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

Supreme Court briefApr 11, 2022

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No. 21-454

In The

Supreme Court of the United States

____________________

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY;

MICHAEL S. REGAN, Administrator,

Respondents.

____________________

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

PETITIONERS’ BRIEF ON THE MERITS

____________________

ANTHONY L. FRANÇOIS

DAMIEN M. SCHIFF*

Briscoe, Ivester &

*Counsel of Record

Bazel LLP

CHARLES T. YATES

235 Montgomery Street,

Pacific Legal Foundation

Suite 935

555 Capitol Mall, Suite 1290

San Francisco, CA 94104

Sacramento, CA 95814

Telephone: (415) 402-2707 Telephone: (916) 419-7111

tfrancois@briscoelaw.net

DSchiff@pacificlegal.org

CYates@pacificlegal.org

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 610

Arlington, VA 22201

PGilliard@pacificlegal.org

Counsel for Petitioners

Question Presented

Did the Ninth Circuit set forth the proper test for

determining whether wetlands are “waters of the

United States” under the Clean Water Act, 33 U.S.C.

§ 1362(7)?

Table of Contents

Question Presented...................................................... i

Table of Authorities .................................................... v

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Statutory and Regulatory Provisions at Issue .......... 1

Introduction ................................................................ 4

Statement of the Case ................................................ 8

A. The Sacketts’ Thwarted

Home-Building Project .................................. 8

B. The Clean Water Act’s Regulation

of Pollutant Discharges ................................. 9

C. The Court’s Precedents Interpreting

“the waters of the United States” ............... 13

D. EPA’s Assertion of Jurisdiction

Over the Sacketts’ Lot, and the

Sacketts’ Lawsuit ........................................ 18

Summary of Argument ............................................. 22

Argument .................................................................. 25

A Two-Step Framework for Wetlands

Jurisdiction Under the Clean Water Act........ 25

iii

Step 1: Is There a Continuous SurfaceWater Connection to a “Water” Such

That It Is Difficult to Say Where the

“Water” Ends and the Wetland Begins? ... 25

Step 2: Is the Wetland Among

“the waters of the United States”,

i.e., subject to Congress’s authority

over the channels of commerce? ................ 29

1. “[T]he waters of the United States”:

a traditional statutory shorthand for

those waterbodies subject to Congress’s

power to regulate the aquatic

channels of interstate commerce .............. 29

2. Statutes and judicial precedent prior

to the Clean Water Act concerning the

aquatic channels of interstate commerce

and activities affecting those waters ....... 32

3. The Clean Water Act’s “the waters of

the United States”: traditional navigable

waters as well as intrastate navigable

waters that serve as links in an

interstate channel of commerce ............... 36

The Two-Step Framework’s Consistency

With the Court’s Precedents ...................... 43

II. The Significant Nexus Test Should

Be Abandoned .................................................. 45

III. The Sacketts’ Lot Contains None of “the

waters of the United States,” and thus

the Sacketts Are Entitled to a Declaration

That EPA Lacks Authority Over Their

Homebuilding Project ...................................... 49

Conclusion ................................................................. 52

Table of Authorities

Cases

Ass’n of Bituminous Contractors, Inc. v. Apfel,

156 F.3d 1246 (D.C. Cir. 1998)....................... 48-49

Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984) ............................................. 13

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981) ............................................. 38

Cooley v. FERC,

843 F.2d 1464 (D.C. Cir. 1988)............................ 37

County of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) ................................... 42, 46

The Daniel Ball,

77 U.S. (10 Wall.) 557 (1870) ............ 11, 32, 35, 44

Economy Light & Power Co. v. United States,

256 U.S. 113 (1921) ....................................... 32, 35

EPA v. California ex rel. State Water

Res. Control Bd.,

426 U.S. 200 (1976) ............................................. 38

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ......................................... 31

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ................................. 29

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ............................................... 10

Hardy Salt Co. v. So. Pac. Transp. Co.,

501 F.2d 1156 (10th Cir. 1974) ........................... 43

Holmes v. Secs. Investor Protection Corp.,

503 U.S. 258 (1992) ............................................. 33

Hall v. Hall,

138 S. Ct. 1118 (2018) ......................................... 37

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ......................................... 49

Marks v. United States,

430 U.S. 188 (1977) ............................................. 18

Minnehaha Creek Watershed Dist. v. Hoffman,

597 F.2d 617 (8th Cir. 1979) ............................... 43

Natural Res. Def. Council, Inc. v. Callaway,

392 F. Supp. 685 (D.D.C. 1975)........................... 11

Nichols v. United States,

511 U.S. 738 (1994) ............................................. 48

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,

313 U.S. 508 (1941) ............................................. 35

Rapanos v. United States,

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

Ross v. Blake,

578 U.S. 632 (2016) ............................................. 25

vii

S.D. Warren Co. v. Maine Bd. of Envtl. Protection,

547 U.S. 370 (2006) ............................................. 26

Sackett v. EPA,

566 U.S. 120 (2012) ........................................ 20-21

Sackett v. EPA,

622 F.3d 1139 (9th Cir. 2010) ............................. 21

Sanitary Dist. of Chicago v. United States,

266 U.S. 405 (1925) ............................................. 35

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Eng’rs,

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

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

578 U.S. 590 (2016) ....................................... 10, 48

United States v. Appalachian Elec. Power Co.,

311 U.S. 377 (1940) ....................................... 33, 35

United States v. Bass,

404 U.S. 336 (1971) ............................................. 40

United States v. Esso Standard Oil Co.

of Puerto Rico,

375 F.2d 621 (3d Cir. 1967) ................................. 36

United States v. Hercules, Inc., Sunflower

Army Ammunition Plant, Lawrence, Kan.,

335 F. Supp. 102 (D. Kan. 1971) ......................... 36

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) .................................. 48

viii

United States v. Lopez,

514 U.S. 549 (1995) ............................................. 29

United States v. Republic Steel Corp.,

362 U.S. 482 (1960) ............................................. 30

United States v. Rio Grande Dam &

Irrigation Co.,

174 U.S. 690 (1899) ........................................ 33-34

United States v. Riverside Bayview Homes, Inc.,

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

United States v. Standard Oil Co.,

384 U.S. 224 (1966) .................................. 29-30, 33

United States v. Stoeco Homes, Inc.,

498 F.2d 597 (3d Cir. 1974) ................................. 32

United States v. U.S. Steel Corp.,

328 F. Supp. 354 (N.D. Ind. 1970) ...................... 33

Willamette Iron Bridge Co. v. Hatch,

125 U.S. 1 (1888) ................................................. 30

Zabel v. Tabb,

430 F.2d 199 (5th Cir. 1970) ............................... 33

U.S. Constitution

U.S. Const. art. I, § 8, cl. 3........................................ 29

Statutes

5 Stat. 304 (1838) ...................................................... 32

5 U.S.C. §§ 701-706 ................................................... 20

16 U.S.C. § 797(e)...................................................... 37

28 U.S.C. § 1254(1) ..................................................... 1

33 U.S.C. § 401 .......................................................... 31

33 U.S.C. § 403 ..................................................... 30-32

33 U.S.C. § 407 .......................................................... 34

33 U.S.C. § 466a(d)(1) (1952).................................... 34

33 U.S.C. § 466g(a) (Suppl. III 1962) ....................... 34

33 U.S.C. § 466g(c)(5) (Suppl. I 1966) ...................... 34

33 U.S.C. §§ 1251-1388 ......................................... 4, 45

33 U.S.C. § 1251(b) ............................................. 15, 46

33 U.S.C. § 1311(a) ............................................... 9, 25

33 U.S.C. § 1318 ........................................................ 18

33 U.S.C. § 1319(a)(3) ............................................... 19

33 U.S.C. § 1342(a) ................................................... 10

33 U.S.C. § 1342(b) ................................................... 10

33 U.S.C. § 1344(a) ................................................... 10

33 U.S.C. § 1344(e).................................................... 51

33 U.S.C. § 1344(g) ................................................... 10

33 U.S.C. § 1344(g)(1) ............................................... 27

33 U.S.C. § 1344(h) ................................................... 10

33 U.S.C. § 1362(7) .............................. 1, 4-5, 9, 25, 44

33 U.S.C. § 1362(8) ..................................................... 9

33 U.S.C. § 1362(12) ............................................. 9, 25

33 U.S.C. § 1362(14) ................................................. 51

43 U.S.C. § 982 .......................................................... 27

1890 Rivers and Harbors Act,

Ch. 907, 26 Stat. 426 ........................................... 30

1899 Rivers and Harbors Act,

Ch. 425, 30 Stat. 1121 .................................... 30-33

Clean Water Act of 1977, Pub. L. No. 95-217,

91 Stat. 1566 (1977)............................................. 27

Federal Water Pollution Control Act,

Pub. L. No. 80-845, 62 Stat. 1155 (1948) ............ 34

Federal Water Pollution Control Act

Amendments of 1961,

Pub. L. No. 87-88, 75 Stat. 204 ........................... 34

Federal Water Power Act,

Ch. 285, 41 Stat. 1063 (1920) .............................. 37

National Water Commission Act,

Pub. L. No. 90-515, 82 Stat. 868 (1968) .............. 41

Oil Pollution Control Act of 1924,

Ch. 316, 43 Stat. 604 ........................................... 35

Outdoor Recreation Resources Review Act,

Pub. L. No. 85-470, 72 Stat. 238 (1958) .............. 27

Pub. L. No. 92-500, 86 Stat. 816 (1972) ................... 27

Public Health Service Act of 1912,

Ch. 288, 37 Stat. 309 ........................................... 35

Public Utility Holding Company Act of 1935,

Pub. L. No. 74-333, 49 Stat. 803 ......................... 37

Water Quality Act of 1965,

Pub. L. No. 89-234, 79 Stat. 903 ......................... 34

Wetland Loan Act, Pub. L. No. 87-383,

75 Stat. 813 (1961) .............................................. 27

Regulations

33 C.F.R. § 209.260(a)-(d) (Suppl. 1946) .................. 36

33 C.F.R. § 209.260(e)(1) (1975) ............................... 40

33 C.F.R. § 209.260(f) (1975) ............................... 40-41

33 C.F.R. § 323.2(a)(2)-(5), (d) (1978) ....................... 12

33 C.F.R. § 323.2(c) (1978)........................................ 12

33 C.F.R. § 328.3(a) (2008) ................................ 1-3, 12

33 C.F.R. § 328.3(b) (2008) ......................... 1, 3, 12, 25

33 C.F.R. § 328.3(c) (2008)................................... 1, 3-4

33 C.F.R. § 330.2(d) (1996) ....................................... 51

40 C.F.R. § 122.2 (2008)............................................ 12

xii

40 C.F.R. § 125.1(p)(2) (1974) ................................... 11

40 C.F.R. § 125.1(p)(4) (1974) ................................... 11

40 C.F.R. § 125.1(p)(6) (1974) ................................... 11

40 C.F.R. § 230.3(s) (2008)........................................ 12

40 C.F.R. § 230.3(t) (2008) ........................................ 12

Other Authorities

38 Fed. Reg. 13,528 (May 22, 1973) ......................... 11

39 Fed. Reg. 12,115 (Apr. 3, 1974) ........................... 11

42 Fed. Reg. 37,122 (July 19, 1977) ......................... 12

51 Fed. Reg. 41,206 (Nov. 13, 1986) ......................... 12

61 Fed. Reg. 65,874 (Dec. 13, 1996) ......................... 51

65 Fed. Reg. 12,818 (Mar. 9, 2000)........................... 12

86 Fed. Reg. 69,372 (Dec. 7, 2021) ....................... 5, 12

Ablard & O’Neill, Wetland Protection

and Section 404 of the Federal Water

Pollution Control Act Amendments of

1972: A Corps of Engineers

Renaissance, 1 Vt. L. Rev. 51 (1976) ............. 31, 41

Albrecht & Nicklesburg, Could SWANCC Be

Right? A New Look at the Legislative History

of the Clean Water Act, 32 Envtl. L. Rep.

News & Analysis 11042 (2002) ........................... 39

xiii

Barry, The Evolution of the Enforcement

Provisions of the Federal Water Pollution

Control Act: A Study of the Difficulty in

Developing Effective Legislation,

68 Mich. L. Rev. 1103 (1970).................... 34-35, 38

Bickett, The Illusion of Substance: Why Rapanos

v. United States and Its Resulting

Regulatory Guidance Do Not Significantly

Limit Federal Regulation of Wetlands,

86 N.C. L. Rev. 1032 (2008) ................................ 47

Bodine, Examining the Term “Waters Of The

United States” in Its Historical Context, Ctr.

for the Study of the Admin. State, Policy Br.

No. 4 (Jan. 2022), https://bit.ly/3rURu9L ........... 39

Edelman, Federal Air and Water Control:

The Application of the Commerce Power to

Abate Interstate and Intrastate Pollution,

33 Geo. Wash. L. Rev. 1067, 1073 (1965) ...... 39-40

EPA, Urbanization – Stormwater Runoff,

available at https://bit.ly/3CS1eWi

(last visited Apr. 5, 2022) .................................... 46

Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527 (1947)...... 36-37

H.R. Rep. No. 92-1323 (1972) .............................. 38-39

Larkin, The Clean Water Act and the Void-forVagueness Doctrine, 20 Geo. J.L. & Pub. Pol’y

(forthcoming 2022), https://bit.ly/3Dbi3M0 ........ 48

xiv

Liebesman, et al., Rapanos v. United States:

Searching for a Significant Nexus Using

Proximate Causation and Foreseeability

Principles, 40 Envtl. L. Rep. News &

Analysis 11242 (2010) ......................................... 47

Mandelker, Practicable Alternatives for

Wetlands Development Under the Clean

Water Act, 48 Envtl. L. Rep. News &

Analysis 10894 (2018) ......................................... 10

Mitsch & Gosselink, Wetlands (5th ed. 2015) .......... 27

Nat’l Water Comm’n,

Water Policies For The Future (1973) ............ 41-42

Reply Brief for the United States,

United States v. Riverside Bayview Homes,

Inc., No. 84-701, 1985 WL 669804 (1985) ........... 13

Rogers, Environmental Quality Control,

3 Nat. Res. Law. 716 (1970) ................................ 38

S. Rep. No. 92-414 (1971), reprinted in

2 Cong. Research Serv., A Legislative

History of the Water Pollution Control Act

Amendments of 1972 (1973) ................................ 42

Webster’s Second New International

Dictionary (2d ed. 1954) ............................ 6, 16, 26

Opinions Below

The panel opinion of the court of appeals is

published at 8 F.4th 1075 (9th Cir. 2021), and is

reproduced in the Appendix to the Petition for Writ of

Certiorari (Cert. App.) beginning at A-1. The opinion

of the district court is not reported but is available at

2019 WL 13026870, and is reproduced beginning at

Cert. App. B-1.

Jurisdiction

The judgment of the court of appeals was entered

on August 16, 2021. The petition for a writ of

certiorari was filed on September 22, 2021, and the

petition was granted on January 24, 2022.

Jurisdiction is conferred by 28 U.S.C. § 1254(1).

Statutory and Regulatory Provisions at Issue

•

33 U.S.C. § 1362(7):

The term “navigable waters” means the

waters of the United States, including the

territorial seas.

•

33 C.F.R. § 328.3(a), (b), (c) (2008):

For the purpose of this regulation these

terms are defined as follows:

(a) The term waters of the United

States means

(1) All waters which are currently

used, or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including all waters which are

subject to the ebb and flow of the tide;

(2) All interstate

interstate wetlands;

waters

including

(3) All other waters such as intrastate

lakes,

rivers,

streams

(including

intermittent streams), mudflats, sandflats,

wetlands, sloughs, prairie potholes, wet

meadows, playa lakes, or natural ponds,

the use, degradation or destruction of

which could affect interstate or foreign

commerce including any such waters:

(i) Which are or could be used by

interstate or foreign travelers for

recreational or other purposes; or

(ii) From which fish or shellfish are or

could be taken and sold in interstate or

foreign commerce; or

(iii) Which are used or could be used for

industrial purposes by industries in

interstate commerce;

(4) All impoundments of waters

otherwise defined as waters of the United

States under the definition;

(5) Tributaries of waters identified in

paragraphs (a) (1) through (4) of this

section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other

than waters that are themselves wetlands)

identified in paragraphs (a) (1) through (6)

of this section.

(8) Waters of the United States do not

prior

converted

cropland.

include

Notwithstanding the determination of an

area’s status as prior converted cropland by

any other Federal agency, for the purposes

of the Clean Water Act, the final authority

regarding Clean Water Act jurisdiction

remains with EPA.

Waste treatment systems, including

treatment ponds or lagoons designed to

meet the requirements of CWA (other than

cooling ponds as defined in 40 CFR

423.11(m) which also meet the criteria of

this definition) are not waters of the United

States.

(b) The term wetlands means those

areas that are inundated or saturated by

surface or ground water at a frequency and

duration sufficient to support, and that

under normal circumstances do support, a

prevalence of vegetation typically adapted

for life in saturated soil conditions.

Wetlands generally include swamps,

marshes, bogs, and similar areas.

means

term

adjacent

bordering, contiguous, or neighboring.

Wetlands separated from other waters of

the United States by man-made dikes or

barriers, natural river berms, beach dunes

and the like are “adjacent wetlands.”

Introduction

In 2007, Petitioners Michael and Chantell Sackett

set out to build a modest family home on a two-thirdsof-an-acre lot in an established residential

neighborhood near Priest Lake, Idaho. Fifteen years

later, those plans remain on indefinite hold. Not long

after the Sacketts started construction, Respondent

United States Environmental Protection Agency

ordered all work to stop, on pain of crushing fines,

because it asserted that the Sacketts’ land contains

“navigable waters,” 33 U.S.C. § 1362(7), regulated

under the Clean Water Act, id. §§ 1251-1388.

The Sacketts’ property contains no stream, river,

lake, or similar waterbody. Yet EPA persists in its

view that the Sacketts must obtain federal approval

to build on their lot. It contends, and the Ninth Circuit

agreed, that the Sacketts’ proposed house requires a

Clean Water Act permit because: Priest Lake is a

navigable water → A non-navigable creek connects to

Priest Lake → The non-navigable creek is connected

to a non-navigable, man-made ditch → The nonnavigable, man-made ditch is connected to wetlands

→ These wetlands, though separated from the

Sacketts’ lot by a thirty-foot-wide paved road, are

nevertheless “similarly situated” to wetlands alleged

to exist on the Sacketts’ lot → These alleged wetlands

on the Sacketts’ property, aggregated with the

wetlands across the street, bear a “significant nexus”

to Priest Lake. See Cert. App. A-33 to A-36; C-3, C-8,

C-13. As circuitous and strained as this theory is, it

gets even worse. For, as EPA itself recognizes, no

water at all—surface or subsurface—flows from the

Sacketts’ lot to the wetlands or to the ditch across the

street. See Joint Appendix (JA) 28-29, 32.

The Sacketts’ ordeal is emblematic of all that has

gone wrong with implementation of the Clean Water

Act following this Court’s attempt in Rapanos v.

United States, 547 U.S. 715 (2006), to adopt a

workable standard for delimiting the Act’s reach. The

years of confusion since Rapanos have shown that

regulated citizens, the lower courts, and EPA need at

long last a clear and definitive articulation of the Act’s

scope. But that articulation cannot be the significant

nexus test from Justice Kennedy’s concurring

Rapanos opinion, which the Ninth Circuit applied to

affirm EPA’s jurisdiction, Cert. App. A-32, and which

EPA is now proposing to codify, see 86 Fed. Reg.

69,372, 69,373 (Dec. 7, 2021). As Justice Scalia

observed in his Rapanos plurality opinion, even on

paper, the “significant nexus” test amounts to a

“flouting of statutory command.” Rapanos, 547 U.S. at

756. And as he accurately foresaw, because that test

is “perfectly opaque,” it “is not likely to constrain an

agency whose disregard for the statutory language

has been so long manifested.” Id. at 756 n.15. See infra

Argument II.

The Court can chart a better course for the Clean

Water Act by adopting the following two-step

framework for determining when a wetland is among

“the waters of the United States” subject to the Act’s

regulation of “navigable waters,” 33 U.S.C. § 1362(7).

•

Step one: is the wetland inseparably bound up

with a “water”—i.e., a stream, ocean, river,

lake, or similar hydrogeographic feature that in

ordinary parlance would be called a “water”—

by means of a continuous surface-water

connection, such that it is difficult to tell where

the wetland ends and the “water” begins?

•

Step two: is the “water” among “the waters of

the United States,” i.e., those waterbodies

subject to Congress’s authority over the

channels of interstate commerce?

The framework’s first step proceeds on the

premise, long acknowledged by this Court, that

wetlands are not “waters” in their own right. See

Rapanos, 547 U.S. at 741 n.10 (“[O]ur opinion [in

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 132 (1985),] recognized that unconnected

wetlands could not naturally be characterized as

‘waters’ at all . . . .”). Rather, a wetland can be

considered a “water” only where it is “inseparably

bound up” with a “water,” see Riverside Bayview, 474

U.S. at 134—namely, a hydrogeographic feature

described in ordinary parlance as a “stream,” “ocean,”

“river,” “lake,” or the like, see Rapanos, 547 U.S. at

739 (quoting Webster’s Second New International

Dictionary 2882 (2d ed. 1954)). And a wetland is

inseparably bound up with a “water” only where the

wetland has such a significant physical nexus to the

“water” that it is difficult to say where the wetland

ends and the authentic “water” begins—in other

words, a shoreline wetland. See Rapanos, 547 U.S. at

742-43; Solid Waste Agency of N. Cook County

(SWANCC) v. U.S. Army Corps of Eng’rs, 531 U.S.

159, 167, 171 (2001). See infra Argument I.A.

Determining that a wetland can be deemed a

“water” does not, however, establish EPA’s

jurisdiction. See Rapanos, 547 U.S. at 731. A finding

must also be made that the “water” is “of the United

States”—thus, the second step of the Sacketts’

proposed framework. In extending federal jurisdiction

to “the waters of the United States,” Congress was

exercising “its commerce power over navigation.”

SWANCC, 531 U.S. at 168 n.3. More than a century of

statutory precedents, judicial decisions, and agency

administration leading up to the Clean Water Act’s

passage demonstrates that, by 1972, such power

undoubtedly extended to (i) waters that do, or once

did, or could with reasonable improvement, serve as

channels of interstate commerce, as well as (ii) those

activities, wherever located, that harm such aquatic

interstate highways. See infra Argument I.B.1. It is

also true, however, that Congress in 1972 wished to go

beyond prior statutes and enforcement practice that

embodied this more traditional understanding of

federal authority over aquatic channels of interstate

commerce. See Rapanos, 547 U.S. at 731. Indeed, the

debates surrounding federal water quality law in the

years leading up to the Clean Water Act’s passage

show that Congress wished to regulate to the full limit

of its channels of commerce power. But that does not

mean that Congress intended to regulate all waters in

the country. Rather, to respect the states’ historical

role in regulating land-use and water resources,

Congress chose to extend the new statute’s assertion

of federal jurisdiction no farther upstream from

traditional navigable waters than those wholly

intrastate waters that, when combined with nonaquatic means of transportation, form a continuous

channel of interstate commerce. See infra Argument

I.B.2-3.

In contrast to the significant nexus standard, the

two-step framework respects Congressional intent by

adhering closely to the statutory text while, at the

same time, giving due regard to the states’ traditional

pre-eminence (recognized by the Tenth Amendment)

in regulating land and water resources. And unlike

the significant nexus standard, the two-step

framework respects the property and due process

rights of landowners like the Sacketts, providing them

a rule that requires only ordinary visual observation

and thus one that any layman can readily and

accurately employ.

Applying the two-step framework to this case’s

record compels a finding that the Sacketts’ property

contains no “waters of the United States.” The lot has

no surface-water connection to any “water,” JA 19, 2829, and thus no wetland that may be present on it can

be inseparably bound up with any “water.” Moreover,

the nearest “water of the United States” is Priest

Lake, which is separated from the lot by a gravel road

and a row of lakefront homes. JA 19, 29, 50. See infra

Argument III. Therefore, as elaborated below, EPA

lacks authority over the Sacketts’ property, and the

Ninth Circuit’s judgment affirming that authority

should be reversed.

Statement of the Case

A. The Sacketts’ Thwarted Home-Building

Project

In 2004, the Sacketts purchased a vacant lot in a

residential subdivision near Priest Lake, Idaho. See

JA 15. At its north end, the lot is bounded by the paved

Kalispell Bay Road, on the other side of which runs a

manmade ditch that drains about 35 acres of

wetlands. JA 32-33; Cert. App. C-13. To the south of

the lot, across the graveled Old Schneider Road, is a

row of houses that fronts Priest Lake. JA 19, 29, 50;

App. E-1. No surface-water connection exists between

the Sacketts’ lot and the roadside ditch, or between

the lot and Priest Lake. JA 19, 28-29. Although a

subsurface connection is thought to be present, the

alleged flow is from the ditch and wetlands north of

Kalispell Bay Road south to the Sacketts’ lot. See JA

30-31.

In late April, 2007, the Sacketts began

construction of their family home. JA 13. On May 3,

after preliminary earthmoving activities had

commenced, see JA 23-24, officials from EPA and the

United States Army Corps of Engineers entered the

property and informed the Sacketts’ construction

workers that the lot likely contains wetlands subject

to regulation under the Clean Water Act. See JA 1819. These officials therefore recommended that all

work cease until the Sacketts’ compliance with the Act

could be established. See id.

B. The Clean Water Act’s Regulation of

Pollutant Discharges

The Clean Water Act regulates discharges of

“pollutants” from “point sources” to “navigable

waters.” 33 U.S.C. §§ 1311(a), 1362(12). The Act

defines “navigable waters” as “the waters of the

United States, including the territorial seas.” Id.

§ 1362(7). Although the Act defines “territorial seas,”

id. § 1362(8), it does not define “the waters of the

United States.” See id.

Nonexempt discharges to “navigable waters”

require a permit from either EPA (called a National

Pollutant Discharge Elimination Program, or NPDES,

permit) or, if the discharge involves “dredged or fill

material,” from the Corps (commonly called a Section

404 permit).1 See id. §§ 1342(a), 1344(a). In practice,

the Clean Water Act’s permitting regime is timeconsuming and expensive. See U.S. Army Corps of

Eng’rs v. Hawkes Co., Inc., 578 U.S. 590, 594-95 (2016)

(observing that a Section 404 permit typically takes

more than two years and $250,000 in consulting costs

to secure). Even when obtained, a permit can result in

significant changes to the applicant’s intended

operations and substantially limit the use of the

property. See Mandelker, Practicable Alternatives for

Wetlands Development Under the Clean Water Act, 48

Envtl. L. Rep. News & Analysis 10894, 10913 (2018)

(“The [Clean Water Act’s] practicable alternatives

requirement functions . . . as a conditioned permit that

requires project modifications to reduce a

development’s effect on wetlands resources.”).

Discharging pollutants without a required permit, or

violating permit conditions, risks cease-and-desist

orders, compliance orders, administrative penalties,

civil penalties and injunctions, and even criminal

prosecution. See generally Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 5253 (1987).

The significant costs and liabilities that the Clean

Water Act can impose underscore the importance of

clearly demarcating the Act’s reach. Unfortunately,

The Act authorizes EPA to transfer NPDES and Section 404

permitting authority to the states and territories. See 33 U.S.C.

§§ 1342(b), 1344(g)-(h).

construing the meaning of “navigable waters” has

proved to be a vexing task for the courts, the agencies,

and the regulated public. This is especially true with

respect to non-navigable wetlands such as those

alleged to exist on the Sacketts’ lot.

Shortly after the Clean Water Act was passed,

EPA and the Corps adopted regulations defining

“navigable waters.” 38 Fed. Reg. 13,528, 13,529

(May 22, 1973); 39 Fed. Reg. 12,115, 12,119 (Apr. 3,

1974). EPA’s interpretation was quite broad, see 40

C.F.R. § 125.1(p)(2), (4), (6) (1974) (claiming authority

over all “[t]ributaries” of navigable waters, as well as

all “lakes, rivers, and streams” used by “interstate

travelers” or used in interstate “industrial”

commerce), whereas the Corps’ was notably more

limited. Guided by this Court’s longstanding

construction of the phrase “navigable waters of the

United States,” as it was employed in predecessor

statutes, the Corps construed the Act principally to

reach interstate waters that are navigable in fact or

readily susceptible of being rendered so.2 See

Rapanos, 547 U.S. at 723 (citing The Daniel Ball, 77

U.S. (10 Wall.) 557, 563 (1870), and 39 Fed. Reg. at

12,119). In 1975, a federal district court rejected this

interpretation as too narrow. Natural Res. Def.

Council, Inc. v. Callaway, 392 F. Supp. 685, 686

(D.D.C. 1975). The Corps did not appeal the ruling.

Instead, following EPA’s example, the Corps

promulgated much broader regulations. See Rapanos,

547 U.S. at 724.

2 The Corps’ regulations did, however, go somewhat beyond a

strictly traditional understanding of the commerce power over

interstate aquatic channels. See infra at 41.

These revised regulations were meant to extend

the scope of “navigable waters” to the outer limits of

Congress’s power to regulate interstate commerce.

Rapanos, 547 U.S. at 724 (citing 42 Fed. Reg. 37,122,

37,144 n.2 (July 19, 1977)). Thus, federal permitting

authority was asserted not just over interstate waters,

but also intrastate waters with various relationships

to interstate or foreign commerce, as well as all

tributaries of such waters, and all “wetlands”3 that are

“adjacent” to, i.e., bordering, contiguous, or

neighboring, any regulated water. 33 C.F.R.

§ 323.2(a)(2)-(5), (d) (1978).4 See Rapanos, 547 U.S. at

724. In the ensuing years, EPA and the Corps also

claimed authority over isolated waters used by

migratory birds, pursuant to the so-called “Migratory

Bird Rule,” id. at 725 (citing 51 Fed. Reg. 41,206,

41,217 (Nov. 13, 1986)), as well as “ephemeral

streams” and “drainage ditches” with an “ordinary

high water mark,” id. (citing 65 Fed. Reg. 12,818,

12,823 (Mar. 9, 2000)).

These were defined as “those areas that are inundated or

saturated [so as to support] a prevalence of vegetation typically

adapted for life in saturated soil conditions.” 33 C.F.R. § 323.2(c)

(1978).

These are essentially the same provisions that, in subsequently

recodified form, the Ninth Circuit applied below, see Cert. App.

A-6; 33 C.F.R. § 328.3(a), (b) (2008); 40 C.F.R. §§ 122.2, 230.3(s),

(t) (2008), and that the agencies are now applying throughout the

country, see 86 Fed. Reg. at 69,373.

C. The Court’s Precedents Interpreting “the

waters of the United States”

The Court has addressed the geographic scope of

the Clean Water Act three times.

First, in Riverside Bayview, the Court considered

whether EPA and the Corps had reasonably

interpreted the Act to regulate wetlands that were

immediately adjacent to a navigable-in-fact water.5

See 474 U.S. at 124. The Court began its statutory

analysis by citing its then recent decision in Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837 (1984), for the proposition that the Court must

defer to an agency’s reasonable interpretation of

ambiguous text within a statute that the agency is

charged with administering. Riverside Bayview, 474

U.S. at 131. Looking to the text of the Clean Water

Act, the Court conceded that, on “a purely linguistic

level, it may appear unreasonable to classify ‘lands,’

wet or otherwise, as ‘waters.’” Id. at 132. But weighing

in favor of EPA and the Corps’ view was Congress’s

aim, as the Court understood it, to regulate at least

some waters beyond those traditionally subject to

Congress’s channels of commerce power, see id. at 133,

138-39, as well as the agencies’ scientific judgment

that wetlands play an important role in maintaining

such waters, id. at 133-34. In light of this legislative

intent and administrative expertise, the Court

concluded that the agencies had reasonably resolved

As the government described the site at issue in its briefing

before the Court, “it would not be an exaggeration to state that

one could, after wading through a cattail marsh, swim directly

from Riverside’s property to the Great Lakes.” Reply Brief for the

United States at 2, No. 84-701, 1985 WL 669804 (1985).

the line-drawing ambiguity raised by the Act’s

regulation of “waters” by including within such

aquatic features those wetlands that are “inseparably

bound up with the ‘waters’ of the United States.” Id.

at 134. At the same time, the Court cautioned that its

affirmance of the agencies’ authority was limited to

the regulation of such inseparably bound-up

wetlands. See id. at 131 & n.8.

Second, in SWANCC, the Court considered

whether EPA and the Corps may regulate

“nonnavigable, isolated, intrastate waters,” based on

how the use of such waters could affect interstate

commerce, pursuant to the Migratory Bird Rule. See

531 U.S. at 162. The Court began its analysis by

repeating that Riverside Bayview had upheld the

agencies’ extension of the Act only to “wetlands that

actually abutted on a navigable waterway.” Id. at 167.

According to SWANCC, it was the “significant nexus”

of geographic propinquity between wetlands and the

adjacent waters with which they were “inseparably

bound up” that led the Court in Riverside Bayview to

affirm the agencies’ authority over such wetlands. Id.

(quoting Riverside Bayview, 474 U.S. at 134). This

kind of shoreline connection is, in contrast,

necessarily absent with respect to features like the

ponds at issue in SWANCC, which were “not adjacent

to open water.” Id. at 168.

In light of that important distinction, the Court in

SWANCC concluded that the Act cannot be stretched

to reach such isolated waters. Besides the Act’s text,

support for the Court’s conclusion was to be found in

the Corps’ initial 1974 regulations, which focused on

those waters traditionally subject to Congress’s power

over the channels of commerce. See id. As the Court

underscored, the agencies “put forward no persuasive

evidence that the Corps mistook Congress’ intent in

1974,” id.—namely, that the Act was merely an

exercise of Congress’s commerce power over

navigation, id. at 168 n.3. Accord id. at 172 (“The term

‘navigable’ has at least the import of showing us what

Congress had in mind as its authority for enacting the

[Clean Water Act]: its traditional jurisdiction over

waters that were or had been navigable in fact or

which could reasonably be so made.”). The Court

found unpersuasive as well the agencies’ reliance on

Congress’s 1977 amendments to the Act, concluding

that their oblique references to “wetlands” were

“unenlightening” as to the scope of the term “waters.”

Id. at 171. Finally, the Court observed that accepting

the agencies’ reading of the Act to reach isolated

waters would, by trenching upon “the States’

traditional and primary power over land and water

use,” raise “significant constitutional and federalism

questions.” Id. at 174. Yet, far from wanting to

implicate such issues, “Congress chose to ‘recognize,

preserve, and protect the primary responsibilities and

rights of States . . . to plan the development and use

. . . of land and water resources.’” Id. (quoting 33

U.S.C. § 1251(b)). The Court therefore invalidated the

agencies’ assertion of authority over the isolated

ponds at issue.

Lastly, in Rapanos, the Court was presented with

the middle question between Riverside Bayview and

SWANCC—namely, whether the Act allows for the

regulation of wetlands adjacent to non-navigable

ditches and other waters that ultimately flow into

traditional navigable waters. See Rapanos, 547 U.S.

at 729-30. Five members of the Court held the

agencies’ regulations asserting control over such

waters to be invalid insofar as they purport to regulate

all tributaries of traditionally navigable waters and

all wetlands adjacent to such tributaries. Id. at 728

(plurality opinion); id. at 759 (Kennedy, J., concurring

in the judgment). But no opinion explaining why the

Act cannot be so construed garnered a majority of the

Court.

Writing for himself and three other members of

the Court, Justice Scalia began his analysis by noting

that, however the qualifiers “navigable” and “of the

United States” may limit the Act’s scope, that scope

surely can extend no farther than “waters.” Id. at 731.

Justice Scalia then proceeded to explain, based on

(i) an ordinary meaning analysis of the statutory text,

(ii) the Court’s rulings in Riverside Bayview and

SWANCC, and (iii) Congress’s desire to preserve

traditional state authority over land and water, see id.

at 732-38, that “waters” include “only those relatively

permanent, standing or continuously flowing bodies of

water ‘forming geographic features’ that are described

in ordinary parlance as ‘streams[,] . . . oceans, rivers,

[and] lakes,’” id. at 739 (quoting Webster’s Second at

2882).

“Wetlands” would not normally fall under such a

definition. See Riverside Bayview, 474 U.S. at 132. But

as Justice Scalia pointed out, there is a difference

between considering a wetland on its own to be a

“water,” and concluding that inevitably some

wetlands may be regulated as “waters,” given the

“inherent ambiguity in drawing the boundaries of any

‘waters.’” Rapanos, 547 U.S. at 740. It was, the

plurality concluded, only the latter concession to

agency interpretation that Riverside Bayview had

made, one that SWANCC had confirmed by

characterizing Riverside Bayview as a case about “the

close connection between waters and the wetlands

that they gradually blend into.” Id. at 741. As Justice

Scalia underscored, the “significant nexus” that, in

SWANCC’s recounting, Riverside Bayview had

upheld, was a physical shoreline-connection arising

from “the inherent ambiguity in defining where water

ends and abutting (‘adjacent’) wetlands begin.” Id. at

742. And it was that line-drawing ambiguity which

permitted “the Corps’ reliance on ecological

considerations” to regulate “all abutting wetlands as

waters.” Id. Thus, “only those wetlands with a

continuous surface connection to bodies that are

‘waters of the United States’ in their own right, so that

there is no clear demarcation between ‘waters’ and

wetlands, are ‘adjacent to’ such waters and covered by

the Act.” Id. Put another way, the surface-water

connection must be so substantial that the wetland

and abutting water are rendered “indistinguishable.”

Id. at 755 (emphasis in original).

Although Justice Kennedy provided the fifth vote

to support the Court’s judgment rejecting the

agencies’ expansive regulation, he disagreed with the

plurality’s rationale for that rejection. Id. at 759

(Kennedy, J., concurring in the judgment). Instead of

a boundary-drawing-problem test for determining

when a wetland may be deemed a “water,” Justice

Kennedy proposed a “significant nexus” standard. Id.

According to this rule, a wetland may be regulated if

it, either alone or in combination with other “similarly

situated” wetlands in the “region,” significantly

affects the physical, chemical, and biological integrity

of “waters more readily understood as ‘navigable.’” Id.

at 780. Thus, unlike the plurality’s test, the

significant nexus test requires no hydrological

connection of any quantity, nor does it limit

jurisdiction to those wetlands that are inseparably

bound up with adjacent waters. See id. at 768-73.

The Chief Justice joined the plurality but

concurred separately to lament the agencies’ failure to

issue new regulations after SWANCC had invalidated

the Migratory Bird Rule. Id. at 757-58 (Roberts, C.J.,

concurring). He also expressed concern that, due to

the lack of a majority opinion, “[l]ower courts and

regulated entities” would lack guidance “on precisely

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

Water Act” and would be left “to feel their way on a

case-by-case basis.” Id. (citing Marks v. United States,

430 U.S. 188 (1977)).

D. EPA’s Assertion of Jurisdiction Over the

Sacketts’ Lot, and the Sacketts’ Lawsuit

Less than a year after Rapanos, the Sacketts—

“feel[ing] their way”—began construction of their

family home, only to be stopped days later by EPA and

Corps officials who, as noted above, informed the

Sacketts’ crew that construction should cease because

a federal permit was likely required. See JA 18-19.

Following the agencies’ initial site visit, EPA sent the

Sacketts a “Request for Information” concerning their

building project. See Administrative Record (AR)

00203-00212. Cf. 33 U.S.C. § 1318 (authorizing EPA

to demand from any owner or operator of a “point

source” “such . . . information as [EPA] may

reasonably require”). In their written response, the

Sacketts explained that they had all local building

permits in hand, that their site was bordered by

developed properties and roads, and that nothing in

their deed of title or other paperwork suggested that

their lot contains wetlands. JA 24-25. A couple of

months later, EPA followed up with a voicemail,

informing the Sacketts that the agency needed to do

“additional research” and inquiring as to whether the

Sacketts would comply with its “request” that they

remove the fill from their property.6 See AR00236.

Answering by letter, the Sacketts requested “a

response from the EPA in writing as to a rational

reason why the property . . . needs to be reclaimed,”

while noting that the agency had still not provided

“any official notification in writing of any violation.”

Id.

That notification was delivered in November,

2007, in the form of an administrative compliance

order. See AR00237-00248. Cf. 33 U.S.C. § 1319(a)(3)

(authorizing EPA to issue such orders, “on the basis of

any information available,” for a variety of alleged

violations). This EPA directive asserted that the

Sacketts’ lot contains “navigable waters” subject to

the Clean Water Act. Specifically, EPA found that the

property contains “wetlands” as defined by regulation,

and that these alleged wetlands are among “the

waters of the United States” because of their alleged

relationship to Priest Lake. See AR00239. Accord

Cert. App. D-5 to D-6 (amended compliance order); C6 In a prior telephone message, EPA personnel had informed

Chantell Sackett that the Sacketts “would not have gotten a

permit to build there” and thus that the agencies would “ask

[them] to restore [the] site [and] build elsewhere.” AR00182

(notes from EPA official Carla Fromm).

1, C-3, C-8 (jurisdictional determination asserting

that the alleged wetlands are regulable because of

their “adjacen[cy]” to the roadside ditch, a “tributary”

of Priest Lake). Thus, EPA’s order determined that

the Sacketts had violated the Act by trying to build

their home without first having obtained a Clean

Water Act permit. App. A-9. The Sacketts were

therefore ordered to refrain from further construction

and to immediately begin to “restore” their property.

Id. Failure to comply would subject them to tens of

thousands of dollars per day in administrative and

civil penalties. Id.

Believing that their lot does not contain

“navigable waters” subject to federal authority, the

Sacketts requested from EPA an administrative

hearing on the agency’s order, to no avail. See Sackett

v. EPA, 566 U.S. 120, 125 (2012). The Sacketts

therefore proceeded, in April, 2008, to file an action

under the Administrative Procedure Act, 5 U.S.C.

§§ 701-706, to challenge EPA’s assertion of authority

over their lot.7 Cert. App. A-9. They contended that

EPA’s compliance order was arbitrary and capricious

because the Clean Water Act does not grant EPA

authority to regulate their property. App. A-9. EPA

moved to dismiss the suit, arguing that the

compliance order was not judicially reviewable. See

App. A-10 to A-11. The district court granted EPA’s

7 Prior to the action’s filing, EPA had made several amendments

to the compliance order, each postponing the deadline to

complete “remediation” of the site. See Cert. App. A-10, D-1 to D2. Shortly after filing, EPA amended the order again to eliminate

or to extend some of the deadlines and remedial requirements,

see App. D-2, but the amended order still asserted jurisdiction

over the Sacketts’ property and still concluded that the Sacketts

had violated the Act, App. D-5 to D-7.

motion and the Ninth Circuit affirmed. See Sackett v.

EPA, 622 F.3d 1139, 1147 (9th Cir. 2010). This Court

granted certiorari and reversed, holding that the

order constituted “final agency action” subject to

judicial review under the APA. Sackett, 566 U.S. at

131.

On remand to the district court, the parties crossmoved for summary judgment. Cert. App. B-1, B-3 to

B-4. The district court granted summary judgment to

EPA, B-32, ruling among other things that EPA had

authority to regulate the wetlands alleged to exist on

the Sacketts’ lot pursuant to the significant nexus

test, App. B-27 to B-30. The Sacketts appealed again.

In the Ninth Circuit, the Sacketts renewed their

challenge to EPA’s jurisdiction, principally on the

ground that the Rapanos plurality contains the

controlling rule of law and thus that the district court

had erred by applying Justice Kennedy’s concurrence

to determine the scope of EPA’s regulatory authority

over their lot. See Cert. App. A-22 to A-25. The

Sacketts contended, among other points, that any

wetlands on their property are beyond the Act’s ambit

because the Rapanos plurality limits federal authority

to wetlands that have a continuous surface-water

connection to regulated waters, and their lot has no

such connection. See App. A-25.

The Ninth Circuit affirmed the district court’s

judgment that EPA has authority over the wetlands

alleged to exist on the Sacketts’ property.8 The court

Before reaching the merits, the Ninth Circuit confirmed that

the Sacketts’ appeal remains live despite EPA’s voluntary, non8

began its merits analysis with a review of circuit case

law applying the Marks framework for interpreting

fractured decisions like Rapanos. Cert. App. A-25 to

A-31. Rejecting the Sacketts’ argument that the

Rapanos plurality governs, the court held that the

significant nexus test set forth in Justice Kennedy’s

concurrence should control. App. A-25 to A-31. The

court then affirmed EPA’s determination that the

agency has jurisdiction over the Sacketts’ lot because

(i) the property contains, within the meaning of the

agencies’ regulations, “wetlands” that are “adjacent”

to a “tributary” of Priest Lake (namely, the roadside

ditch), and (ii) the site’s purported two-thirds-of-anacre wetland, in combination with the few dozen acres

of wetlands on the other side of Kalispell Bay Road,

bears a significant nexus to Priest Lake. App. A-32 to

A-36.9

Summary of Argument

The test for determining whether a wetland is

among “the waters of the United States” subject to

regulation under the Clean Water Act requires a twostep analysis. The initial step asks whether a wetland

may be considered a “water.” This step has two

prongs. The first prong requires a finding that the

wetland has a continuous surface-water connection

with a “water,” such that the resulting physical nexus

binding withdrawal of the compliance order during the appeal,

because the Sacketts’ “central legal challenge” to EPA’s

jurisdiction remains “unresolved.” Cert. App. A-14 to A-15, A-17.

The Ninth Circuit also affirmed the district court’s rejection

of the Sacketts’ challenge to EPA’s wetlands delineation of the

Sacketts’ lot. See Cert. App. A-23 n.7. The Sacketts did not seek

this Court’s review as to that issue.

makes the wetland and “water” “inseparably bound

up,” Riverside Bayview, 474 U.S. at 134, to the extent

that it is difficult to say where the wetland ends and

the “water” begins, see Rapanos, 547 U.S. at 742. The

second prong requires a finding that the “water” to

which the wetland is thus connected is a

hydrogeographic feature ordinarily referred to as a

“water,” such as a stream, ocean, river, or lake. See id.

at 739.

The two prongs of the first step are compelled by

the statute’s text, which regulates “waters,” not land

(wet or otherwise) or other features (such as sewer

systems or some manmade ditches) that are not

commonly denominated as “waters.” See id. at 733-34

& 736 n.7. Although the Court in Riverside Bayview

upheld the regulation of wetlands immediately

adjacent to a navigable-in-fact river as “waters,” it did

so only because of the inherent ambiguity in defining

the border between true waters and wetlands

immediately adjacent to and abutting those waters.

See 474 U.S. at 134. Hence, where such a physical

nexus is absent—that is, where there is no linedrawing problem—wetlands and other non-waters

that are merely nearby true “waters” cannot

themselves be deemed to be “waters.” Rapanos, 547

U.S. at 742, 755.

The framework’s second step requires a finding

that the “water” is “of the United States”—in other

words, that it is subject to Congress’s authority over

the channels of interstate commerce. This step follows

from the Court’s conclusion in SWANCC that the Act

is an exercise of Congress’s commerce power over

navigation. 531 U.S. at 168 n.3. Such power

traditionally encompassed various types of interstate

waters, as well as some activities outside those waters

that nevertheless harmed them. But given its

dissatisfaction with the regulatory status quo that

was limited to such waters, Congress had by 1972

determined to go beyond prior statutes and to exercise

the full extent of its channels of commerce power. The

result is a Clean Water Act that regulates not just

traditional navigable waters, but also intrastate

waters that serve as a link in a channel of interstate

commerce. Yet, as SWANCC underscored, there is no

evidence that Congress wished to regulate further,

beyond its channels of commerce power, and thereby

raise serious Tenth Amendment issues. See id. at 168

n.3, 172-74. SWANCC’s assessment of the

Congressional purpose behind the phrase “the waters

of the United States” is confirmed by the nature of the

criticism of the pre-1972 federal regulatory regime,

which ultimately spurred Congress to legislate. The

main trouble as Congress understood it was not that

the pre-1972 system was geographically too narrow,

but rather that it imposed little regulation at the

source of pollution, and that which it did impose was

underenforced.

The two-step framework that the Sacketts

propose is vastly superior to the significant nexus test

employed by the Ninth Circuit. Unlike the two-step

framework, the significant nexus test conflicts with

the statutory text and the Court’s precedents, while

raising troubling federalism concerns and threatening

the right of landowners to fair notice of what the law

demands.

Applying the two-step framework to the record of

this case compels a finding that the Sacketts’ lot

contains no “waters of the United States.” Hence, the

Sacketts are entitled to a declaration that EPA lacks

jurisdiction over their property.

Argument

A Two-Step Framework for Wetlands

Jurisdiction Under the Clean Water Act

A. Step 1: Is There a Continuous

Surface-Water Connection to a “Water”

Such That It Is Difficult to Say Where

the “Water” Ends and the Wetland Begins?

All questions of statutory interpretation begin

with the text. E.g., Ross v. Blake, 578 U.S. 632, 638

(2016). The Clean Water Act regulates the discharge

of pollutants to “navigable waters,” see 33 U.S.C.

§§ 1311(a), 1362(12), which are defined as “the waters

of the United States, including the territorial seas,” id.

§ 1362(7). Thus, the extent to which the Act regulates

wetlands depends in part on, and logically begins

with, whether such features may plausibly be

considered “waters.”

As the Rapanos plurality recognized, deeming

wetlands to be “waters” raises a “textual difficulty”

because a wetland, on its own, is not in ordinary

language a “water.” Rapanos, 547 U.S. at 740 (citing

Riverside Bayview, 474 U.S. at 132). Wetlands, of

course, are lands with some amount of water on them.

See 33 C.F.R. § 328.3(b) (2008). But the Clean Water

Act regulates “the waters,” not “water”—the

significance of the definite article and the plural being

that the statute does not aim to regulate “water in

general.” Rapanos, 547 U.S. at 732. Rather, “the

waters” to be regulated are “‘streams,’ ‘oceans,’

‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming

geographical features.’” Id. at 732-33 (quoting

Webster’s Second at 2882). Cf. S.D. Warren Co. v.

Maine Bd. of Envtl. Protection, 547 U.S. 370, 376

(2006) (relying on Webster’s Second to construe the

term “discharge” as used in the Act). To include among

“waters” such features as “wet meadows, storm sewers

and culverts, directional sheet flow during storm

events, drain tiles, man-made drainage ditches, and

dry arroyos in the middle of the desert” would not only

conflict with the “commonsense understanding” of

“waters,” it would “stretch[] the term . . . beyond

parody.” Rapanos, 547 U.S. at 734. Accordingly, the

“plain language of the statute simply does not

authorize [a] ‘Land Is Waters’ approach to federal

jurisdiction.” Id.10

That the Clean Water Act does not protect

wetlands per se should cause no surprise. After all,

Congress traditionally viewed such features as

nuisances to be eliminated, not “waters” to be

Although the Rapanos plurality was chiefly concerned with

rate of flow or amount of water as the measure to distinguish

waters from non-waters, it acknowledged that such measure is

not a sufficient condition for “water” status. Rapanos, 547 U.S.

at 736 n.7 (observing that “relatively continuous flow is a

necessary condition for qualification as a ‘water’, not an adequate

condition”). Another necessary condition is, as explained in the

text, a determination that the feature is akin to “streams,”

“oceans,” “rivers,” “lakes,” or other hydrogeographic objects

normally considered “waters.” See id.

preserved. See, e.g., 43 U.S.C. § 982 (codification of the

Swamp Land Acts of 1849, 1850, and 1860)

(authorizing transfer of swamp lands to the states in

exchange for draining and rendering them fit for

cultivation). Cf. Mitsch & Gosselink, Wetlands 7 (5th

ed. 2015) (“Wetlands have been depicted as sinister

and forbidding and as having little economic value

throughout most of Western literature and history.”).

And despite Congress’s gradual change in attitude

toward wetlands in the decades leading up to the

Clean Water Act’s passage,11 the 1972 statutory text

is devoid of any mention of them. See Pub. L. No. 92500, 86 Stat. 816, 816-903 (1972).

To be sure, Congress’s 1977 amendments to the

Act added passing references to “wetlands,” among

them in provisions giving EPA the authority to

transfer the Act’s dredge-and-fill permitting to the

states. See Clean Water Act of 1977, Pub. L. No. 95217, § 67(b), 91 Stat. 1566, 1601 (1977), codified at 33

U.S.C. § 1344(g)(1) (authorizing transfer of permitting

authority except for discharges to certain classes of

waters and “wetlands adjacent thereto”).12 Adverting

11 See, e.g., Outdoor Recreation Resources Review Act, Pub. L.

No. 85-470, § 7, 72 Stat. 238, 241 (1958) (recognizing that “lands,

waters, forest, rangelands, wetlands, [and] wildlife . . . serve to

varying degrees and for varying uses outdoor recreation

purposes”); Wetland Loan Act, Pub. L. No. 87-383, § 1, 75 Stat.

813, 813 (1961) (recognizing “the serious loss of important

wetlands and other waterfowl habitat essential to the

preservation of such waterfowl”).

The other references to “wetlands” pertained to the funding

and completion of the National Wetlands Inventory spearheaded

by the Department of the Interior. See 91 Stat. at 1578. As

Riverside Bayview acknowledged, these amendments merely

to those amendments, Riverside Bayview upheld the

regulation of wetlands immediately abutting a

navigable-in-fact water. 474 U.S. at 139. In doing so,

the Court frankly admitted that, on “a purely

linguistic level, it may appear unreasonable to classify

‘lands,’ wet or otherwise, as ‘waters.’” Id. at 132. But

recognizing the “inherent difficulties of defining

precise bounds to regulable waters,” id. at 134, the

Court concluded that the Corps’ determination that

the boundaries of regulated waters should include

their immediately abutting wetlands was a

reasonable interpretation of the Act to which the

Court must defer, see id. at 131, 134. And in

SWANCC, the Court confirmed that Riverside

Bayview holds only that the Act authorizes EPA and

the Corps to regulate “wetlands that actually abutted

on a navigable waterway”—that is, “to regulate

wetlands ‘inseparably bound up with the “waters” of

the United States,’” owing to a “significant nexus” of

direct and immediate physical connection. SWANCC,

531 U.S. at 167 (quoting Riverside Bayview, 474 U.S.

at 134).

Thus, per the plain meaning of the text, the Clean

Water Act does not regulate wetlands standing alone.

Rather, the Act reaches such non-waters only to the

extent that a significant physical nexus (like a

shoreline connection) between wetlands and an

authentic “water”—such as a stream, river, ocean, or

lake—is present, a nexus that raises Riverside

Bayview’s “boundary-drawing problem.” Rapanos, 547

U.S. at 742. In other words, “only those wetlands with

reflected that, to some degree, “wetlands are a concern of the

Clean Water Act.” Riverside Bayview, 474 U.S. at 139.

a continuous surface connection to bodies that are

‘waters of the United States’ in their own right, so that

there is no clear demarcation between ‘waters’ and

wetlands, are ‘adjacent to’ such waters and covered by

the Act.” Id.

B. Step 2: Is the Wetland Among

“the waters of the United States”, i.e.,

subject to Congress’s authority over the

channels of commerce?

1. “[T]he waters of the United States”: a

traditional statutory shorthand for those

waterbodies subject to Congress’s power

to regulate the aquatic channels of

interstate commerce

Pursuant to its power to regulate interstate and

foreign commerce, U.S. Const. art. I, § 8, cl. 3,

Congress may regulate the use and channels of

interstate commerce, the instrumentalities of or

persons or things in interstate commerce, and

activities that substantially affect interstate

commerce. United States v. Lopez, 514 U.S. 549, 55859 (1995). Since Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1 (1824), the Court has recognized that Congress can

regulate navigable waters as an incident of its power

to regulate the channels of interstate commerce. See

id. at 190 (“The power over commerce, including

navigation, was one of the primary objects for which

the people of America adopted their government

. . . .”). It was not, however, until the end of the

nineteenth century that Congress exercised its

aquatic channels of commerce power on a national

basis. See United States v. Standard Oil Co., 384 U.S.

224, 226-28 & n.4 (1966).

Congress was prompted to action by the Court’s

ruling in Willamette Iron Bridge Co. v. Hatch, 125 U.S.

1 (1888), which held that federal common law does not

prohibit obstructions and nuisances in navigable

waters. See United States v. Republic Steel Corp., 362

U.S. 482, 485-86 (1960). In response, Congress passed

the 1890 Rivers and Harbors Act, Ch. 907, 26 Stat.

426, which among other things prohibited “the

creation of any obstruction . . . to the navigable

capacity of any waters, in respect of which the United

States has jurisdiction,” id. § 10, 26 Stat. at 454. This

prohibition was repeated in slightly different form in

the 1899 Rivers and Harbors Act, Ch. 425, 30 Stat.

1121, as a limitation on “any obstruction . . . to the

navigable capacity of any of the waters of the United

States,” id. § 10, 30 Stat. at 1151, codified as amended,

33 U.S.C. § 403. The 1899 Act was, however, “no more

than an attempt to consolidate . . . prior [Rivers and

Harbors] Acts into one,” reflecting Congress’s intent

merely “to codify without substantive change the

earlier Acts,” including the 1890 Act. Standard Oil,

384 U.S. at 227-28. Thus, by replacing the 1890 Act’s

“waters, in respect of which the United States has

jurisdiction,” with the 1899 Act’s “the waters of the

United States,” Congress was treating the two

phrases as equivalent, thereby indicating that “the

waters of the United States” is a shorthand for

Congress’s channels of commerce jurisdiction.

This conclusion is supported by related language

from the 1899 Act’s Section 10. Among other things,

that provision requires a permit from the Corps to

construct “any wharf, pier, dolphin, boom, weir,

breakwater, bulkhead, jetty, or other structures in

any port, roadstead, haven, harbor, canal, navigable

river, or other water of the United States.” 33 U.S.C.

§ 403. Each of the specified aquatic features is

necessarily navigable, except “river”; the addition of

the qualifier “navigable” thus suggests a legislative

purpose to regulate according to navigability. Given

that Congress did not repeat the navigability qualifier

for the catch-all phrase “other water of the United

States,” it is therefore reasonable to conclude that the

phrase denotes waters that are navigable. See Ablard

& O’Neill, Wetland Protection and Section 404 of the

Federal Water Pollution Control Act Amendments of

1972: A Corps of Engineers Renaissance, 1 Vt. L. Rev.

51, 57-58, 66 n.77 (1976) (“Section 10 of the 1899

Rivers and Harbors Act uses the term ‘waters of the

United States’ apparently interchangeably with

‘navigable waters of the United States.’”). This

reading is confirmed by the ejusdem generis canon,

according to which “other water of the United States,”

as a catch-all phrase, should be read consistent with

the qualities of the preceding items, including their

navigability. See Epic Sys. Corp. v. Lewis, 138 S. Ct.

1612, 1625 (2018).

Other provisions of the 1899 Act also support the

conclusion that the phrase “the waters of the United

States” denotes navigable waters. For example,

Section 9 makes it unlawful, without Congressional

approval, “to construct or commence the construction

of any bridge, dam, dike, or causeway over or in any

port, roadstead, haven, harbor, canal, navigable river,

or other navigable water of the United States.” § 9, 30

Stat. at 1151, codified as amended, 33 U.S.C. § 401. In

contrast, Section 10, as discussed in the preceding

paragraph, requires a Corps permit for wharfs, piers,

and like structures “in any port, roadstead, haven,

harbor, canal, navigable river, or other water of the

United States.” 33 U.S.C. § 403. Despite this separate

treatment, the structures in Section 10 can impede

navigation just as the structures in Section 9. Thus,

given this substantial overlap, and given the absence

of any good reason why Congress would want the

geographic scope of these two provisions to vary, the

two catch-all phrases are best understood as

equivalent. See United States v. Stoeco Homes, Inc.,

498 F.2d 597, 608-09 (3d Cir. 1974) (in protecting the

“waters of the United States,” Congress in the 1899

Act meant traditional navigable waters).

2. Statutes and judicial precedent prior to

the Clean Water Act concerning the

aquatic channels of interstate commerce

and activities affecting those waters

The foregoing statutory history supports the

conclusion that the phrase “the waters of the United

States” is a legislative shorthand for all waters subject

to Congress’s power to regulate the aquatic channels

of interstate commerce. This understanding of the

phrase undergirds the Court’s conclusion in SWANCC

that “what Congress had in mind as its authority for

enacting the [Clean Water Act was] its traditional

jurisdiction over waters that were” navigable in fact,13

“or had been navigable in fact,”14 “or which could

13 The Daniel Ball, 77 U.S. at 563 (interpreting a statute, 5 Stat.

304 (1838), regulating steam vessel transportation on the

“navigable waters of the United States”).

14 Economy Light & Power Co. v. United States, 256 U.S. 113, 123

(1921) (interpreting section 9 of the 1899 Rivers and Harbors

Act).

reasonably be so made.”15 531 U.S. at 172. The Court

in SWANCC did not, however, explain the precise

scope of Congress’s exercise of the channels of

commerce power as embodied in the Clean Water Act.

Besides the just cited pre-1972 precedents from this

Court, such an explanation is informed by an analysis

of the main federal water quality laws that came

before the Clean Water Act. See generally Holmes v.

Secs. Investor Protection Corp., 503 U.S. 258, 267-68

(1992) (relying upon predecessor enactments to

elucidate the meaning of later statutory text).

As discussed in the preceding section, the 1890

and 1899 Rivers and Harbors Acts were channels-ofcommerce enactments directed toward traditional

navigable waters. But to adequately protect such

waters from navigational and other harms,16

Congress chose in those Acts to regulate at least some

upstream activities. For example, in United States v.

Rio Grande Dam & Irrigation Co., 174 U.S. 690

(1899), the Court upheld federal regulation of water

diversions in a non-navigable segment of the

otherwise navigable Rio Grande, reasoning that the

1890 Act’s prohibition of “any obstruction . . . to the

navigable capacity of any of the waters of the United

States” (which prohibition was preserved in the 1899

15 United States v. Appalachian Elec. Power Co., 311 U.S. 377,

407-09 (1940) (interpreting, inter alia, section 9 of the 1899

Rivers and Harbors Act).

Prior to the Clean Water Act, decisions from this Court and

lower courts had upheld application of the 1899 Rivers and

Harbors Act to regulate pollution and other non-navigational

harms to traditional navigable waters. See, e.g., Standard Oil

Co., 384 U.S. at 226; Zabel v. Tabb, 430 F.2d 199, 207 (5th Cir.

1970); United States v. U.S. Steel Corp., 328 F. Supp. 354, 35657 (N.D. Ind. 1970).

Act) is not geographically limited. Id. at 707-08.

Following this principle, Section 13 of the 1899 Act

(often referred to as the Refuse Act) not only prohibits

the placement of “any refuse matter” directly into any

“navigable water of the United States” or on its banks,

but also into any “tributary of any navigable water”

thereof, or along its banks, if liable to be washed

downstream to the navigable water. See 33 U.S.C.

§ 407.

Similarly, in the Federal Water Pollution Control

Act, Pub. L. No. 80-845, 62 Stat. 1155 (1948), Congress

authorized the abatement of certain pollution

nuisances in “interstate waters” caused not just by

discharges directly into those waters, but also by

discharges into “a tributary of such waters.” 33 U.S.C.

§ 466a(d)(1) (1952). In 1961, Congress expanded this

abatement power to remedy pollution nuisances in

“interstate or navigable waters” caused by direct

discharges as well as discharges into “a tributary of

such waters.” See Federal Water Pollution Control Act

Amendments of 1961, § 7, Pub. L. No. 87-88, 75 Stat.

204, 207-08, codified at 33 U.S.C. § 466g(a) (Suppl. III

1962). In 1965, Congress added a further basis for

abatement—when pollutant discharges would result

in water-quality-standard violations of “interstate

waters or portions thereof,” regardless of whether the

violations were the result of direct discharges or

instead discharges that reached such waters from

their “tributaries.” See Water Quality Act of 1965,

§ 5(a), Pub. L. No. 89-234, 79 Stat. 903, 909, codified

at 33 U.S.C. § 466g(c)(5) (Suppl. I 1966). See generally

Barry, The Evolution of the Enforcement Provisions of

the Federal Water Pollution Control Act: A Study of the

Difficulty in Developing Effective Legislation, 68 Mich.

L. Rev. 1103, 1104-17 (1970).17

Thus, by the early 1970s, statutory precedent and

case law had established that Congress’s power over

the channels of interstate commerce authorizes

federal regulation of:

(i)

activities in “traditional ‘navigable waters,’”

SWANCC, 531 U.S. at 169, namely

(I) interstate navigable-in-fact waters, The

Daniel Ball, 77 U.S. at 563, (II) interstate

waters that were once navigable in fact,

Economy Light & Power Co., 256 U.S. at

123, and (III) interstate waters that could

with reasonable improvement become

navigable in fact, Appalachian Elec. Power

Co., 311 U.S. at 407-09, as well as

(ii)

activities not in the waters of (I) through

(III) but nonetheless affecting them, see,

e.g., Oklahoma ex rel. Phillips v. Guy F.

Atkinson Co., 313 U.S. 508, 525-27 (1941)

(damming a tributary of a traditional

navigable water); Sanitary Dist. of Chicago

v. United States, 266 U.S. 405, 428-29 (1925)

17 Other early Congressional attempts at water pollution

regulation were the Oil Pollution Control Act of 1924, Ch. 316,

§§ 2(c), 3, 43 Stat. 604, 604-05 (prohibiting the discharge of oil

into “coastal navigable waters of the United States,” defined as

“all portions of the sea within the territorial jurisdiction of the

United States, and all inland waters navigable in fact in which

the tide ebbs and flows”), and the Public Health Service Act of

1912, Ch. 288, § 1, 37 Stat. 309, 309 (authorizing research into

the health effects of water pollution in the “navigable streams

and lakes of the United States”).

(diverting water from a traditional

navigable water); United States v. Esso

Standard Oil Co. of Puerto Rico, 375 F.2d

621, 622-23 (3d Cir. 1967) (discharging

pollution within the confines of an

industrial facility and allowing it to spill

into a nearby traditional navigable water);

United States v. Hercules, Inc., Sunflower

Army Ammunition Plant, Lawrence, Kan.,

335 F. Supp. 102, 106 (D. Kan. 1971)

(discharging pollution that, through a series

of tributaries, flowed into a traditional

navigable water).

3. The Clean Water Act’s “the waters of the

United States”: traditional navigable

waters as well as intrastate navigable

waters that serve as links in an

interstate channel of commerce

That Congress in 1972 adopted “the waters of the

United States” as the jurisdictional reach of the Clean

Water Act—a phrase prominently employed in the

Rivers and Harbors Act, which itself had been

construed for decades as reaching only those waters

subject to Congress’s authority over the channels of

interstate commerce, see, e.g., 33 C.F.R. § 209.260(a)(d) (Suppl. 1946) (Corps regulation adopting the

standards for traditional navigable waters)—strongly

suggests that Congress largely intended to maintain

the scope of what it had already legislated. See

generally Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)

(“if a word is obviously transplanted from another

legal source, whether the common law or other

legislation, it brings the old soil with it”), quoted in

Hall v. Hall, 138 S. Ct. 1118, 1128 (2018). After all,

when Congress wishes to exercise its full commerce

power over the Nation’s waters, it uses different

language to effect that result. See, e.g., Public Utility

Holding Company Act of 1935, Pub. L. No. 74-333,

§ 202, 49 Stat. 803, 841-42, codified as amended, 16

U.S.C. § 797(e) (amending Section 4 of the Federal

Power Act to authorize the Federal Power

Commission to issue permits for the construction of

hydroelectric dams and other structures on “any of the

streams or other bodies of water over which Congress

has jurisdiction under its authority to regulate

commerce with foreign nations and among the several

States”).18

It is no doubt true that Congress was dissatisfied

with the regulatory status quo in 1972. But the source

of that dissatisfaction was not primarily the

geographic reach of existing federal water quality law.

Rather, Congressional concern lay principally with

the prior mode of regulation and enforcement. In

particular, Congress wished to move from a system

whereby pollutant discharges were in practice only

prohibited when they led to nuisances or water quality

standard violations, to a system that also regulated

18 Under prior law, the Commission had been authorized to issue

Section 4 permits only for structures in “the navigable waters of

the United States.” Federal Water Power Act, Ch. 285, § 4(d), 41

Stat. 1063, 1065 (1920). See Cooley v. FERC, 843 F.2d 1464, 1469

(D.C. Cir. 1988) (“[Section] 4(e) itself was amended in 1935 to

broaden its application; Congress removed the apparent

limitation on the Commission’s power to license projects on

‘navigable waters,’ replacing it with language granting authority

over any waters subject to Congress’ Commerce Clause

jurisdiction.”).

(and sometimes prohibited) certain discharges at their

source, regardless of any resulting nuisance or

standard exceedance. See EPA v. California ex rel.

State Water Res. Control Bd., 426 U.S. 200, 202-05

(1976). See also City of Milwaukee v. Illinois &

Michigan, 451 U.S. 304, 320 (1981) (“There is thus no

question that the problem of effluent limitations has

been

thoroughly

addressed

through

the

administrative scheme established by Congress, as

contemplated by Congress.”).

This is not to say that Congress intended no

geographic expansion beyond what had been

commonly regulated prior to the Clean Water Act’s

passage. But there is no evidence that Congress

sought a radical enlargement. See SWANCC, 531 U.S.

at 168 n.3, 172-74. That conclusion is confirmed by the

nature of the criticism leveled at the Corps and EPA

with respect to their administration of the pre-1972

body of law. The oft-repeated objection was not that

the geographic scope of the agencies’ authority was too

circumscribed, but rather that the agencies had

construed too narrowly what they could regulate

under their existing authorities and enforcement

power. See, e.g., H.R. Rep. No. 92-1323, at 5 (1972)

(“The [C]orps has thus far taken too narrow a view of

its jurisdiction and responsibilities over navigable

waterways . . . .”); Rogers, Environmental Quality

Control, 3 Nat. Res. Law. 716, 723 (1970) (noting that

“there was little enforcement activity under [the

Refuse Act] for many years”); Barry, supra, at 1119

(noting that only one abatement action had been

brought under the Federal Water Pollution Control

Act in 22 years).

These critiques principally concerned the failure

of the Corps and EPA to use existing law to regulate

navigable-in-fact waters found entirely within a state.

See Albrecht & Nicklesburg, Could SWANCC Be

Right? A New Look at the Legislative History of the

Clean Water Act, 32 Envtl. L. Rep. News & Analysis

11042, 11045-46 (2002). For example, the abovequoted 1972 House committee report criticized the

Corps for its then-recent determination that

Washington State’s Lake Chelan, “a body of water 55

miles long and almost 2 miles wide . . . and clearly

navigable,” was not regulable under the Rivers and

Harbors Act because the lake “cannot form a part of

either the interstate or international system.”19 H.R.

Rep. No. 92-1323, at 30. In contrast, in the

committee’s view, any body of water ought to be

regulated as a channel of interstate commerce so long

as the “waterway serves as a link in the chain of

commerce among the States as it flows in the various

channels of transportation (highways, railroads, air

traffic, radio and postal communications, waterways,

etc.).” Id. Such was, after all, the foundation for the

Federal Water Pollution Control Act’s pollution

abatement action on “navigable” but not “interstate”

waters. See Edelman, Federal Air and Water Control:

EPA had taken a similarly narrow view in its administration

of the Federal Water Pollution Control Act. See Bodine,

Examining the Term “Waters Of The United States” in Its

Historical Context, Ctr. for the Study of the Admin. State, Policy

Br. No. 4, at 7 (Jan. 2022), https://bit.ly/3rURu9L (noting a

December 1971 EPA General Counsel opinion that “refused to

include inland lakes within the scope of [the Federal Water

Pollution Control Act’s regulation of] ‘navigable waters’ even if

they linked to rail or automotive transportation systems,

determining that there must be a water connection between

states”).

The Application of the Commerce Power to Abate

Interstate and Intrastate Pollution, 33 Geo. Wash. L.

Rev. 1067, 1073 (1965) (pollution abatement power

extended to navigable waters whether inter- or

intrastate).

Thus, Congress wanted to regulate to the full

extent of its channels of commerce power, beyond

what prior statutes or administrative interpretation

had captured, to reach even wholly intrastate

navigable waters—yet, as the Court in SWANCC

cautioned, see 531 U.S. at 168 n.3, no further. For had

Congress really intended to regulate what EPA and

the Corps now seek to control—virtually all

tributaries (including roadside drainage ditches) of

traditional navigable waters as well as nearby

wetlands—one would expect Congress to have spoken

much more clearly that it wished to bring about such

a significant expansion of federal authority. See id. at

173 (quoting United States v. Bass, 404 U.S. 336, 349

(1971) (“[U]nless Congress conveys its purpose clearly,

it will not be deemed to have significantly changed the

federal-state balance[.]”)). But again, there is “no

persuasive evidence that the Corps mistook Congress’

intent in 1974” with the agency’s initial regulations

construing the Clean Water Act consistent with,

though not exceeding, the full extent of Congress’s

channels of commerce power. SWANCC, 531 U.S. at

168 (citing, inter alia, 33 C.F.R. § 209.260(e)(1) (1975)

(“It is the water body’s capability of use by the public

for purposes of transportation or commerce which is

the determinative factor.”)). See 33 C.F.R. § 209.260(f)

(1975) (acknowledging that wholly intrastate waters

may be regulated if they are “capable of carrying

interstate commerce” by “physically connect[ing] with

a generally acknowledged avenue of interstate

commerce”). See also Ablard & O’Neill, supra, at 6162 (the Corps’ initial regulations deliberately went

beyond what the agency had traditionally regulated

under the 1899 Rivers and Harbors Act).

SWANCC’s conclusion about Congress’s purpose

is supported not just by the Corps’ initial regulations,

but by other contemporary evidence as well. For

example, in 1973 the Congressionally chartered

National Water Commission20 issued a report to

Congress and the President on water quality. See

Nat’l Water Comm’n, Water Policies For The Future

(1973). Despite being aware of the 1972 Act and its

changes to federal water quality law,21 the

Commission nevertheless identified intrastate, nonnavigable waters as a gap in federal regulation. See

id. at 203 (recommending increased state regulatory

efforts for “nonnavigable inland waters, where many

activities such as dredging and channel alteration are

beyond the scope of Federal law”). Such an assessment

would make sense only if the Commission understood,

as it evidently did, that the Clean Water Act does not

reach such features. See id. at 201 (Corps permits for

“dredging and channel alteration” are required only

See National Water Commission Act, Pub. L. No. 90-515,

§ 3(a)-(b), 82 Stat. 868, 868-69 (1968).

See, e.g., Water Policies For The Future at 207

(“Consideration of Water Quality: The Federal Water Pollution

Control Act Amendments of 1972 require State or Federal

discharge permits, limiting the composition of the effluent which

an entity may discharge, if any.”); id. at 510 (“The Federal Water

Pollution Control Act Amendments of 1972 impose considerably

higher treatment requirements and extend Federal control to all

discharges of waste material into the Nation’s waters.”).

for waters that are “navigable in interstate or foreign

commerce” and not for “other inland waters”).

This reading of “the waters of the United

States”—limited to traditional navigable waters and

intrastate navigable waters that link with other

modes of transport to form interstate channels of

commerce—is fully consistent with Congress’s desire

to reform federal water quality law by regulating “at

the source” of pollution. Cf. S. Rep. No. 92-414, at 77

(1971), reprinted in 2 Cong. Research Serv., A

Legislative History of the Water Pollution Control Act

Amendments of 1972, at 1495 (1973). Congress

reasonably concluded that such end-of-pipe regulation

was necessary with respect to that class of pollutant

discharges that would end up in those waters subject

to its channels of commerce power. Cf. Rapanos, 547

U.S. at 743-44 (the Act reaches direct discharges as

well as indirect discharges to regulated waters);

County of Maui v. Haw. Wildlife Fund, 140 S. Ct.

1462, 1468 (2020) (the Act reaches not just direct and

indirect discharges to regulated waters but also the

functional equivalent of such discharges). But, at the

same time, Congress recognized that regulating

upstream discharges that likely would never reach

navigable waters (as is often the case with “fill”

deposits, Rapanos, 547 U.S. at 744), would do little to

ameliorate downstream water quality, but would

raise serious federalism concerns and therefore such

regulation should be avoided. Cf. SWANCC, 531 U.S.

at 171-72.

C. The Two-Step Framework’s Consistency

With the Court’s Precedents

As the Rapanos plurality noted, the Court has

twice stated that, through the Clean Water Act,

Congress intended to regulate at least some waters

besides traditional navigable waters. See Rapanos,

547 U.S. at 730-31 (citing SWANCC, 531 U.S. at 167;

Riverside Bayview, 474 U.S. at 133). That correct

statement does not, however, mean that Congress

intended to regulate all waters. Rather, as the

preceding sections have detailed, Congress in 1972

wished to regulate traditional navigable waters, as

well as intrastate navigable waters over which

interstate commerce could pass, plus the nonnavigable wetlands inseparably bound up with such

waters—but no more. And Congress’s determination

that new legislation would be required to effect that

result was not just a reasonable response to perceived

administrative underenforcement of existing laws; it

was also remarkably clairvoyant as to how the courts

would interpret at least some of those older laws. See

Hardy Salt Co. v. So. Pac. Transp. Co., 501 F.2d 1156,

1168-69 (10th Cir. 1974) (overland links do not

establish an interstate connection allowing regulation

of intrastate navigable waters under the Rivers and

Harbors Act); Minnehaha Creek Watershed Dist. v.

Hoffman, 597 F.2d 617, 623-24 (8th Cir. 1979) (same).

To be sure, the Rapanos plurality concluded that

Congress intended “the waters of the United States”

to extend beyond even intrastate navigable waters.

Rapanos, 547 U.S. at 731 n.3. To hold otherwise, it

reasoned, would deprive “of the United States” of any

independent meaning, given that The Daniel Ball had

held intrastate waters (whether navigable or not) to

be excluded from the “navigable waters of the United

States.” Id. (citing The Daniel Ball, 77 U.S. at 563).

But as the statutory and legislative history reveal, by

1972, Congress had moved well beyond the meaning

of The Daniel Ball and was using “the waters of the

United States” to denote what it then viewed as the

fullest extent of its channels of commerce power. See

supra Argument Part I.B.2-3.

Given this updated understanding of “the waters

of the United States,” the framework for assessing

wetlands jurisdiction that the Sacketts propose

faithfully assigns independent meaning to both parts

of the Clean Water Act’s geographic jurisdiction: the

term “navigable waters” indicates a desire to capture

traditional navigable waters, and the term “the

waters of the United States” indicates a desire to go

the full extent of the channels of commerce power, to

include even intrastate navigable waters forming

segments of an interstate channel of commerce. This

interpretation therefore correctly assigns to

“navigable” as well as “of the United States” some of

those modifiers’ “traditional import” and “traditional

meaning,” just as the Rapanos plurality wanted.22 See

Rapanos, 547 U.S. at 731 n.3. In contrast, as the

22 The Sacketts’ interpretation of the clause “of the United

States” also explains why “territorial seas” are called out for

inclusion among “the waters of the United States” as part of the

definition of “navigable waters,” 33 U.S.C. § 1362(7). According

to the traditional understanding of “navigable waters,” the

territorial seas would not necessarily be included to their full

extent (up to, for example, their marshy edges) because

jurisdiction-by-navigability in this country is not a function of the

ebb and flow of the tide. See The Daniel Ball, 77 U.S. at 563.

following section demonstrates, the significant nexus

test does not.

II.

The Significant Nexus

Test Should Be Abandoned

Below, the Ninth Circuit upheld EPA’s

jurisdiction over the Sacketts’ lot using the significant

nexus test. Cert. App. A-34 to A-36. According to that

test, wetlands qualify as among “the waters of the

United States” if they, “either alone or in combination

with similarly situated lands in the region,

significantly affect the chemical, physical, and

biological integrity of other covered waters more

readily understood as ‘navigable.’” Rapanos, 547 U.S.

at 780 (Kennedy, J., concurring in the judgment). For

many reasons, the significant nexus test should be

rejected.

First and foremost, it is divorced from the

statutory text, which mentions no “nexus,” significant

or otherwise. See 33 U.S.C. §§ 1251-1388. See also

Rapanos, 547 U.S. at 756 (plurality opinion) (“It would

have been an easy matter for Congress to give the

Corps jurisdiction over all wetlands (or, for that

matter, all dry lands) that ‘significantly affect the

chemical, physical, and biological integrity of ’ waters

of the United States. It did not do that . . . .”). In

contrast, the two-step framework that the Sacketts

advance closely hews to the statutory text (step one

derives from “the waters,” step two from “of the United

States”) and interprets that text according to its

ordinary and established meaning.

Second, the significant nexus test is illogical, as it

makes “whatever affects waters” to be “waters,”

Rapanos, 547 U.S. at 756-57, thereby inevitably

erasing the distinction between water and land. For

example, making surfaces impermeable significantly

affects flood control, water filtering, and runoff

storage, see EPA, Urbanization – Stormwater

Runoff,23 considerations that would support federal

jurisdiction under the significant nexus test. Rapanos,

547 U.S. at 775. But no one would describe upland dirt

as a “water” simply because paving it would reduce its

ability to absorb precipitation and to slow runoff. The

Sacketts’ two-step framework avoids this bizarre

collapsing of land and waters by acknowledging that

a non-water such as a wetland can be treated as a

“water” if, but only if, the boundary between the water

and the wetland is indiscernible. See id.

Third, the significant nexus test improperly

makes one statutory purpose—improving water

quality—paramount, while ignoring other important

Congressional aims, such as preserving traditional

state authority over the use and development of land

and aquatic resources. Rapanos, 547 U.S. at 755-56

(citing 33 U.S.C. § 1251(b)). Cf. County of Maui, 140 S.

Ct. at 1471 (“We must doubt that Congress intended

to give EPA the authority to . . . interfere as seriously

with States’ traditional regulatory authority—

authority the Act preserves and promotes—as the

Ninth Circuit’s [indirect discharge] test would.”). In

contrast, the two-step framework recognizes the

importance of water quality while also preserving

state authority, especially by recognizing that

23 Available at https://bit.ly/3CS1eWi (last visited Apr. 5, 2022).

Congress did not intend to regulate beyond its

channels of commerce power.

Fourth, the significant nexus test is “a perfectly

opaque” standard, “not likely to constrain an agency

whose disregard for the statutory language has been

so long manifested.” Rapanos, 547 U.S. at 756 n.15.

See Liebesman, et al., Rapanos v. United States:

Searching for a Significant Nexus Using Proximate

Causation and Foreseeability Principles, 40 Envtl. L.

Rep. News & Analysis 11242, 11253 (2010) (“The

significant nexus concept is fraught with unknowns.”);

Bickett, The Illusion of Substance: Why Rapanos v.

United States and Its Resulting Regulatory Guidance

Do Not Significantly Limit Federal Regulation of

Wetlands, 86 N.C. L. Rev. 1032, 1041, 1043 (2008)

(“[T]he only fundamental change . . . after Rapanos is

that the [agencies] must accommodate the need for

case-by-case proof of a significant nexus, and the

practical consequences of Rapanos are minimal.”). In

contrast, the two-step framework is clear, easy to

apply, and, as noted above, faithful to the limits that

the Act places on EPA’s jurisdiction.

Fifth, by hardly limiting the federal government’s

power to regulate any and all waters and wetlands,

the significant nexus test raises the same Tenth

Amendment concerns that led the Court in SWANCC

to reject the Migratory Bird Rule. See SWANCC, 531

U.S. at 172-74. In contrast, the two-step framework

raises no Commerce Clause issues because it closely

tracks Congress’s channels of commerce power, which

is narrower and more readily defensible than

Congress’s “substantially affects” power. Cf. id. at

173.

Finally, the opacity of the significant nexus test

raises, as Justice Kennedy himself belatedly

recognized, vagueness and due process concerns

which are amplified by the “crushing” civil and

criminal penalties that the Act imposes. Hawkes Co.,

578 U.S. at 602-03 (Kennedy, J., concurring). See

Larkin, The Clean Water Act and the Void-forVagueness Doctrine, 20 Geo. J.L. & Pub. Pol’y

(forthcoming

2022)

(manuscript

16-22),

https://bit.ly/3Dbi3M0 (the significant nexus test,

coupled with the Clean Water Act’s criminal

penalties, renders the statute unconstitutionally

vague). In contrast, the two-step framework raises no

such troubles because it relies upon ordinary meaning

and requires only normal visual observation to apply.

No principle of stare decisis precludes the Court’s

jettisoning of the significant nexus test. Because

Rapanos was a split decision, any broadly

precedential holding from it depends on Marks. See

Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring).

But in order for Marks’ narrowest-grounds framework

to be workable, one opinion of the split decision must

be a “logical subset” of another; yet neither Justice

Kennedy’s concurrence nor Justice Scalia’s plurality

readily fits that description.24 United States v.

Johnson, 467 F.3d 56, 63-64 (1st Cir. 2006). See Cert

Pet. 17-20. Cf. Nichols v. United States, 511 U.S. 738,

746 (1994) (significant confusion in trying to apply

Marks to a split decision “is itself a reason for

reexamining that decision”). In such circumstances,

“the only binding aspect of [a split decision] is its

24 To the extent that Marks must be applied, it counsels adoption

of the Rapanos plurality. See Apps.’ Opening Br. at 20-33, Doc.

14, Case No. 19-35469 (Dec. 11, 2019).

specific result.” Ass’n of Bituminous Contractors, Inc.

v. Apfel, 156 F.3d 1246, 1254-55 (D.C. Cir. 1998).

Accordingly, the precedential holding of Rapanos is

simply that Clean Water Act jurisdiction cannot be

based solely on the presence of a hydrological

connection or geographic closeness, see Rapanos, 547

U.S. at 784-86 (Kennedy, J., concurring in the

judgment); id. at 757 (plurality opinion)—a

prohibition perfectly consistent with the Sacketts’

proposed two-step framework. And even if Justice

Kennedy’s lone opinion were to some degree

precedential under Marks, the many legal and

practical defects of the significant nexus test, noted

above, would strongly counsel against affording that

opinion any stare decisis weight. See generally Knick

v. Township of Scott, 139 S. Ct. 2162, 2178 (2019)

(poorly reasoned decisions establishing unworkable

rules have little stare decisis effect).

III.

The Sacketts’ Lot Contains None of “the waters

of the United States,” and thus the Sacketts Are

Entitled to a Declaration That EPA Lacks

Authority Over Their Homebuilding Project

Application of the two-step framework to the

record supporting EPA’s jurisdictional determination

and compliance order shows that the agency lacks

authority over the Sacketts’ property.

First, the record is clear that the Sacketts’ lot

contains no hydrogeographic features ordinarily

referred to as “waters,” such as streams, rivers, lakes,

or the like. EPA asserts that the property contains

wetlands. But, for the agency to have authority over

wetlands, they must be inseparably bound up with a

“water” by virtue of a continuous surface-water

connection. Yet the Sacketts’ lot lacks a surface-water

connection to any plausible “water,” and thus any

wetlands thereon necessarily lack the physical nexus

needed for them to be considered “waters.” See JA 2829.

Second, assuming arguendo that any wetlands on

the Sacketts’ lot were inseparably bound up with the

ditch on the other side of Kalispell Bay Road—which

is the “tributary” upon which EPA bases its

authority,25 Cert. App. C-3—EPA would still lack

jurisdiction. That is because the “tributary” ditch is

not a “water” but rather a “constructed channel,” JA

30, i.e., a type of non-water. Although the Rapanos

plurality anticipated that some ditches may qualify as

“waters,” see Rapanos, 547 U.S. at 757, it was careful

to note that such manmade structures are regulable

only to the extent that they are reasonably classifiable

as geographic features more readily recognizable as

“waters,” see id. at 736 n.7. For example, “an open

channel through which water permanently flows is

ordinarily described as a ‘stream,’ not as a ‘channel,’

because of the continuous presence of water.” Id. Yet,

in describing the roadside ditch here, EPA used

The district court affirmed EPA’s jurisdiction on the

alternative ground that the Sacketts’ lot is directly adjacent to

Priest Lake. Cert. App. B-21 to B-25. On appeal, EPA did not

defend on that basis, see Ans. Br. for Defs./Appellees at 35-37, 43,

Doc. 28 (June 22, 2020), and the Ninth Circuit did not address

the point, see App. A-32 to A-36. In any event, EPA’s renewed

reliance thereon would be unavailing under the two-step

framework, because there is no line-drawing problem between

Priest Lake and any wetlands on the Sacketts’ property. See JA

19, 29, 50.

“ditch,” “stream,” and “channel” interchangeably, JA

20, 30, 49, suggesting that the ditch is not a

geographic feature fairly described as a “water.”26 The

ditch does have a continuous (though small) yearround flow.27 See JA 30. But the Rapanos plurality

also recognized that, even with continuous flow,

certain types of “elaborate, man-made, enclosed

systems” should not be put “on a par” with an

authentic “water” like a stream or river. See Rapanos,

547 U.S. at 736 n.7. The importance of this distinction

is underscored by how the Act treats the two sets of

features differently, expressly defining a “ditch” and

many other manmade conveyances as “point sources,”

not waters. 33 U.S.C. § 1362(14). Thus, because the

manmade drainage ditch alongside Kalispell Bay

Road cannot fairly be characterized as a geographic

feature readily classifiable as a “water,” it cannot

Justice Kennedy’s Rapanos concurrence provides an apt

counter-example. Although “it has been encased in concrete and

steel over a length of some 50 miles,” “ordinarily carries only a

trickle of water,” and “often looks more like a dry roadway than

a river,” Rapanos, 547 U.S. at 769 (Kennedy, J., concurring in the

judgment), in common usage it is still called the Los Angeles

River, not the Los Angeles Big Storm Drain.

EPA estimated the ditch’s mean annual flow to be 1.81 cubic

feet per second. JA 30. To put that in perspective, for many years

the Corps, through the Act’s nationwide permit process (a

streamlined general permitting system for those discharges

having only minimal adverse environmental impacts, see 33

U.S.C. § 1344(e)), exempted various discharges of dredged or fill

material into “headwaters.” See 61 Fed. Reg. 65,874, 65,890-91,

65,916-17 (Dec. 13, 1996). These were defined as having flow

“less than five cubic feet per second,” 33 C.F.R. § 330.2(d) (1996),

such as the ditch here at issue.

support EPA’s jurisdiction over any wetlands that

may exist on the Sacketts’ lot.

Third, even if the ditch were a “water” with which

any wetlands on the Sacketts’ lot were inseparably

bound up, EPA would still lack jurisdiction over such

wetlands because the ditch is not a traditional

navigable water or an intrastate navigable water, and

thus is not “of the United States.” Cf. Cert. App. C-3.

Indeed, the nearest such water is Priest Lake, see JA

34, which is separated from the Sacketts’ lot by a

waterless 300-foot band of gravel road and lakefront

homes, see JA 19, 29, 50. Thus, EPA has no basis to

regulate the Sacketts’ property.

Conclusion

For decades, lower courts and regulators have

struggled to formulate a clear and defensible test for

when a wetland qualifies as among “the waters of the

United States” subject to the Clean Water Act. By

adopting the Sacketts’ proposed two-step framework,

the Court can put a definitive end to this struggle

while faithfully executing Congressional intent to

protect the Nation’s water quality and, at the same

time, respecting the states’ traditional role in

regulating land and water. In so doing, the Court can

also provide meaningful relief to property owners like

the Sacketts who have suffered from “the immense

expansion of federal regulation of land use that has

occurred under the Clean Water Act—without any

change in the governing statute—during the past five

[now eight] Presidential administrations.” Rapanos,

547 U.S. at 722.

The judgment of the Ninth Circuit should be

reversed.

DATED: April 2022.

ANTHONY L. FRANÇOIS

DAMIEN M. SCHIFF*

Briscoe, Ivester &

*Counsel of Record

Bazel LLP

CHARLES T. YATES

235 Montgomery Street,

Pacific Legal Foundation

Suite 935

555 Capitol Mall, Suite 1290

San Francisco, CA 94104

Sacramento, CA 95814

Telephone: (415) 402-2707 Telephone: (916) 419-7111

tfrancois@briscoelaw.net

DSchiff@pacificlegal.org

CYates@pacificlegal.org

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 610

Arlington, VA 22201

PGilliard@pacificlegal.org

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.