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

No. 21-454

In The

Supreme Court of the United States

MICHAEL SACKETT, ET UX.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.

Respondents.

On Writ of Certiorari to

The United States Court of Appeals

For the Ninth Circuit

BRIEF OF AMICUS CURIAE NATIONAL

CATTLEMEN’S BEEF ASSOCIATION AND

AFFILIATED ORGANIZATIONS

IN SUPPORT OF PETITIONERS

SCOTT YAGER*

MARY-THOMAS HART

NATIONAL CATTLEMEN’S

BEEF ASSOCIATION

1275 PENNSYLVANIA AVE.,

N.W., SUITE 801

WASHINGTON, D.C. 20004

(202) 347-0228

syager@beef.org

* Counsel of Record

i

QUESTION PRESENTED

Whether 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).

ii

TABLE OF CONTENTS

Page(s)

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 4

ARGUMENT ............................................................ 6

I. COMBINING THE RELATIVE PERMANENCE

AND SIGNIFICANT NEXUS STANDARDS IS

THE MOST APPROPRIATE TEST OF CLEAN

WATER ACT AUTHORITY ............................... 7

A. Shortcomings of the Significant Nexus

Standard ........................................................ 7

1. As written by Kennedy: case-by-case

determinations run unconstitutionally

wild ........................................................... 8

2. As interpreted in the 2015 rule .............. 11

a. Trading Vagueness for Overreach ... 11

b. Physical indicators, alone, are

insufficient ........................................ 12

B. Shortcomings of the relative permanence

standard ....................................................... 14

1. Regulation of the “merest trickle” ......... 14

2. As interpreted in the Navigable Waters

Protection Rule, relative permanence

constituted flow in a “typical year” ....... 16

iii

C. Combine significant nexus and relative

permanence to achieve a two-part test that

constitutionally regulates the nation’s

waters .......................................................... 17

1. Step 1: Are visual indicators present? .. 18

2. Step 2: If visual indicators are present,

does the feature have relatively

permanent flow with a continuous

surface connection to navigable-in-fact

water? ..................................................... 19

3. Combining the tests provides muchneeded clarity for landowners ............... 20

4. Adopting the “Rapanos two-step”

remedies the failings of the significant

nexus and relative permanence tests .... 21

II. SHOULD THE COURT DECLINE TO

REQUIRE SATISFACTION OF BOTH THE

SIGNIFICANT NEXUS AND RELATIVE

PERMANENCE TESTS, IT SHOULD FIND

THE RELATIVE PERMANANCE TEST AS

THE SOLE JURISDICTIONAL TEST ............ 24

A. Varying tests among the federal circuits

create uncertainty within the regulated

community ................................................... 24

B. Of the existing tests, the plurality’s test

most closely follows congressional intent

and Supreme Court precedent .................... 26

CONCLUSION ....................................................... 30

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Duarte Nursery, Inc. v. United States Army Corps

of Eng’rs, 2019 U.S. Dist. LEXIS 75309

(E.D. Cal. May 2, 2019) ........................................ 8

Elonis v. United States,

575 U.S. 723 (2015)............................................... 9

Georgia v. Wheeler,

418 F. Supp. 3d 1336 (S.D. Ga. 2019) .......... 11, 12

Grayned v. City of Rockford,

408 U.S. 104 (1972)............................................... 9

Hawkes v. United States,

578 U.S. 590 (2016)................................... 8, 19, 22

Marks v. United States,

430 U.S. 188 (1977)............................................. 24

Pasqua Yaqui Tribe v. United States EPA,

2021 U.S. Dist. LEXIS 163921

(D. Ariz. Aug. 30, 2021) ...................................... 28

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

633 F.3d 278 (4th Cir. 2011)............................... 26

Rapanos v. United States,

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

v

Solid Waste Agency v. United States Army Corps

of Eng’rs, 531 U.S. 159 (2001) .................... passim

Staples v. United States,

511 U.S. 600 (1994)............................................. 10

United States v. Bailey,

571 F.3d 791 (8th Cir. 2009)......................... 11, 25

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009)............................... 26

United States v. Donovan,

661 F.3d 174 (3d Cir. 2011) .......................... 21, 25

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006) (per curiam) ......... 25

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) ..................... 24, 25, 26

United States v. Lapant,

2019 U.S. Dist. LEXIS 75309

(E.D. Cal. May 2, 2019) ........................................ 8

United States v. Lucas,

516 F.3d 316 (5th Cir. 2008)............................... 26

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985)....................................... 21, 30

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007)........................... 25

vi

Constitution and Statutes

U.S. Const. amend. V ............................................... 9

U.S. Const. amend. XIV, § 2 .................................... 9

33 U.S.C. §§ 1251-1387 (2022) ................................. 8

33 U.S.C. § 1321 ....................................................... 9

62 Stat. 1155 .......................................................... 12

91 Stat. 1566 .......................................................... 12

Regulations

33 CFR § 328.3 (2020) ............................................ 18

Clean Water Rule: Definition of “Waters of the

United States”, 80 Fed. Reg. 37053 (June 29,

2015) ............................................................. passim

80 Fed. Reg. 37126 (June 29, 2015)....................... 11

Navigable Waters Protection Rule: Definition of

“Waters of the United States”, 85 Fed. Reg.

22250 (April 21, 2020) ............................ 17, 22, 23

85 Fed. Reg. 22341 (2020)...................................... 16

Proposed Rule, Revised Definition of “Waters

of the United States”, 86 Fed Reg. 69372 et seq. 6

vii

Other Authorities

https://www.nrcs.usda.gov/Internet/FSE_

DOCUMENTS/nrcs142p2_024290.pdf............... 18

The Nat’l Agric. Law Ctr., Waters of the United

States: Timeline of Definitions (April 21, 2020)... 4

USDA-ERS, Total grazing land, by region, State,

and United States (Aug. 28, 2017) ....................... 6

U.S. Envtl. Prot. Agency, Connectivity of Streams

and Wetlands to Downstream Waters: A Review

and Synthesis of the Scientific Evidence (Jan.

2015) .................................................................... 19

1

INTEREST OF AMICUS CURIAE 1

The National Cattlemen’s Beef Association (NCBA),

based in Centennial, Colorado, is the largest and

oldest national trade association representing

American cattle producers. Through direct

membership and state affiliate membership, NCBA

represents more than 250,000 of America’s farmers

and ranchers, who provide a significant portion of

the nation’s supply of food.

Affiliated organizations supporting this brief include

the American National CattleWomen, Inc.,

American Quarter Horse Association, Beef Alliance,

Public Lands Council, Alabama Cattlemen’s

Association, Arkansas Cattlemen’s Association,

Arizona Cattle Feeders’ Association, Arizona Cattle

Growers’ Association, California Cattlemen’s

Association, Colorado Cattlemen’s Association,

Colorado Livestock Association, Florida Cattlemen’s

Association, Georgia Cattlemen’s Association,

Hawaii Cattlemen’s Council, Idaho Cattle

Association, Illinois Beef Association, Indiana Beef

Cattle Association, Iowa Cattlemen’s Association,

Kansas

Livestock

Association,

Kentucky

Cattlemen’s Association, Louisiana Cattlemen’s

Association, Maryland Cattlemen’s Association,

Michigan Cattlemen’s Association, Minnesota State

1

All parties consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than amici curiae, its members, or its counsel made a

monetary contribution to its preparation or submission.

2

Cattlemen’s Association, Mississippi Cattlemen’s

Association, Missouri Cattlemen’s Association,

Montana Stockgrowers Association, Nebraska

Cattlemen, Nevada Cattlemen’s Association, New

York Beef Producers Association, North Carolina

Cattlemen’s Association, North Dakota Stockmen’s

Association,

Ohio

Cattlemen’s

Association,

Oklahoma

Cattlemen’s

Association,

Oregon

Cattlemen’s Association, Pennsylvania Cattlemen’s

Association,

South

Carolina

Cattlemen’s

Association, South Dakota Cattlemen’s Association,

Tennessee Cattlemen’s Association, Texas and

Southwestern Cattle Raisers Association, Texas

Cattle Feeders Association, Utah Cattlemen’s

Association, Virginia Cattlemen’s Association,

Washington Cattlemen’s Association, Washington

Cattle Feeders Association, Wisconsin Cattlemen’s

Association, and the Wyoming Stock Growers

Association.

NCBA works to advance the economic, political, and

social interests of the U.S. cattle business and to be

an advocate for the cattle industry’s policy positions

and economic interests. NCBA is a vigilant advocate

in the nation’s courts. It frequently participates as a

party litigant and amicus curiae to safeguard the

constitutional and statutory rights, and business

interests of cattle producers across the country.

NCBA is deeply interested in the scope of federal

jurisdiction under the Clean Water Act (CWA or Act)

and has participated in litigation or rulemaking

addressing this issue over many years.

3

Cattle operations require the construction and

maintenance of stock and farm ponds, access roads,

drainage ditches, weed and insect pest control,

subsurface drainage systems, irrigation systems, or

the use of retention ponds, basins, pits, or

impoundments, which may result in material

reaching surface waters. Should the Court uphold

the Ninth Circuit’s erroneous interpretation of the

Act, NCBA’s members would face a significantly

increased risk of agency enforcement and citizen

suits. Many cattle operations could be newly subject

to the CWA’s permitting requirements. In addition,

the Act includes longstanding exclusions for

agricultural activities that would be compromised by

an overexpansive approach to jurisdiction and its

relation to agricultural production. NCBA believes

that their long experience operating under the Act

will assist the Court in resolving the question

presented, which is an issue of immense importance

to the nation’s cattle producers.

4

SUMMARY OF ARGUMENT

The Executive Branch has failed. Since the passage

of the CWA, cattle producers have managed their

operations through 13 iterations of “waters of the

U.S.” definitions in a mere 50 years. On average, this

means that farmers, ranchers, and other

landowners experience a change in how features on

their property are regulated once every 3.8 years –

an untenable scheme that provides no foundation for

meaningful business planning. The Nat’l Agric. Law

Ctr., Waters of the United States: Timeline of

Definitions (April 21, 2020).

We urge the Court to define the appropriate test of

federal jurisdiction under the CWA. The court is

tasked with considering whether the significant

nexus standard is the appropriate standard to

determine whether water features are subject to

federal CWA jurisdiction. In considering this

question, the Court must necessarily consider the

relative permanence test set forth by the plurality in

Rapanos. On balance, both tests contain weaknesses

that have the potential to inappropriately apply

federal jurisdiction beyond constitutional limits. But

a solution exists. By combining these tests, the

Court ensures that federal jurisdiction and

resources are appropriately scoped to water features

that significantly affect the nation’s waters, while

adhering to constitutional limitation.

The question presented to the court is not which

waters are left unprotected; it is which waters are

properly regulated by the federal government and

which by the States. The federal CWA should

5

regulate only those features that have a significant

effect on navigable-in-fact waters. While not a

simple calculus, NCBA provides a means to enact

such a test through utilization of both standards set

forth by the plurality and the concurrence in

Rapanos. Rapanos v. United States, 547 U.S. 715

(2006).

6

ARGUMENT

America’s cattle farmers and ranchers are our

country’s original environmental stewards. Nearly

800 million acres of land, or one-third of the

continental United States, are owned or managed by

cattle producers, whose livelihoods and the health of

their livestock depend on clear air, plentiful grass,

and clean water. USDA-ERS, Total grazing land, by

region, State, and United States (Aug. 28, 2017). The

success of our nation’s cattle producers provides

green space, wildlife habitat, and a bulwark to urban

and suburban sprawl. For decades, the extent of

federal jurisdiction under the CWA has been a

source of confusion and consternation for NCBA’s

members. Numerous lawsuits, court decisions, and

whipsawing

regulatory

definitions

between

Republican

and

Democratic

presidential

administrations has left cattle producers in a

perpetual state of confusion.

The CWA was enacted with the clear intent of

protecting our nation’s water resource – a mission

that becomes increasingly difficult with every

muddled decision issued by the courts. The current

administration seeks to whipsaw the navigable

waters definition once again. See Proposed Rule,

Revised Definition of “Waters of the United States”

(86 Fed Reg. 69372 et. seq.). While the Executive

Branch is an easy target, the whipsawing takes

place due, in great part, to this Court’s fractured

decision in Rapanos. Rapanos, 547 U.S. 715. The

Court has the unique opportunity, and duty, to

address the issue again, provide clear judicial

guidance, and put the matter to rest.

7

I.

COMBINING

THE

RELATIVE

PERMANENCE

AND

SIGNIFICANT

NEXUS STANDARDS IS THE MOST

APPROPRIATE TEST OF CLEAN WATER

ACT AUTHORITY.

The question presented to the Court asks which

existing test from Rapanos v. United States should

be adopted for implementation of the CWA, but both

the significant nexus and relative permanence tests

fail to effectively regulate America’s waters while

providing necessary stakeholder clarity. Id. The use

of either tests will lead to the unintended

establishment of jurisdiction over insignificant

features. However, by combining these tests, the

Court will ensure that the government maximizes

water quality protection and stakeholder clarity,

while remaining squarely within the bounds of the

CWA.

A. Shortcomings

Standard

of

the

Significant

Nexus

The significant nexus test, both in its use by the

Rapanos concurrence and its application in the 2015

Clean Water Rule (2015 Rule), fails to

constitutionally implement the CWA. Rapanos, 547

U.S. 715; Clean Water Rule: Definition of “Waters of

the United States”, 80 Fed. Reg. 37053 (June 29,

2015).

8

1. As written by Kennedy: case-by-case

determinations run unconstitutionally wild.

The significant nexus test, as outlined in the

concurrence of Rapanos, creates a dangerously

vague standard without constitutional guard rails.

547 U.S. at 759. The concurrence acknowledged this

fact: “[a]bsent more specific regulations, however,

the Corps must establish a significant nexus on a

case-by-case basis when it seeks to regulate

wetlands based on adjacency to nonnavigable

tributaries.” Id. at 782. Case-by-case determinations

are the enemy of regulatory certainty, establishing a

basis for “gotcha” enforcement actions across the

country. United States v. Lapant, 2019 U.S. Dist.

LEXIS 75309 (E.D. Cal. May 2, 2019); Duarte

Nursery, Inc. v. United States Army Corps of Eng’rs,

2019 U.S. Dist. LEXIS 75309 (E.D. Cal. May 2,

2019).

The inability for landowners to know

whether a feature on their property is federally

jurisdictional puts them at unavoidable risk of

violating the CWA.

The definition of “waters of the United States” is a

necessary element in finding violations of the CWA,

but the limits of this jurisdictional standard are

unknown amongst those potentially subject to the

Act’s requirements. See 33 U.S.C. §§ 1251-1387

(2022). Nearly ten years after Rapanos, Justice

Kennedy recognized the vagueness and due process

concerns with the significant nexus test, and the

“crushing” penalties imposed by the Act. Hawkes v.

United States, 578 U.S. 590 (2016) (Kennedy,

concurring in the opinion). Overly vague standards

are unconstitutional when they fail to provide

9

“persons of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he

may act accordingly,” and establish “explicit

standards” to avoid “arbitrary and discriminatory

application.” Grayned v. City of Rockford, 408 U.S.

104 (1972). The impact of the significant nexus test

to landowners relies almost entirely on how it is

interpreted and applied by individual regulators.

Regulated stakeholders have little opportunity to

clearly know what is prohibited because they are

subject to the arbitrary application of an unclear

standard. Without a clear definition of “waters of the

U.S.” the CWA risks unconstitutional vagueness and

violation of the fifth and fourteenth amendments.

U.S. Const. amend. V; U.S. Const. amend. XIV, § 2.

The significant nexus standard’s failure to

adequately draw a jurisdictional line in the sand

prevents the effective implementation of the CWA.

Consider an elemental breakdown of criminal

liability under Section 1321(b)(3) of the Act: (1) any

person who (2) negligently or knowingly violates

(3) this section (4) by causing (5) a discharge (6) of oil

or hazardous substances (7) into or upon the

navigable waters of the United States, adjoining

shorelines, or into or upon the waters of the

contiguous zone (8) in harmful quantities. 33 U.S.C.

§ 1321 (b)(3). To be convicted of a crime, a defendant

must conduct an act with knowledge that they are

doing so. In Elonis, the Court held that “a defendant

generally must know the facts that make his conduct

fit the definition of the offense, even if he does not

know that those facts give rise to a crime.” Elonis v.

United States, 575 U.S. 723 (2015). When applying

this standard to the CWA, an entity must have

10

enough information at their disposal to know that

their actions constitute a discharge to waters of the

United States. The significant nexus test does little

to indicate to the average landowner whether a

feature is subject to the Act. For landowners who

manage ephemeral streambeds, isolated ponds, or

dry washes, there is no indication that these

features are federally jurisdictional, and thus no

indication that a discharge to them is a violation of

the Act.

The CWA was designed to establish strict liability

for the discharge of pollutants, but Congress

provides no indication of a desire to eliminate the

mens rea requirement for criminal violations of the

Act. The Court additionally held in Staples that

“Absent a clear statement from Congress that mens

rea is not required, a court should not apply the

public welfare offense rationale to interpret any

statute defining a felony offense as dispensing with

mens rea.” Staples v. United States, 511 U.S. 600 at

618 (1994). No language in the CWA conveys

Congressional intent to eliminate the mens rea

requirements for liability. Therefore, the statute

must be interpreted in a way that allows the

effective development of mens rea. The significant

nexus standard wholly fails to establish a baseline

upon which mens rea may be cultivated.

The constitutional implications of the significant

nexus test have tangible practical effect. The

Agencies struggle with effective implementation of

this nebulous standard – subject to litigation at

every turn. Federal courts across the nation have

split on the Agencies’ 2015 interpretation of the

11

fractured Rapanos decision. See, e.g., Sackett v. U.S.

EPA, 8 F.4th 1075, 1088–89 (9th Cir. 2021); United

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

many of these cases, landowners conducted

activities on their property with no indication that

they were violating the Act. This regulatory struggle

only compounds stakeholder uncertainty.

2. As interpreted in the 2015 rule

a. Trading Vagueness for Overreach

The Agencies’ 2015 Rule acknowledged concerns

from regulated stakeholders related to the

significant nexus standard’s lack of clarity. See 80

Fed. Reg. 37053.

These concerns were answered with an equally

unconstitutional expansion of CWA authority. The

2015 Rule expanded authority to all features that

could potentially flow surface water, regardless of

whether they actually do. 2

Congress did not intend the federal regulation of

water features that do not materially contribute to

the physical, chemical, or biological health of the

nation’s waters; this notion is exemplified through

Congress’ contemplation of interstate waters. In

Georgia v. Wheeler, the 11th circuit found that

categorical regulation of all interstate waters “reads

the term navigability out of the CWA.” Georgia v.

The 2015 rule exclusively relies on the presence of

physical indicators including a bed and banks, and an ordinary

high water mark as a proxy for surface water flow. See 80 Fed.

Reg. 37126 (June 29, 2015).

2

12

Wheeler, 418 F. Supp. 3d 1336, 1358 (S.D. Ga. 2019).

Notably, Congress replaced the term “navigable or

interstate waters” with “navigable waters” in 1972.

Compare 62 Stat. 1155 with 91 Stat. 1566. Congress

saw an inherent need to include “interstate waters”

in addition to “navigable waters” when it intended

to extend federal authority to non-navigable

interstate waters. The passage of the CWA, along

with its

cooperative

federalism

structure,

empowered states to manage non-navigable features

– regardless of their interstate status.

The legislative history of the CWA indicates

Congress’ intent to expand federal jurisdiction

beyond interstate waters to all navigable waters.

However, this statutory change did not affect which

interstate waters are subject to federal regulation.

Waters that are not navigable-in-fact, their

tributaries, impoundments, or adjacent wetlands, or

waters directly contemplated by this Court are not

subject to federal regulation based solely on their

geographic proximity to a state border.

b. Physical indicators, alone, are insufficient

The 2015 Rule exclusively adopted the significant

nexus test as its foundation for establishing federal

jurisdiction. See 80 Fed. Reg. 37053. However, the

Agencies’ interpretation of the significant nexus test

differed significantly from even Justice Kennedy’s

original construction. The Agencies relied

exclusively on the physical indicators to signal

whether features carry sufficient flow to justify

federal authority. See 80 Fed. Reg. 37054, 37126.

The exclusive use of physical indicators stretches the

13

authority of the Act far beyond actual flowing water,

to streambeds and dry washes that cover most of the

western United States, many of which rarely convey

water.

Image 1. Dry wash on a cattle operation

14

The image above portrays a dry wash on a cattle

operation in the arid southwest region of the

country. This feature contains certain physical

indicators, such as a bed and banks, that would

contribute to a finding under the 2015 Rule that the

feature is categorically jurisdictional. Notably, the

feature is devoid of surface water and is dry at all

times except during and shortly after a precipitation

event.

On the most extreme end of application, the 2015

Rule asserted jurisdiction over dry features that

hardly, if ever, convey surface water to downstream

waters. Indeed, these features present little to no

risk of carrying pollutants to navigable-in-fact

waters and certainly don’t meet the muster of

federal protection.

B. Shortcomings of the relative permanence

standard

Like the significant nexus test, the relative

permanence standard fails to adequately scope CWA

authority because it considers surface water flow

exclusively, regardless of the volume, or impact, of

that flow. For that reason, a hydrological connection

alone is an insufficient basis to justify CWA

jurisdiction.

1. Regulation of the “merest trickle”

While the relative permanence standard attempts to

apply federal jurisdiction to those features that

satisfy Congressional intent, it fails in one

15

significant way. The concurrence points to this

failing:

The merest trickle, if continuous, would count

as a “water” subject to federal regulation,

while torrents thundering at irregular

intervals through otherwise dry channels

would not. Though the plurality seems to

presume that such irregular flows are too

insignificant to be of concern in a statute

focused on “waters,” that may not always be

true.

Image 2. Hydrologic feature on a cattle operation

16

The preceding image portrays a hydrologic feature

in the rocky mountain region that bisects a cattle

operation. The feature has no physical indicators but

is consistently wet. This is the “merest trickle” that

Justice Kennedy identified as a failing of the relative

permanence test.

2. As interpreted in the Navigable Waters

Protection

Rule,

relative

permanence

constituted flow in a “typical year”.

The latest definition of “navigable waters” yielded a

regulation that adhered to the plurality’s relative

permanence standard by requiring that a covered

water have surface water flowing in a “typical year”.

This inquiry analyzes the yearly frequency of

surface water flowing through a feature based on a

rolling 30-year period. 85 Fed. Reg. 22341 (2020).

Meeting this test, the EPA determined, satisfies the

plurality’s requisite “continuously flowing bodies of

water”. 547 U.S. at 739 (2006).

While successful in accounting for relative

permanence, the typical year standard fails to solve

for Kennedy’s criticism of regulating the “merest

trickle”. Id. at 769 (2006). Indeed, the hydrologic

feature bisecting the cattle operation would likely

satisfy the typical year standard and constitute a

water covered by the Act. In our view, this is a major

failing.

17

C. Combine significant nexus and relative

permanence to achieve a two-part test that

constitutionally regulates the nation’s waters.

While both Rapanos tests have flaws, they are

shortcomings that can be easily remedied. The

assertion of federal jurisdiction must be premised on

a feature containing surface water on a relatively

permanent basis that continuously flows to a

navigable-in-fact water by virtue of an unbroken

surface connection. And this feature must have the

hallmark visual indicators that demonstrate a

significant nexus to “navigable waters.” This

paradigm merges not only the Rapanos tests, but

also the Executive Branch’s attempts to codify these

tests in regulation. See generally Clean Water Rule:

Definition of “Waters of the United States”, 80 Fed.

Reg. 37053 (June 29, 2015); Navigable Waters

Protection Rule: Definition of “Waters of the United

States”, 85 Fed. Reg. 22250 (April 21, 2020).

NCBA’s proposes a two-step process. To find a

feature jurisdictional, regulators must show both

(1) the presence of visual indicators and

(2) relatively permanent flow with a continuous

surface connection to navigable-in-fact water. With

distinct consideration of both visual indicators and

surface water flow, the Agencies will establish

federal regulatory authority over waters that both

the concurrence and plurality agreed upon, and no

more. Importantly, the two-step process would find

the previously highlighted features on cattle

operations do not constitute covered waters under

the Act, correcting the failings of each test alone.

18

1. Step 1: Are visual indicators present?

Visual indicators establish a starting point for

landowners and the government to conduct their

analysis. Visual indicators are hydrogeographic

features that signify the flow or presence of a body

of water or wetland. For a flowing body of water,

visual indicators can include a bed, banks, point

bars, cutbanks, and other features visuallyindicative of a mature water body. 3 For wetlands,

the visual indicators embodied in the regulatory

definition of wetland which relies on three criterion

– hydrology, hydrophytic vegetation, and hydric

soils - is fertile ground for satisfying the first step in

this process. 33 CFR § 328.3 (2020). Requiring the

presence of visual indicators significantly curbs the

risk of unknowing violations of the Act. These

characteristics would allow cattle producers and

other landowners to visually identify the features of

a surface water or wetland, as a first step of

determining the existence of a covered water. This

requirement puts landowners and managers on

notice that actions in and around these features may

be subject to federal permitting requirements,

remedying vagueness and due process.

3 NCBA does not request the Court to determine exactly

which visual indicators are required to satisfy the first step of

the two-step process, as that will best be determined by the

expert agencies. For reference, the Rosgen system of stream

classification provides ample guidance on appropriate visual

indicators.

https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nr

cs142p2_024290.pdf.

19

2. Step 2: If visual indicators are present, does

the feature have relatively permanent flow

with a continuous surface connection to

navigable-in-fact water?

If visual indicators exist, regulators may then

determine whether the feature satisfies a surface

water flow requirement. The significance of water

contribution may be determined by analyzing the

frequency or volume of surface water contained or

flowing through that feature.

The best available science demonstrates that all

waters are hydrologically connected to some degree.

U.S. Envtl. Prot. Agency, Connectivity of Streams and

Wetlands to Downstream Waters: A Review and Synthesis

of the Scientific Evidence (Jan. 2015). The Court is not

tasked with assessing federal jurisdiction based on

mere connectedness but must determine the proper

roles of federal and state governments in regulating

waters. In Rapanos, the plurality clearly drew the

line of cooperative federalism at those waters that

have a relatively permanent flow and continuous

surface connection to navigable-in-fact water. And

the rest belongs to the states. Supreme court

precedent clearly indicates a disinterest in asserting

federal jurisdiction over isolated features and

ephemeral tributaries that have little impact on

downstream water quality. See generally Solid

Waste Agency v. United States Army Corps of Eng’rs,

531 U.S. 159 (2001); Hawkes v. United States, 578

U.S. 590 (2016).

A feature should only be jurisdictional if it satisfies

both the visual indicators and relative permanence

20

requirements. Both steps are necessary to ensure

that the federal government is regulating those

water bodies that are contributing to downstream

water quality and are more than “the merest

trickle.”

3. Combining the tests provides much-needed

clarity for landowners

The two-step process enables landowners to have a

measure of independence in determining the

presence of federally covered waters on their

property. Visual indicators put some level of control

back in the hands of farmers, ranchers, and

landowners who have too long been forced to hire

attorneys, hydrologists, and consultants to interpret

the presence of a federally covered water on their

property.

With the naked eye, a landowner can identify visual

indicators of a water feature and the presence of

surface water and then make a determination as to

whether a federally covered water exists on their

property. Therefore, the two-step process serves an

important role in not only satisfying the needs of the

Rapanos concurrence and plurality, but also the

elusive but profoundly important policy goal of

enabling landowners to take back control of their

property.

21

4. Adopting the “Rapanos two-step” remedies

the failings of the significant nexus and

relative permanence tests.

The justices, in their Rapanos opinions, made clear

their concerns related to the opposing tests. 547 U.S.

715. Justice Kennedy presented legitimate

shortcomings related to the relative permanence

standard.

Most

notably,

Justice

Kennedy

highlighted that the relative permanence test has

the potential to regulate “the merest trickle” if that

trickle is reliable. Id. at 769. Likewise, Justice Scalia

had concerns about the significant nexus test related

to its expansive potential. His opinion highlights the

importance of narrowly defining significance in a

way that does not reach beyond limits created by

Riverside Bayview and SWANCC. United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121 (1985);

Solid Waste Agency v. United States Army Corps of

Eng’rs, 531 U.S. 159 (2001). Following the Rapanos

decision, federal circuits noted similar concerns:

[I]f there is a small surface water connection

between a wetland and a remote navigable

water, the plurality would find jurisdiction,

while

Justice

Kennedy

might

not.

Furthermore, a wetland that lacks a surface

connection

with

other

waters,

but

significantly affects the chemical, physical,

and biological integrity of a nearby river

would meet Justice Kennedy’s test but not the

plurality’s.

United States v. Donovan, 661 F.3d 174 (3d Cir.

2011). Most notable, however, may be Justice

22

Kennedy’s more recent reflection on the significant

nexus test as applied by the agencies. A decade after

constructing the significant nexus test, Justice

Kennedy cast doubt on the constitutionality of the

federal government’s implementation of his test in

the aftermath of Rapanos, stating the “reach and

systemic consequences of the Clean Water Act

remain a cause of concern” and “the Act…continues

to raise troubling questions regarding the

Government’s power to cast doubt on the full use and

enjoyment of private property throughout the

Nation.” Hawkes v. United States, 578 U.S. 590

(2016) (Kennedy, concurring in the opinion). Justice

Kennedy remained concerned that even with the

ability for regulated stakeholders to obtain judicial

review of certain government actions taken under

the Act that “the Act’s ominous reach would again be

unchecked”. Id.

At its foundation, a test that establishes

jurisdictional boundaries for the federal government

concerning water regulatory jurisdiction should

consider how much surface water actually flows. The

2015 Rule fails to take this important factor into

account, requiring the existence of flow, but positing

that flow could be demonstrated through the

presence of physical indicators. Rather than keeping

the two elements distinct, the Agencies instead

propped one element on another, the result of which

was only one element needing to be satisfied – the

presence of physical indicators. Though different on

its face, the Navigable Waters Protection Rule (2020

Rule) puts regulated stakeholders in a similar

predicament. See Navigable Waters Protection Rule:

Definition of “Waters of the United States”, 85 Fed.

23

Reg. 22250 (April 21, 2020). Distinct consideration

of both flow and physical indicators is necessary to

determine the presence of a jurisdictional tributary.

Fortunately, the problem has an intuitive solution.

This case is a line drawing exercise – the Court is

not asked to determine where environmental

protection ends, rather, it is asked where federal

authority ends and state authority begins. The Act

grants the federal government authority over point

source discharges to “navigable waters,” and the

government is tasked with determining whether a

discharge actually occurs – this does not change with

the definition of “waters of the U.S.” Appropriately

scoping federal authority does not limit the effect of

the CWA, but properly focuses federal resources on

the features that matter most to our nation’s water

quality.

Tributaries and ditches are conveyances that may be

considered “point sources” under the Act. Discharges

to these features, and from these features, can be

regulated if they are significant enough to be

measured and traced to federally jurisdictional

waters. By appropriately scoping the definition of

“waters of the U.S.” the Court can ensure that only

those discharges that impact the chemical,

biological, and physical health of the nation’s waters

are regulated, rather than dedicating resources to

regulate discharges that would dilute beyond

measurable impact through downstream flow.

24

II.

SHOULD THE COURT DECLINE TO

REQUIRE SATISFACTION OF BOTH THE

SIGNIFICANT NEXUS AND RELATIVE

PERMANENCE TESTS, IT SHOULD FIND

THE RELATIVE PERMANANCE TEST AS

THE SOLE JURISDICTIONAL TEST.

A. Varying tests among the federal circuits create

uncertainty within the regulated community.

In the sixteen years since the Supreme Court’s

decision, federal courts have contemplated the

correct interpretation of Rapanos with little

uniformity. Rapanos, 547 U.S. 715. This division is

the result of varying applications of the Marks test:

“[w]hen a fragmented Court decides a case and no

single rationale explaining the result enjoys the

assent of five Justices, the holding of the Court may

be viewed as that position taken by those Members

who concurred in the judgments on the narrowest

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

193 (1977) (internal quotation marks and citation

omitted). While the Marks test may be easy to apply

in some cases, the “narrowest grounds” standard

cannot be easily applied to Rapanos. Rapanos, 547

U.S. 715.

The features that Justice Kennedy would find

jurisdictional are not a subset of the features in

which the broader plurality would find jurisdiction.

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

2006). For example, in cases where there is a small

surface water connection, the plurality’s test would

be satisfied even where a significant nexus may not

25

exist.

As noted previously, Justice Kennedy

highlighted that under the plurality’s test for

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

continuous,” could be subject to federal jurisdiction,

even though it may not be significant for

downstream water quality. 547 U.S. at 769. As a

result, courts have disagreed as to which Rapanos

test controls. Rapanos, 547 U.S. 715.

Some federal courts hold that the significant nexus

test applies. See, e.g., Sackett v. U.S. EPA, 8 F.4th

1075, 1088–89 (9th Cir. 2021); United States v.

Robison, 505 F.3d 1208, 1221–22 (11th Cir. 2007);

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

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

the Seventh Circuit explained that Justice

Kennedy’s understanding is narrower than the

Rapanos plurality’s understanding “in most cases,

though not in all.” Gerke Excavating, Inc., 464 F.3d

at 724–25. Thus, the court concluded that “as a

practical matter the Kennedy concurrence is the

least common denominator.” Ibid.

Following Justice Stevens’s dissent in Rapanos,

other circuits allow the government to meet either

the plurality or concurrence test to establish

jurisdiction. Rapanos, 547 U.S. at 810 n.14 (Stevens,

J., dissenting) (observing that “Justice Kennedy’s

approach will be controlling in most cases” but,

where it is not, courts should find jurisdiction under

the plurality’s approach). See, e.g., Donovan, 661

F.3d at 176; United States v. Bailey, 571 F.3d 791,

799 (8th Cir. 2009); Johnson, 467 F.3d at 60. For

example, the First Circuit, “[f]ollowing Justice

26

Stevens’s instruction,” concluded that applying one

test and then the other “ensures that lower courts

will find jurisdiction in all cases where a majority of

the Court would support such a finding.” Johnson,

467 F.3d at 64.

Perhaps most confusing, the Fourth, Fifth, and

Sixth Circuits have not identified any governing

standard from Rapanos. In some cases, these

circuits effectively place the burden on regulated

entities to demonstrate that features are not

jurisdictional under both tests. See Precon Dev.

Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278,

288 (4th Cir. 2011); United States v. Lucas, 516 F.3d

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

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

contortion of the CWA, alone, is sufficient to justify

the Court’s intervention to define “navigable

waters.” The lack of uniformity in applying Rapanos

creates challenges for regulated stakeholders and

regulators alike and must be remedied once and for

all.

B. Of the existing tests, the plurality’s test most

closely follows congressional intent and

Supreme Court precedent.

While it has flaws, the relative permanence test

appropriately draws a line between waters subject

to federal and state regulation, and is the best

existing interpretation of the CWA and Supreme

Court precedent. Following the significant nexus

test as applied in the 2015 Rule, features are pulled

into federal jurisdiction that clearly violate the

SWANCC holding. Solid Waste Agency v. United

27

States Army Corps of Eng’rs, 531 U.S. 159 (2001). In

SWANCC, the Court was asked, and declined, to

assert jurisdiction over isolated features. Id. at 168

(“In order to rule for respondents here, we would

have to hold that the jurisdiction of the Corps

extends to ponds that are not adjacent to open water.

But we conclude that the text of the statute will not

allow this.”). The 2015 Rule, interpreting the

significant nexus test, attempted to do just this. The

2015 Rule asserted federal jurisdiction over adjacent

features, defined as “bordering, contiguous, or

neighboring, including waters separated from other

“waters of the United States” by constructed dikes

or barriers, natural river berms, beach dunes and

the like”, going on to define “neighboring” with

numeric distance limitations:

((A) All waters located within 100 feet of the

ordinary high water mark of a water

identified in paragraphs (1)(i) through (v) of

this definition. The entire water is

neighboring if a portion is located within 100

feet of the ordinary high water mark;

(B) All waters located within the 100-year

floodplain of a water identified in paragraphs

(1)(i) through (v) of this definition and not

more than 1,500 feet from the ordinary high

water mark of such water. The entire water is

neighboring if a portion is located within

1,500 feet of the ordinary high water mark

and within the 100-year floodplain;

(C) All waters located within 1,500 feet of the

high tide line of a water identified in

28

paragraphs (1)(i) or (iii) of this definition, and

all waters within 1,500 feet of the ordinary

high water mark of the Great Lakes. The

entire water is neighboring if a portion is

located within 1,500 feet of the high tide line

or within 1,500 feet of the ordinary high water

mark of the Great Lakes.

Clean Water Rule: Definition of “Waters of the

United States”, 80 Fed. Reg. 37053 (June 29, 2015).

Such an unambiguous assertion of jurisdiction to

isolated features is a clear departure from

SWANCC. See 531 U.S. 159. Allowing the

implementing agencies to follow significant nexus

alone or find features jurisdictional under either

standard would stretch jurisdiction beyond the

limits established by SWANCC. Id.

The absence of federal jurisdiction does not correlate

to environmental degradation. In 2021, the EPA and

Army Corps of Engineers solicited stakeholder input

related to the definition of “navigable waters,” citing

333 projects that were carried out without 404

permits following the finalization of the 2020 Rule.

Defendants’ Opposed Motion for Voluntary Remand

of the NWPR Without Vacatur and Opposed Motion

for Abeyance of Briefing on the 2019 Rule Claims at

36, Pasqua Yaqui Tribe v. United States EPA, 2021

U.S. Dist. LEXIS 163921 (D. Ariz. Aug. 30, 2021)

(No. 4:20-cv-00255-RM).

16 of the 333 projects were related to grassed

waterway construction and maintenance on farms.

Grassed waterways are constructed graded channels

that are seeded with vegetation. The vegetation

29

slows water flow, allowing the conveyance of

agricultural stormwater while preventing sediment

erosion. Grassed waterways are utilized on

farmland to reduce topsoil erosion following

precipitation events. Individually designed and

seeded with grass to transport water slowly out of an

area to a stable outlet, these features are

implemented as a valuable tool to conserve soil and

water quality. A well-maintained grassed waterway

holds soil in place and acts as a natural water filter.

The maintenance of these features is necessary to

ensure their continued ecological benefit. The

requirement of a 404 permit to maintain these

features in no way increases the environmental

value of these projects, and if anything may serve as

a deterrent to voluntary on-farm conservation.

Should the Court decline to adopt the “Rapanos twostep” presented in Section I., NCBA requests the

Court altogether abandon the significant nexus test

and rely solely on the plurality’s test in Rapanos.

30

CONCLUSION

NCBA offers that the Court should combine both

Rapanos tests. Doing so would limit federal

jurisdiction to only those waters that are properly

federal while leaving smaller and less significant

features to state authority. The significant nexus

test supports the utilization of visual indicators –

giving land managers a way to assess whether a

feature

on

their

property

is

potentially

jurisdictional. The relative permanence standard

adds to this, ensuring that the agencies are only

regulating features which provide a notable

contribution of surface water to downstream water

quality. Combining the tests and requiring that

features satisfy both is the best way to curb the

negative impacts highlighted by the justices – no

federal regulation of “the merest trickle” or dry

features that hardly convey surface water, and a

jurisdictional scope that follows the Riverside

Bayview and SWANCC precedents. United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121 (1985);

Solid Waste Agency v. United States Army Corps of

Eng’rs, 531 U.S. 159 (2001). Our recommended twostep process ensures that the feature subject to

federal regulation contains both the visual

indicators demonstrative of a significant nexus in

addition to a contribution of surface water that

constitutes a relatively permanent flow to navigablein-fact water.

Should the Court decline to adopt the “Rapanos twostep”, it should hold the plurality’s relatively

permanent test the sole standard for federal

jurisdiction under the Act. The relative permanence

31

test appropriately draws a line between waters

subject to federal and state regulation. Allowing the

Agencies to follow the significant nexus standard

alone, or utilize an either/or approach, will stretch

jurisdiction beyond the limits established by

SWANCC.

Respectfully submitted.

SCOTT YAGER*

MARY-THOMAS HART

NATIONAL CATTLEMEN’S

BEEF ASSOCIATION

1275 PENNSYLVANIA AVE., N.W.

SUITE 801

WASHINGTON, D.C. 20004

(202) 347-0228

syager@beef.org

* Counsel of Record

April 18, 2022