamed tributary and its relationship to “similarly

situated” wetlands were enough to give the EPA

jurisdiction. Id. at 1091-93. The court was further

unwilling to “second guess” the agency’s technical

judgment that the Sacketts’ lot affected the “chemical,

physical, and biological integrity” of the lake. Id. at 1093.

The attenuated line of connection between the

Sacketts’ land and navigable waters illustrates how courts

have lost their way when it comes to the CWA. The Court

should correct this error by granting the Petition and

giving the Rapanos plurality authoritative weight.

First, the plurality’s reading is truer to the CWA’s text

than the Ninth Circuit’s broad-sweeping significant-nexus

test. As the plurality explained, “[t]he use of the definite

article (‘the’) and the plural number (‘waters’) shows

plainly that § 1362(7) does not refer to water in general.”

Rapanos, 547 U.S. at 732 (plurality op.). Further,

“waters” is ordinarily defined to mean “permanent,

standing or flowing bodies of water … forming

geographical features.” Id. at 732-33. Were there any

confusion on that score, Congress’ choice to link “waters

21

of the United States” with “navigable” waters dispels it,

as “navigable” waters are ordinarily understood to be

permanent water features. Id.

In contrast, the “significant nexus” test is not drawn

from the statutory text, but comes instead from

SWANCC’s “cryptic characterization” of Riverside

Bayview. Rapanos, 547 U.S. at 755 (plurality op.). The

test’s indeterminate language permitted the Ninth Circuit

to extend the CWA to transient waters that were three (or

more) degrees separated from any water traditionally

understood to be navigable. This Court should return the

statute to a footing found in the text.

“The second problem with” the significant-nexus

approach “is its inconsistency with the design and

structure of the statute as a whole.” Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013). In

particular, “the CWA itself categorizes the channels and

conduits that typically carry intermittent flows of water

separately from ‘navigable waters,’ by including them in

the definition of ‘point source.’” Rapanos, 547 U.S. at 735

(plurality op.). “The separate classification of ditches,

channels, and conduits—which are terms ordinarily used

to describe the watercourses through which intermittent

waters typically flow—shows that these are, by and large,

not ‘waters of the United States.’” Id. at 735-36 (cleaned

up). “Significant nexus” effectively muddles the statutory

categories, rendering one or the other superfluous. Here,

for instance, the Ninth Circuit relied on an impermanent

channel and “subsurface flow” to conclude that the

Sacketts’ lot was covered. Sackett, 8 F.4th at 1092-93 &

nn.13-14.

Using the significant-nexus test in the way the Ninth

Circuit did here also “raise[s] a multitude of constitutional

problems,” counseling again that the plurality’s definition

22

should prevail. Clark v. Martinez, 543 U.S. 371, 380-81

(2005). Most obviously, Congress used the phrase “waters

of the United States” to set a meaningful, constitutional

boundary: it “is a jurisdictional element, connecting the

Clean Water Act to Congress’s Commerce Clause

powers.” United States v. Lucero, 989 F.3d 1088, 1095

(9th Cir. 2021). But an enigmatic “nexus” definition sets

no boundary. As practice and this case underscore, see

supra Part I, it permits the federal government to extend

its reach to all manner of lands that have no traditional ties

to navigable waters and, thus, interstate commerce—

courts then defer to these “technical” jurisdictional

judgments without applying meaningful scrutiny.

Implementing agencies can thus use the ambiguity

inherent in the standard to rationalize their way into

jurisdiction in almost any case, commerce-related or not.

Yet “we would expect a clearer statement from Congress

to authorize an agency theory of jurisdiction that presses

the envelope of constitutional validity.” Rapanos, 547 U.S.

at 738 (plurality op.).

Lastly, the Rapanos plurality’s approach affords

greater respect than the Ninth Circuit’s for the States’

roles in water management. When it comes to the CWA,

“[c]lean water is not the only purpose of the statute. So is

the preservation of primary state responsibility for

ordinary land-use decisions.” Rapanos, 547 U.S. at 75556 (plurality op.) (citing 33 U.S.C. § 1251(b)); see also

McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 861

(2005) (noting how courts should consider purpose in

construing a statute). And this Court’s “precedents

require Congress to enact exceedingly clear language if it

wishes to significantly alter the balance between federal

and state power and the power of the Government over

private property.” U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n, 140 S. Ct. 1837, 1849-50 (2020) (rejecting

23

construction of Mineral Leasing Act that would have

converted thousands of acres of private and state-owned

land to national-park land). The CWA lacks any such

language. See Rapanos, 547 U.S. at 738 (plurality op.)

(explaining that “the phrase ‘the waters of the United

States’ hardly qualifies” as a sufficiently clear statement

of an intent to abrogate state authority). Even so,

decisions like the Ninth Circuit’s effectively sideline the

States from water management and environmental

regulation.

To address these federalism and text-based concerns,

the Court should grant the Petition and explain “precisely

how to read Congress’ limits on the reach of the Clean

Water Act.” Rapanos, 547 U.S. at 758 (Roberts, C.J.,

concurring). Properly understood, the Act and the

constitutional principles it enshrines require reversal.

CONCLUSION

The petition for a writ of certiorari should be granted.

24

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

DAVID C. TRYON*

MICHAEL R. WILLIAMS**

Special Counsel

*admitted in Ohio; practicing

under supervision of West

Virginia attorneys

**admitted in the District of

Columbia, Michigan, and

Virginia; practicing under

supervision of West

Virginia attorneys

Counsel for Amicus Curiae State of West Virginia

25

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

JEFF LANDRY

Attorney General

State of Louisiana

TREG R. TAYLOR

Attorney General

State of Alaska

ERIC SCHMITT

Attorney General

State of Missouri

MARK BRNOVICH

Attorney General

State of Arizona

AUSTIN KNUDSEN

Attorney General

State of Montana

LESLIE RUTLEDGE

Attorney General

State of Arkansas

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

CHRIS CARR

Attorney General

State of Georgia

JOHN FORMELLA

Attorney General

State of New Hampshire

THEODORE E. ROKITA

Attorney General

State of Indiana

WAYNE STENEHJEM

Attorney General

State of North Dakota

DEREK SCHMIDT

Attorney General

State of Kansas

JOHN M. O’CONNOR

Attorney General

State of Oklahoma

DANIEL CAMERON

Attorney General

State of Kentucky

KEN PAXTON

Attorney General

State of Texas

26

ALAN WILSON

Attorney General

State of South Carolina

SEAN D. REYES

Attorney General

State of Utah

JASON RAVNSBORG

Attorney General

State of South Dakota

BRIDGET HILL

Attorney General

State of Wyoming

Counsel for Amici States