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

Supreme Court briefApr 13, 2022

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No. 21-454

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL SACKETT, et al., PETITIONERS,

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

et al., RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE NATIONAL STONE,

SAND AND GRAVEL ASSOCIATION AND

THE AMERICAN ROAD AND

TRANSPORTATION BUILDERS ASSOCIATION

IN SUPPORT OF PETITIONERS

NICK GOLDSTEIN

Vice President, Regulatory &

Legal Issues

AMERICAN ROAD &

TRANSPORTATION BUILDERS

ASSOCIATION

250 E Street, S.W.

Washington, D.C. 20024

LAWRENCE R. LIEBESMAN

Counsel of Record

ZACHARY E. HOWERTON

SMOUSE & MASON, LLC

223 Duke of Gloucester Street

Annapolis, Maryland 21401

(410) 269-6620

LRL@smouseandmason.com

(i)

TABLE OF CONTENTS

Interests of the Amici Curiae .................................. 1

Summary of argument ............................................. 3

Argument ................................................................. 5

I. The significant nexus test under

Rapanos and adopted by the Ninth

Circuit has resulted in inconsistancy

and confusion causing significant

harm to vital infrastructure projects. ........ 5

The real-world impacts of

confusing CWA jurisdictional

standards are long standing ......... 6

The vague and arbitrary

significant nexus test over

the

scope

CWA

geographic jurisdiction will

harm the delivery of

important

infrastructure

projects ........................................ 9

II. The siginificant nexus test essentially

creates a presumption of CWA

jurisdiction that is virtually impossible

to overcome .................................................. 14

III. The significant nexus test raises

serious

due

process

concerns

jeopardizing

Amici’s

reasonable

business decisions........................................ 19

IV. CWA requires clear evidence of a

surface hydrologic connection and of

substantial harm to the water quality

of a navigable water – proximate

causation/forseeability

principles

(ii)

provide a good legal paradigm ..................... 20

V. The significant nexus test violates the

fundamental principle of federalism .......... 29

Conclusion ............................................................. 31

(iii)

TABLE OF AUTHORITIES

Cases

Pages

Aransas Project v. Shaw,

775 F.3d. 641 (5th Cir. 2014)...................... 25

Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon,

515 U.S. 687 (1995)..................................... passim

Benefiel v. Exxon Corp.,

959 F.2d 805 (9th Cir. 1992)....................... 24

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020)................................. 28, 31

Department of Transportation v. Public

Citizen,

541 U.S. 752 (2004)..................................... 25, 26

Exxon Co., U.S.A. v. Sofec, Inc.,

517 U.S. 830 (1996) ..................................... 25

FCC v. Fox Television’s Stations, Inc.,

567 U.S. 239 (2012) ..................................... 4, 19

FD & P Enterprises v. U.S. Army Corps of

Eng’rs,

239 F. Supp. 2d. 509 (2003) ........................ 27

FERC v. Miss.,

456 U.S. 742 (1980) ..................................... 30

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................. 29, 30

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

457 F.3d. 1023 (9th Cir. 2006), withdrawn

& superseded, 496 F.3d. 993 (9th Cir.

2007) ............................................................ 14

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,

142 S.Ct. 661 (2022).................................... 19

In re Needham,

354 F.3d. 340 (5th Cir. 2003) ................. 27

(iv)

Cases – Continued

Orchard Hill Building Co. v. U.S. Army

Corps of Eng’rs,

893 F.3d. 1017 (7th Cir. 2018) ..................... 17,18,19

Palsgraf v. Long Island R.R. Co.,

248 N.Y. 339 (1928) .................................... 23

Pascua Yaqui Tribe v. U.S. EPA,

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

3855977 (D. Ariz. Aug. 30, 2021) ............... 21

Palila v. Hawaii Department of Land and

Natural Resources,

852 F.2d. 1106 (9th Cir. 1988).................... 24, 25

Paroline v. United States,

572 U.S. 434 (2014) ..................................... 25

Precon Development Corp. v. U.S. Army Corps

of Eng’rs,

633 F.3d. 278 (4th Cir. 2011)...................... 14,18,19

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

Eng’rs,

603 Fed. App’x 149 (2015) .......................... 18, 19

Rapanos v. United States,

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

Rice v. Harken Exploration Co.,

250 F.3d 264 (5th Cir. 2001) ...................... 17, 27

Sackett v. EPA,

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

Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers,

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

U.S. v. Appalachian Elec. Power Co.,

311 U.S. 377 (1940)..................................... 5

United States v. Bass,

404 U.S. 336 (1971) ................................. 30

(v)

Cases – Continued

United States v. Cundiff,

480 F. Supp. 2d. 940 (W.D. Ky. 2007),

aff’d, 555 F.3d. 200 (6th Cir. 2009) ............ 14

United States v, Mills,

850 F.3d. 693 (4th Cir. 2017) .................. 31

United States v. Lopez,

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

United States v. Lucas,

516 F.3d. 316 (5th Cir. 2008)...................... 14

United States v. Riverside Bayview Homes,

474 U.S. 121 (1985) ................................. 6,14,17

U.S. v. Rueth Development Co.,

189 F. Supp. 2d. 874 (N.D. Ind. 2001),

aff’d, 335 F.3d. 598 (7th Cir. 2003) ............ 21

U.S. Army Corps of Eng’rs v. Hawkes,

578 U.S. 590 ................................................ 20

Statutes and Rules

33 C.F.R. §§ 331.1-333.12 (2022). .................... 14

33 U.S.C. § 1251(g) (2022) ............................... 27

65 Fed. Reg. 12818, 12897 (Mar. 9, 2000) ....... 9

2015 Clean Water Rule, 80 Fed. Reg. 3705455 (June 29, 2015) ....................................... 10

AM. ROAD & TRANSP. BUILDERS ASS’N,

INFRASTRUCTURE INVESTMENT & JOBS ACT,

ANALYSIS & TIMELINE OF ARTBA

LEADERSHIP

THE

ROAD

REAUTHORIZATION 17 (Am. Road &

Transp. Builders Ass’n ed., 2020),

https://www.artba.org/wpcontent/uploads/2021/12/IIJA_Publication

-1.pdf............................................................ 11

Clean Water Act, 33 U.S.C. §§ 1251-1387

(2022) ........................................................... passim

(vi)

Statutes and Rules – Continued

Comprehensive Environmental Response,

Compensation, and Liability Act, 42

U.S.C. §§ 9601-9675 (2022) ........................ 24

Endangered Species Act, 16 U.S.C. §§ 15311544 (2022) .................................................. 23

Infrastructure Investment and Jobs Act, Pub.

L. No. 117-58, 135 Stat. 429 (2021)............ 3,10,11

National Environmental Policy Act of 1969 §

102, 42 U.S.C. §§ 4321 to 4370m-8 (2022) . 11,25,26

National Waters Protection Rule, 85 Fed. Reg.

22250 (Apr. 21, 2020) .................................. 21

Oil Pollution Act, 33 U.S.C. §§ 2701-2762

(2022) ........................................................... 27

Revised Definition of “Waters of the United

States”, 86 Fed. Reg. 69435 (proposed Dec.

7, 2021) ........................................................ 16, 22

Trans-Alaska Pipeline Authorization Act,

43 U.S.C. §§ 1651-1656 (2022) ................... 24

Miscellaneous

American Infrastructure and the Small

Business Perspective: Hearing Before the

H. Comm. on the Small Bus., 115th Cong.

6-7 (2018) (statement of Bill Schmitz, Vice

President, Sales and Quality Control,

Gernatt Asphalt Company) ........................ 8

Corps and EPA Clean Water Rule Before the

H. Comm. on Science, Space, and

Technology,

113th

Cong.

(2014)

(statement

Matthew

Hinck,

Environmental Manager, CalPortland

Company) .................................................... 8

(vii)

Miscellaneous – Continued

CURTIS BEATY ET AL., ASSESSING THE COSTS

ATTRIBUTED TO PROJECT DELAY DURING

PROJECT PRE-CONSTRUCTION STAGES 2, 13

(Tex. A&M Transp. Inst. ed., 2016),

https://static.tti.tamu.edu/tti.tamu.edu/do

cuments/0-6806-FY15-WR3.pdf ................. 12

DAN. B. DOBBS ET AL., THE LAW OF TORTS 443,

559-60 (2d ed. 2000) .................................... 23

David Sunding & David Zilberman, The

Economics of Environmental Regulating

by Licensing: An Assessment of Recent

Changes to Wetlands Permitting Process,

42 NAT. RES. J. 59, 74-76 (2002) ................. 12, 13

DAVID SUNDING & GINA WATERFIELD, REVIEW

OF THE ENVIRONMENTAL PROTECTION

AGENCY AND THE DEPARTMENT OF THE

ARMY 2021 ECONOMIC ANALYSIS FOR THE

PROPOSED “REVISED DEFINITION OF

WATERS OF THE UNITED STATES” RULE 10

(The Brattle Group ed., 2022) .................... 12, 13

Lawrence R. Liebesman et al., Rapanos v.

United States: Searching for a Significant

Nexus Using Proximate Causation and

Foreseeability Principles, 40 ENV’T L. REP.

(ENV’T L. INST.) 1124 (Dec. 2010) ............... 23

Lawrence R. Liebesman & Steven A.G.

Davison, Takings of Wildlife Under the

Endangered Species Act After Babbitt v.

Sweet Home Chapter of Communities for a

Great Oregon, 5 UNIV. OF BALT. J. OF ENV’T

L. (1995)....................................................... 25

(viii)

Miscellaneous – Continued

Memorandum from Dr. Amanda Rodewald,

Chair of the SAB Panel, to Dr. David

Allen, Chair of EPA’s Scientific Advisory

Board on the Technical Basis of the

Proposed Rule 6 (Sept. 2, 2014).................. 21, 22

U.S. EPA & Dep’t of the Army, Economic

Analysis for the Proposed “Revised

Definition of ‘Waters of the United States’’

Rule 77 (U.S. EPA & Dep’t of the Army,

eds.

2021),

https://www.epa.gov/system/files/documen

ts/2021-11/revised-definition-ofwotus_nprm_economic-analysis.pdf........... 13

U.S. EPA & DEP’T OF THE ARMY, TECHNICAL

SUPPORT DOCUMENT FOR THE PROPOSED

“REVISED DEFINITION OF ‘WATERS OF THE

UNITED STATES’” RULE 228- 38 (U.S. EPA

& Dep’t of the Army eds., 2021),

https://www.epa.gov/system/files/documen

ts/2021-12/tsd-proposedrule_508.pdf ......... 14, 15

The National Stone, Sand and Gravel Association,

the American Road and Transportation Builders

Association, as Amici Curiae, respectfully submit this

brief in support of Petitioners Michael Sackett and

Chantelle Sackett.1

INTERESTS OF THE AMICI CURIAE

Amici represent members that build and provide

aggregate construction materials for vital public

infrastructure services including flood control, clean

energy, and water supply management and for

transportation projects critical in addressing urgent

transportation needs.1

On a daily basis, Amici are forced to navigate the

confusing and ever-changing maze of regulations and

policy statements issued by the Army Corps of

Engineers (“Corps”) and the Environmental

Protection Agency (“EPA”) t o determine the answer

to what should be a simple question: does a given

wetland fall under federal jurisdiction pursuant to

the Clean Water Act ("CWA")?2

Under the Rapanos “Significant Nexus” test

adopted by the Ninth Circuit, determining the answer

to this simple inquiry is exceedingly difficult.3 The

All parties have consented to the filing of this brief.

Pursuant to this Court's Rule 37.6, Amici state that no counsel for

any party in this case authored this brief in whole or in part, and

no person or entity other than the Amici and their counsel have

made a monetary contribution to the preparation and submission

of this brief.

2 Clean Water Act, 33 U.S.C. §§ 1251-1387 (2022).

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

answer often varies depending on in which part of the

Country the wetland is located or which particular

agency staff member is consulted. The time has come

for this Court to provide clear criteria for CWA

jurisdiction that recognizes the proper limits of

federal jurisdiction for wetlands remote from

traditionally navigable waters and eliminates the

inconsistency and lack of clarity inherent in the

significant nexus test.

Amici consist of the following:

The National Stone, Sand and Gravel

Association ("NSSGA") the leading advocate for the

aggregates industry. Its members are responsible for

the essential stone, sand, and gravel used to build

road, bridge, port, rail, and public works projects as

well as erosion control, wastewater, sewage, air

pollution control, and drinking water purification

systems. Homes, schools, businesses, and hospitals

and the structures that support our modern society

would not exist without the building materials mined

by NSSGA members. The Association represents

about 400 members and over 100,000 working men

and women in the aggregates and related industries.

During 2021 alone, a total of more than 2.5 billion

metric tons of aggregate materials (crushed stone,

sand, and gravel), valued at nearly $29 billion, were

produced and sold in the United States. Due to

geologic factors, sand and gravel are often located

near or under streams and other wetlands.

Consequently,

NSSGA's

members frequently

excavate materials from these areas.

NSSGA

members are diligent stewards of the environment

and take great effort with land reclamation activities

that include wetland restoration, creation, and

enhancement, as well as flood storage enhancement.

The American Road and Transportation

Builders Association ("ARTBA"), is made up of

more than 8,000 member organizations in the

transportation construction industry, including

construction contractors, professional engineering

firms, federal, state, and local transportation

administrators, heavy equipment manufacturers,

and materials suppliers. ARTBA's members are

responsible for construction of vital public

infrastructure projects such as highways, bridges,

airports, railroads, and mass transit facilities - a

major priority under the recently enacted

Infrastructure Investment and Jobs Act (“IIJA”).4

Additionally, ARTBA members are directly

involved with the federal wetlands permitting

program and undertake a variety of constructionrelated activities under the CWA.

The

transportation construction industry generates

more than $500 billion annually in U.S. economic

activity and sustains more than 4 million American

jobs.

SUMMARY OF ARGUMENT

1) The significant nexus test adopted by the Ninth

Circuit has created substantial confusion and

uncertainty for Amici’s members in providing

aggregate materials for construction of needed public

works transportation projects, making it difficult to

deliver materials and to construct these essential

Infrastructure Investment and Jobs Act, Pub. L. No. 11758, 135 Stat. 429 (2021).

projects in a timely fashion to protect public health

and safety. This vague standard is impacting the

ability to efficiently supply materials needed for and

to build the infrastructure projects under the

Infrastructure Investment and Jobs Act, as well as

increasing the costs of public works projects across the

country without environmental improvement.

2) The significant nexus test essentially creates a

presumption of CWA jurisdiction that is virtually

impossible to overcome. Courts have largely granted

considerable deference to the Corps and EPA in

asserting jurisdiction allowing the agencies to assert

jurisdiction based on a range of on non-site specific

information such as maps, aerial photography,

watershed studies, and National Wetlands Inventory

(“NWI”) maps. Even the most general regional study

could support a finding that any effect, however

remote, within a watershed is more than speculative

and insubstantial. Amici often agree to such

expansive jurisdiction to obtain a permit rather than

challenging jurisdiction administratively and in court,

at great time and expense. The difference in cost can

be millions of dollars in mitigation.

3) The Significant Nexus test raises serious due

process concerns. The test implicates the void for

vagueness doctrine. Due to the lack of precise

standards, it fails to ensure fair notice so that

regulated entities know what is required of them” and

fails to provide guidance “so that those enforcing the

law do not act in an arbitrary and discriminatory

way.” FCC v. Fox Television’s Stations, Inc., 567 U.S.

239, 253 (2012).

4) Amici submit that there must be credible

evidence of: (a) a direct, discrete surface hydrologic

connection between an wetland and a navigable

water; and (2) a demonstration that a discharge into

a wetland adjacent to such a connected water has a

substantial injurious impact on the water quality of

downstream Traditionally Navigable Water (TNW).5

The principles of proximate causation and

foreseeability set forth by Justice O’Connor in Babbitt

v. Sweet Home Chapter of Communities for a Great

Oregon, 515 U.S. 687 (1995) provide a useful legal

paradigm for asserting CWA jurisdiction.

5) The significant nexus test violates the

fundamental principle of federalism that, absent a

"clear statement" from Congress, a reviewing court

should not sanction usurpation of State and local

control of land and water resources. Affirming the

Ninth Circuit’s decision would upset the delicate

balance between regulation under the CWA and

under State and local water pollution programs.

ARGUMENT

THE SIGNIFICANT NEXUS TEST HAS

RESULTED IN INCONSISTENCY AND

CONFUSION CAUSING SIGNIFICANT

HARM TO VITAL INFRASTRUCTURE

5 As the Court held in Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)

[hereinafter SWANNC] the word “navigable” has at least the

import of showing use what Congress had in mind as its authority

for enacting the CWA: its traditional jurisdiction over waters that

were or had been navigable in fact or which could reasonably be

so made” (citing U.S. v. Appalachian Elec. Power Co., 311 U.S.

377, 407-408 (1940)).

PROJECTS.

A. The Real-World Impacts of Confusing

CWA Jurisdictional Standards Are

Long Standing

Amici have long been confused over CWA

jurisdiction. Following the Supreme Court’s SWANCC

decision that coined the phrase “significant nexus”

NSSGA surveyed its members seeking information

about the state of the CWA jurisdictional regulations.6

The survey asked respondents to describe the

jurisdictional tests that Corps personnel were using to

evaluate wetlands, including separate questions

regarding the use by field personnel of groundwater,

man-made conveyances and the 100-year floodplain to

establish jurisdiction. The results of the survey are

still relevant in light of the Rapanos decision and

reveal a gross inconsistency of implementation that is

at best unpredictable and at worst, indecipherable.

The following are examples of survey responses

demonstrating the inconsistent approaches used by

Corps field personnel:

•

"At present, the mere presence of a

100-year flood plain and the absence of

two barriers to prevent wetland waters

from reaching the navigable waters are

sufficient criteria to name the wetland

as jurisdictional." (SC)

“It was the significant nexus between the wetlands and

‘navigable waters’ that informed our reading of the CWA in

Riverside Bayview Homes.” SWANNC, 531 U.S at 167.

•

"The Charleston District uses a

combination of distance from the

navigable waters to the isolated

wetlands and any connection such as a

ditch to assert jurisdiction.” (SC)

•

"No distinction is made by the Corps

between

natural and man-made

conveyances in their assertion of

jurisdiction... There is no distance

threshold between an "isolated"

wetland and a navigable water." (CO)

•

"Every

swale

and

abandoned

agricultural drainage ditch was

subjected to jurisdiction.” (VA)

•

The Charleston District uses a

combination of distance from the

navigable waters to isolated wetlands

and any connection such as a ditch to

assert jurisdiction. (SC)

In fact, Justice Scalia in Rapanos highlighted this

inconsistency.7 Industry comments on the impact of

the significant nexus test since Rapanos reaffirm the

survey responses. In his June 3, 2014 testimony

before the House Science Committee on the Corps and

EPA’s proposed Clean Water Rule, Matthew Hinck,

“Even after SWANCC, the lower courts have continued to

uphold the Corps sweeping assertion of jurisdiction over

ephemeral channels and drains as tributaries.” Rapanos, 547 U.S.

at 726 (internal quotes omitted).

Environmental Manager CalPortland Company

stated that “The jurisdictional uncertainties in this

rule are particularly problematic in the arid west. For

example, the proposed rule fails to define the

distinction between ephemeral ‘tributaries’ which are

potentially jurisdictional and ‘gullies’ or ‘rills’ which

are exempt. The proposed rule also irrationally

exempts ‘vegetated swales’ which differ from dry

washes and other features of the arid west only in that

they occur in more humid parts of the country and are

therefore more likely to contain water. …the proposed

rule… unjustifiably extend jurisdiction to areas that

are functionally equivalent land, not waters, contrary

to the requirements of the CWA...”. 8

In testimony delivered to the House Small

Business

Committee

hearing

“American

Infrastructure & Small Business Perspective” on

April 25, 2018, NSSGA member Bill Schmitz of

Gernatt Asphalt testified about Corps personnel

misidentifying a treatment system as a water of the

United States.9 Mr. Schmitz described a twelve-year

ordeal when the Corps incorrectly identified settling

basins as wetlands resulting in hundreds of thousands

of dollars in consulting and attorney fees and

equipment.

Corps and EPA Clean Water Rule Before the H. Comm. on

Science, Space, and Technology, 113th Cong. (2014) (statement of

Matthew Hinck, Environmental Manager, CalPortland

Company).

American Infrastructure and the Small Business

Perspective: Hearing Before the H. Comm. on the Small Bus.,

115th Cong. 6-7 (2018) (statement of Bill Schmitz, Vice President,

Sales and Quality Control, Gernatt Asphalt Company).

It is vitally important that this Court reaffirm the

limited jurisdiction of the federal government under

the CWA and provide clear jurisdictional criteria.

Such a ruling will go a long way toward providing

Amici's diverse membership with the certainty and

predictability that has long been lacking in wetlands

permitting.

The Vague Significant Nexus Test

Will Harm Planning and Delivery

Important

Infrastructure

Projects

The scope and reach of CWA jurisdiction

directly affects the ability to supply our nation with

construction materials needed to build homes and

communities and to improve our infrastructure. In

the confusion that has followed the Rapanos

significant nexus test, Amici have found it difficult

to predict when the Corps will assert jurisdiction

over isolated and ephemeral areas, and thereby

force Amici into the time-consuming and expensive

individual section 404 permitting process. 10 The

reigning confusion over the proper jurisdictional

reach of the CWA in the wake Rapanos has had a

chilling effect on the carefully considered decisions

and investments of state and local governments to

meet vital public needs, including lifesaving

transportation infrastructure.

The Corps defines "ephemeral streams" as having

"flowing water only during, and for a short duration after,

precipitation events in a typical year. Ephemeral stream beds

are located above the water table year-round. Groundwater is

not a source of water for the stream. Runoff from rainfall is

the primary source of water for stream flow." 65 Fed. Reg.

12818, 12897 (Mar. 9, 2000).

The federal wetlands permitting program

directly shapes the work environment for ARTBA

members as they plan and build transportation

improvements under CWA jurisdiction. Improving

the nation’s transportation infrastructure and

protecting

essential

water

resources

are

complementary interests which can be reflected in

implementation of the CWA.

Of all the CWA’s provisions, the regulatory

definition of “Waters of the United States”

(“WOTUS”) is the most important for parties to a

transportation project. Public agencies, planners,

designers, and contractors need transparent

guidance in this regard to allow them to fund, plan,

and schedule a project accurately. Overly broad

and ambiguous WOTUS definition delays project

construction creating additional costs.

For

example, the 2015 Clean Water Rule made it more

likely that regulators could apply federal

jurisdiction to a ditch ancillary to a project with

little or no advance notice.

The resultant

permitting process creates unexpected project

delays. Moreover, project opponents can weaponize

this regulatory uncertainty to stop or delay

transportation improvements – and the job

opportunities they support – entirely.

The need to resolve CWA confusion under the

significant nexus test has become especially

important with the enactment of the bipartisan

2015).

2015 Clean Water Rule, 80 Fed. Reg. 37054-55 (June 29,

Infrastructure Investment & Jobs Act (“IIJA”).12

The law includes the largest increase in federal

highway and infrastructure investment in more

than fifty years.

It offers an unprecedented

opportunity to repair and modernize every state’s

transportation system. In addition, the legislation

provides new investments that will build renewable

energy projects, upgrade the power grid, expand

broadband, build new water and waste systems,

invest in ports, rail, transit and airport facilities

and create new opportunities to improve

environmental mitigation projects.

The IIJA also codifies the “one Federal

Decision” streamlined reviews under the National

Environmental

Policy

Act

(“NEPA”)

consolidating permitting decisions into one single

document, designating a federal “lead” agency that

determines a schedule for the process, sets a goal of

finalizing reviews within an average of two years,

and requires completion of all authorization

decisions for major projects within ninety days of

the issuance of a record of decision.,13 Thus,

Congress recognized need to expedite the NEPA

process

for timely

delivery of these critical

projects. Given the need for timely delivery of

aggregate materials, the vague and expansive

significant nexus test could result in permit delays

Infrastructure Investment and Jobs Act, Pub. L. No. 11758, 135 Stat. 429 (2021).

13 AM. ROAD & TRANSP. BUILDERS ASS’N, INFRASTRUCTURE

INVESTMENT & JOBS ACT, ANALYSIS & TIMELINE OF ARTBA

LEADERSHIP ON THE ROAD TO REAUTHORIZATION 17 (Am. Road &

Transp. Builders Ass’n ed., 2020), https://www.artba.org/wpcontent/uploads/2021/12/IIJA_Publication-1.pdf.

and mitigation expenses impacting the ability to

produce the materials needed to meet tight project

delivery schedules under the IIJA.

Additionally, project delays resulting from the

current transportation project review and approval

process lead to demonstrable and significant costs

to the taxpayers. According to a 2016 report by the

Texas A&M Transportation Institute based on

example projects, delays were estimated to cost

$87,000 per month for a small project (e.g.,

reconstruction of a rural road), $420,000 per month

for a medium-sized project (e.g., widening of a semirural highway), and $1.3 million per month for a

large project (e.g. reconstruction of a highway in a

large metro area).14

A 2022 study by David Sunding and Gina

Waterfield demonstrates the problems, costs, and

delays in applying the significant nexus test. In

commenting on the agencies recent proposed

revisions to the Waters of the United States

(“WOTUS”) definition that would reinstate the

significant nexus test, Sunding and Waterfield cite

to their 2002 study quoted by Justice Scalia in

Rapanos that “the average applicant for in

individual permit spends 788 days and $271,596 in

completing the process and the average applicant

for a nationwide permit spends 313 days and

$28,915, not counting the costs of mitigation or

CURTIS BEATY ET AL., ASSESSING THE COSTS ATTRIBUTED

TO PROJECT DELAY DURING PROJECT PRE-CONSTRUCTION STAGES

(Tex.

A&M

Transp.

Inst.

ed.,

2016),

https://static.tti.tamu.edu/tti.tamu.edu/documents/0-6806-FY15WR3.pdf.

design changes.”15 They note that, “These delays

are likely to be larger if an increase of new permits

is not offset by additional staff and infrastructure

for processing. The likelihood of delays may also

increase considerably, given the subjectivity of the

proposed rule in identifying the jurisdictional

waters compared to the relatively clear standards

of the [Navigable Waters Protection Rule]” - which

eliminated the significant nexus test.16 Further,

“In addition to the cost of delays and uncertainty to

permittees, the regulatory authority will also incur

costs associated with an increased number of caseby-case

reviews

and

jurisdictional

determinations…

and

the

potential

for

disagreements between permittee and permitting

authority.”

In fact, the agencies admit that

reinstating the significant nexus test will increase

permit costs and permitting time and compensatory

mitigation costs.17

Thus, the ability to deliver important

infrastructure projects, supply materials needed to

Rapanos, 547 U.S. at 721 (citing David Sunding & David

Zilberman, The Economics of Environmental Regulating by

Licensing: An Assessment of Recent Changes to Wetlands

Permitting Process, 42 NAT. RES. J. 59, 74-76 (2002)).

DAVID SUNDING & GINA WATERFIELD, REVIEW OF THE

ENVIRONMENTAL PROTECTION AGENCY AND THE DEPARTMENT OF

THE ARMY 2021 ECONOMIC ANALYSIS FOR THE PROPOSED “REVISED

DEFINITION OF WATERS OF THE UNITED STATES” RULE 10 (The

Brattle Group ed., 2022).

17 U.S. EPA & Dep’t of the Army, Economic Analysis for the

Proposed “Revised Definition of ‘Waters of the United States’’

Rule 77 (U.S. EPA & Dep’t of the Army, eds. 2021),

https://www.epa.gov/system/files/documents/2021-11/reviseddefinition-of-wotus_nprm_economic-analysis.pdf.

sustain and improve communities in a timely and

cost effective manner will only worsen if the

significant nexus test remains.

II.

THE

SIGNIFICANT

NEXUS

TEST

ESSENTIALLY

CREATES

PRESUMPTION OF CWA JURISDICTION

THAT IS VIRTUALLY IMPOSSIBLE TO

OVERCOME

The Government has the burden of proof in

establishing a CWA violation by a preponderance of

the evidence in a civil case and “beyond a

reasonable doubt” in a criminal case.18 However,

since United States v. Riverside Bayview Homes,

474 U.S. 121 (1985) the courts have largely granted

the Government considerable deference creating a

presumption that is almost impossible to

overcome.19 A landowner contesting jurisdiction is

faced with bringing an expensive, time consuming,

and likely unsuccessful administrative appeal of a

Corps jurisdictional determination, not to mention

further litigation.20 Indeed, Amici are at the mercy

of Corps reviewers who could rely on a range of nonUnited States v. Lucas, 516 F.3d. 316 (5th Cir. 2008)

(upholding criminal conviction for CWA violations holding that

the wetlands at issue, which were adjacent to tributaries of

navigable waters were waters of the United States under all three

tests set forth in Rapanos).

See Precon Development Corp. v. U.S. Army Corps of

Eng’rs, 633 F.3d. 278 (4th Cir. 2011); United States v. Cundiff,

480 F. Supp. 2d. 940 (W.D. Ky. 2007), aff’d, 555 F.3d. 200 (6th Cir.

2009); N. Cal. River Watch v. City of Healdsburg, 457 F.3d. 1023

(9th Cir. 2006), withdrawn & superseded, 496 F.3d. 993 (9th Cir.

2007).

20 33 C.F.R. §§ 331.1-331.12 (2022).

site specific information such as maps, aerial

photography, watershed studies, National Wetland

Inventory

maps,

National

Oceanic

and

Atmospheric Administration (“NOAA”) data,

hydrologic models, and/or literature studies to find

a significant nexus.21 Even the most general

regional study could support a finding that any

effect, however remote, within a given watershed,

meets the significant nexus test. The risk that the

Corps may assert jurisdiction over such routine and

necessary actions such as pits excavated in dry land

for the purpose of obtaining fill, sand, or gravel that

accumulate water has a direct impact on routine

aggregate operations.

Similarly, ARTBA members’ concern has been

the erratic treatment of roadside ditches. They are

common to transportation improvement projects,

primarily because they accommodate stormwater

runoff and keep the roadway from flooding during

rain events. If the owner and contractor on a

project have a common understanding that ditches

do not require federal permits, then they can build

and maintain them without delay using the best

safety-related practices.

Conversely, even the

possibility of federal permitting for these ditches

compels the parties to delay their addition to a

project – or delay progress on the entire project –

until completing this bureaucratic process. The

See U.S. EPA & DEP’T OF THE ARMY, TECHNICAL SUPPORT

DOCUMENT FOR THE PROPOSED “REVISED DEFINITION OF ‘WATERS

OF THE UNITED STATES’” RULE 228- 38 (U.S. EPA & Dep’t of the

Army

eds.,

2021),

https://www.epa.gov/system/files/documents/2021-12/tsdproposedrule_508.pdf.

federal permitting process and associated delays

also carry associated administrative and legal

costs.

The significant nexus test is especially

problematic under the agencies’ recent proposal to

restore the pre-2015 WOTUS definition because it

allows CWA jurisdiction over wetlands to be

established through an unbroken shallow

subsurface connection to a Traditionally Navigable

Water (“TNW”).22 The agencies have never defined

how to distinguish such a connection from

groundwater that has never been considered Water

of the United States. The shallow subsurface

connection based on “best professional judgment”

can be imprecise and prone to abuse in the field.

For example, one Corps reviewer could find that

groundwater from a tributary has a shallow

subsurface connection because it occasionally

reaches the twelve-inch root zone but is usually at

a much lower depth. Another reviewer looking at

the same kind of hydrologic system could find that

the subsurface waters is deep groundwater,

although it occasionally inundates the root zone.

The reviewer in the former case could then

establish adjacency over a large area of the

landscape. Whereas the latter reviewer may not.

In many areas of the United States, digging a

shallow subsurface depression in the ground leads

to groundwater. Will the potential connection to

shallow subsurface flow lead to monitoring and

perhaps mitigation? The practical consequences of

Revised Definition of “Waters of the United States”, 86

Fed. Reg. 69435 (proposed Dec. 7, 2021).

the variations of “best professional judgement” are

staggering.

The nebulous distinction on the

groundwater/shallow subsurface connection creates

an almost impossible burden on a landowner trying

to determine if subsurface flow is unregulated

groundwater. A landowner would have to install

well and monitor the groundwater seasonally to

attempt to prove that underground flow does not

establish an adjacency connection – an expensive

and time-consuming process.23

The case of Orchard Hill Building Co. v. U.S.

Army Corps of Engineers, 893 F.3d. 1017 (7th Cir.

2018) (before Bauer, Barrett, and St. Eve) illustrates

the kind of burden facing a land owner in contesting

the Corps finding on whether a wetland 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” to satisfy Justice

Kennedy’s significant nexus test.24 In Orchard Hill

the Corps had asserted jurisdiction over a thirteenacre wetland, Warmke Wetlands, surrounded by

Ground water alone should not create a hydrologic

connection, unless the wetland connected by groundwater is

directly abutting a navigable water so as to be "inseparably bound

up" with that water (as in Riverside Bayview). As the Fifth

Circuit explained in Rice v. Harken Exploration Co., 250 F.3d 264

(5th Cir. 2001), it would be an unwarranted expansion of the

CWA to conclude that a discharge that migrates into a navigable

water via natural groundwater seepage could become a

"discharge" into a navigable water. Id. at 271 (Congress was

aware of the connection between groundwater and surface water,

but nonetheless decided to leave groundwater unregulated under

the CWA).

24 Rapanos, 547 U.S. at 780.

residential development adjacent to Midlothian Creek

near Chicago. The closest navigable water was Little

Calumet River, eleven miles away. In between the

wetlands and river are man-made ditches, open-water

basins, and sewer pipes. The builder spent twelve

years and three administrative appeals challenging

the claim of jurisdiction before the Seventh Circuit

finally held that the Corps had not provided

substantial evidence of a significant nexus.25 The

Corps had claimed that the Warmke Wetlands were

similarly situated with 165 wetlands identified on

NWI maps and were considered part of the Midlothian

Creek Watershed. The Corps cited the flooding

problems in the area and the nutrient reduction

benefits of wetlands and claimed, based on scientific

literature and studies, that the Warmke Wetlands, in

combination with the other 165 wetlands, met the

significant nexus test. However, in finding that the

Corps failed to provide substantial evidence that 165

wetlands were similarly situated, the Court faulted

the Corps reliance on the NWI maps, without any

explanation of how these wetlands in the same

watershed of twenty square miles were adjacent to the

same tributary. In rejecting the Corps evidence as

insufficient, the Court held the Corps did not provide

record evidence to support its assumption that the 165

acres were “similarly situated” stating that “while we

review the Corps determination narrowly, no amount

of agency deference permits us to let slide critical

findings bereft of record support… Without first

showing or explaining how the land is in fact similarly

The Court noted that “the history of the Warmke

[Wetlands] jurisdictional determination can be described as

lengthy, contentions and complex” as the Corps district engineer

aptly put it. Orchard Hill Bldg. Co., 893 F.3d at 1019.

situated is to disregard the test’s limits.” Orchard Hill

Bldg. Co., 893 F.3d. at 1026.26

These examples highlight the importance of this

Court finally providing clarity on the reach of Clean

Water Act jurisdiction.

III.

THE SIGNIFICANT NEXUS TEST RAISES

SERIOUS DUE PROCESS CONCERNS

The application of the significant nexus test

implicates the void for vagueness doctrine raising

“discrete due process concerns.” FCC v. Fox Television

Stations, Inc., 567 U.S. 239, 253 (2012). Due to the

lack of precise standards, it fails to ensure fair notice

so that regulated entities “know what is required of

them so they may act accordingly” and fails to provide

guidance “so that those enforcing the law do not act in

an arbitrary or discriminatory way.” Id. Vague

standards “enable intrusions into the private lives and

freedoms of Americans by bare edict rather than only

with the consent of their elected representatives.”

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 142 S.Ct.

661, 669 (2022) (Gorsuch, J., concurring). Since

In Orchard Hill Building Company, the Court cited the

Fourth Circuit’s decision in Precon Development Corp. v. U.S.

Army Corps of Engineers, 633 F.3d. 278 (4th Cir. 2011) where the

Court rejected the Corps assertion of jurisdiction over 4.8 acres of

wetlands more than 7 miles from the nearest navigable water

because the record did contain enough evidence to assess the

effects of the wetlands at issue in relation to the 448 acres of

wetlands in the watershed. The Corps eventually developed more

site-specific evidence which led to another round of litigation and

a second appellate ruling upholding the record supporting

jurisdiction four years later. Precon Dev. Corp. v. U.S. Army

Corps of Eng’rs, 603 Fed. App’x 149 (2015).

Rapanos, this Court has expressed concern that the

CWA’s reach is “notoriously unclear and the

consequences to landowners even for inadvertent

violations can be crushing.” U.S. Army Corps of

Eng’rs v. Hawkes, 578 U.S. 590, 602 (Kennedy, J.,

concurring) (quoting Sackett v. EPA, 566 U.S. 120, 132

(2012)); see also Rapanos, 547 U.S. at 757 (Roberts,

C.J., concurring) (advising the agencies to stop

asserting “essentially limitless” jurisdiction under the

CWA and issue a definitional rule that ordinary

landowners can understand and abides by the “clearly

limiting terms Congress employed in the CWA”).27

Aggregate operations often require access to

mining sites that may be dry most of the year,

especially in the west. A site is often mined in phases

over several years. Defining the precise limits of CWA

jurisdiction over marginally wet areas is difficult.

Without precise standards defining the limits of CWA

jurisdiction, a mine operator can face substantial civil

and even criminal penalties under CWA section 1319

(c)(d) by determining, in good faith, that an ephemeral

“wet depression” miles from any flowing stream is an

exempted, only to face an enforcement action claiming

the impacted area as regulated under the significant

nexus test. Aside from penalties, such enforcement

could impact the operator’s ability to supply aggregate

for important road construction projects.

IV.

CWA REQUIRES CLEAR EVIDENCE OF A

SURFACE HYDROLOGIC CONNECTION

AND OF SUBSTANTIAL HARM TO THE

WATER QUALITY OF A NAVIGABLE

Rapanos, 547 U.S. at 757.

WATER

PROXIMATE

CAUSATION/FORSEEABILITY

PRINCIPLES PROVIDE A GOOD LEGAL

PARADIGM

The fundamental problem with “significant

nexus,” a term that does not appear anywhere in the

Clean Water Act, is that it has no inherent limiting

principles. It empowers the agencies to assert CWA

jurisdiction over any wetland adjacent to a water

feature with an intermittent, remote, or indirect

connection to a navigable water and expands CWA

jurisdiction well beyond the limits set by Congress.28

Under the significant nexus test, every isolated

wetland with even the most tenuous and fleeting of

connections to a navigable water will be subject to

federal jurisdiction under the CWA if one molecule

of water from the wetland eventually reaches, or

could potentially reach, a navigable water. 29

Clearly, such a result is not what Congress intended

under the CWA as recognized by the EPA’s Scientific

Amici supported the National Waters Protection Rule, 85

Fed. Reg. 22250 (Apr. 21, 2020) that eliminated the significant

nexus test and based on CWA jurisdiction on wetlands directly

connected by surface flow to a protected navigable water. That

rule was vacated by Pascua Yaqui Tribe v. U.S. EPA, No. CV-2000266-TUC-RM, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021).

29 The district court decision in U.S. v. Rueth Development

Co., 189 F. Supp. 2d. 874 (N.D. Ind. 2001), aff’d, 335 F.3d. 598

(7th Cir. 2003) following SWANCC is instructive. The Court

reasoned that if "a molecule" of water from the disputed wetland

eventually intermingles with the molecules of a navigable water,

the Corps has jurisdiction." A drop of rainwater landing in the

Site is certain to intermingle with water from the Little Calumet

River... the Site, therefore, has the 'significant nexus' to a

navigable waterway [as required by SWANCC]." Rueth, 189 F.

Supp. 2d at 877.

Advisory Board.30

Amici submit that, in order to be true to the Clean

Water Act, there must be credible evidence of (1) a

continuous surface hydrologic connection between a

wetland and a Traditionally Navigable Water

(“TNW”); and (2) a demonstration that a discharge

into the wetland has a substantial injurious impact on

the water quality of the connected TNW. The greater

the distance and the more tenuous the connection to

that navigable water, the stronger the site-specific

evidence is needed to assert jurisdiction. Under

SWANCC, an isolated water or wetland would not be

covered.31.

The Scientific Advisory Board panel commenting on the

EPA’s proposed Clean Water rule in 2014 recognized that

significant nexus is not a scientific, but a legal term which

requires a policy determination in light of law and science. The

panel urged the EPA to “articulate a definition that recognizes the

relative strength of downstream effects to inform the conclusion

of those effects for purposes of interpreting the CWA.” The SAB

also stated that there is a “decreasing likelihood that waters with

less than perennial or intermittent flows will affect the chemical,

physical, and biological integrity of downstream waters.”

Memorandum from Dr. Amanda Rodewald, Chair of the SAB

Panel, to Dr. David Allen, Chair of EPA’s Scientific Advisory

Board on the Technical Basis of the Proposed Rule 6 (Sept. 2,

2014) (on file with author).

31 The agencies recent proposal rule would apply the

significant nexus test to “other waters” to include intrastate

waters such as mudflats, prairie potholes, sloughs, and wet

meadows that lack any surface flow to a tributary of a TNW.

Revised Definition of “Waters of the United States”, 86 Fed. Reg.

69419-20 (proposed Dec. 7, 2021). The proposed rule allowing

aggregation of such waters within a watershed amounts to an end

run around SWANCC. SWANCC., 531 U.S at 161 (“Permitting

respondents to claim federal jurisdiction over ponds and mudflats

falling within the migratory bird rule would result in a significant

Amici suggest that applying the time-tested

principles of proximate causation and foreseeability

can provide a useful legal paradigm to give meaning

to the CWA’s limits.32 These principles are long

standing.33

They have been applied under the

Endangered Species Act (“ESA”)34 and other federal

environmental

statues.

Justice O’Connor’s

concurrence in Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687, 708

(1995) applying these principles to the ESA provides

a good framework for determining whether impacting

a wetland a distance from a navigable water would

violate the CWA.

Justice O’Connor held that

“significant habitat modification must cause actual as

opposed to hypothetical or speculative death or injury

noting that “the regulations application is limited by

ordinary principles of proximate causation which

introduces notions of foreseeability.” Id. at 709-10

(O’Connor, J., concurring).

Importantly, she

specifically stated, “I see no indication that

Congress… intended to dispense of ordinary

impingement of the State’s traditional and primary power over

land and water use”).

32 See Lawrence R. Liebesman et al., Rapanos v. United

States: Searching for a Significant Nexus Using Proximate

Causation and Foreseeability Principles, 40 ENV’T L. REP. (ENV’T

L. INST.) 1124 (Dec. 2010).

33 See DAN. B. DOBBS ET AL., THE LAW OF TORTS 443, 559-60

(2d ed. 2000). Under Palsgraf v. Long Island R.R. Co., 248 N.Y.

339 (1928) “Proximate Cause” is not the same as “but for” factual

cause. It is “not about causation at all but about the appropriate

scope of responsibility….” [describing] the practical necessity for

restricting liability within some reasonable bounds in the strict

liability context.

34 16 U.S.C. §§ 1531-1544 (2022).

principles of proximate causation.”

Id. at 712

(O’Connor, J., concurring). Strict liability means

liability “without fault, it does not normally mean

liability for every consequence, however remote, of one’s

conduct.” Id. at 712. (O’Connor, J., concurring).

“[P]roximate causation depends to a great extent on

considerations of fairness of imposing liability for

remote consequences.” Id. at 713. (O’Connor, J.,

concurring) (emphasis supplied). In so doing, Justice

O’Connor noted that the same principles were

applicable under the Trans-Alaska Pipeline

Authorization Act,35 but not under the Comprehensive

Environmental

response

and

Liability

Act

(“CERCLA”)

(“Superfund”)

where

Congress

expressly rejected the causation requirement.37 Id. at

712 (O’Connor, J., concurring). In her view, the ESA’s

“harm” regulation is limited to significant habitat

modification, by impairing essential behaviors which

proximately (or foreseeably) cause actual death or

injury to identifiable animals that are protected under

the ESA. However, where the connection between the

habitat modification and the injury is so indirect, it

did not satisfy that test. She took issue with the

Court of Appeals ruling holding that “state agency had

committed a taking of the endangered Palila bird by

permitting federal sheep to eat mamani-naio

seedlings that when full-grown, might have fed and

43 U.S.C. §§ 1651-1656 (2022).

42 U.S.C. §§ 9601-9675 (2022).

37 Justice O’Connor cited Benefiel v. Exxon Corp., 959 F.2d

805, 807-08 (9th Cir. 1992) (in enacting the Trans-Alaska Pipeline

Authorization Act which provides for strict liability of damages,

Congress did not intend to abrogate common-law principles of

proximate causation to reach “remote and derivative”

consequences).

sheltered the bird.” Palila v. Hawaii Department of

Land and Natural Resources, 852 F.2d. 1106 (9th Cir.

1988). To Justice O’Connor, Palila was wrongly

decided because “the destruction of the seedlings did

not proximately cause actual death or injury to

indefinable birds, it merely prevented the

regeneration of forest land not currently inhabited by

actual birds.” Babbitt, 515 U.S. at 714 (O’Connor, J.,

concurring).

The Sweet Home Court left open how the

proximate cause limitations might be applied.38 Over

the years, federal courts have largely followed Justice

O’Connor’s analysis. The Fifth Circuit in Aransas

Project v. Shaw (“TAP”), 775 F.3d. 641, 660 (5th Cir.

2014) found her analysis “instructive” in holding that

the “long chain of causation” precluded imposing

liability” for the death of whooping cranes in the Gulf

of Mexico on the Texas Commission on Environmental

Quality’s issuance of water withdrawal permits.

(“Applying a proximate cause limit to the ESA must

therefore mean that liability may be based neither on

the ‘butterfly effect’ nor on remote actors in a vast and

complex ecosystem”). Id. at 658-59. The TAP Court

cited several Supreme Court rulings applying

proximate causation principles.39 The Court also

See Lawrence R. Liebesman & Steven A.G. Davison,

Takings of Wildlife Under the Endangered Species Act After

Babbitt v. Sweet Home Chapter of Communities for a Great

Oregon, 5 UNIV. OF BALT. J. OF ENV’T L. (1995) (“Because a

majority of the Justices held that habitat modification only

violates the FWS regulation when it proximately causes death or

injury to members of a wildlife species protected under the Act,

lower courts are now required to resolve various issues involving

what constitutes ‘injury’ to a protected species.”) Id. at 137.

39 In Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996) the

noted that “other courts have held certain regulatory

acts resulted in ESA liability where a close connection

existed between the liable actor’s conduct and habitat

destruction or killing of endangered species.” Id at

659.40

The proximate causation/foreseeability principles

applied in Sweet Home and other cases are relevant to

determining the limits of CWA jurisdiction. Section

101 of the CWA has two clear goals (1) to “restore and

maintain the chemical, physical, and biological

integrity of the Nation’s water and (2) to “recognize,

preserve, and protect the primary responsibilities of

the states to prevent, reduce and eliminate pollution,

to plan the development and use of... land and water

resources and to consult with the Administrator…”

The CWA’s permit programs are the regulatory

vehicles to further the Act’s goals.

Proximate

Court affirmed that “proximate causation principles are generally

thought to be a necessary limitation on liability.” In Paroline v.

United States, 572 U.S. 434, 445 (2014) (“…a requirement of

proximate cause thus serves inter alia, to preclude liability in

situations where the causal link between conduct and result is so

attenuated that the consequence is more aptly described as mere

fortuity.”)

40 In Department of Transportation v. Public Citizen, 541

U.S. 752, 766 (2004), the Court applied similar principles under

the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§

4321 to 4370m-8 (2022). in the context of the agency's underlying

authority. In finding that NEPA did not require the Federal

Motor Carrier Safety Administration ("FMCSA") to consider the

environmental effects arising from the entry of Mexican trucks

as a result of the President's lifting or modification of the

moratorium against such entries, Court held that the “but for”

causation test was “insufficient” to establish” the requisite

causal link between a proposed agency action and possible

environmental effect.”

causation/foreseeability principles provide a useful

legal paradigm for imposing liability for actions

consistent with these goals. In fact, several post

SWANCC decisions lend support for this rationale. In

Rice v. Harken Exploration Co. 250 F.3d. 264, 272 (5th

Cir. 2001), in construing the CWA and Oil Pollution

Act’s41 “navigable waters” definitions as the same, the

court held that “the Rice’s have failed to produce

evidence of a close, direct, and proximate link

between…the discharges of oil and any resulting

actual, identifiable oil contamination…. of a

particular body of natural surface water.” (Emphasis

supplied.) In re Needham, 354 F.3d. 340 (5th Cir.

2003) followed Rice in holding that the definition of

“navigable waters,” to include all waters that have

any hydrological connection with a “navigable

water,” is “unsustainable under SWANCC.” Id. at

345.42

Specific application of these principles could

lead to differing conclusions. For example, the

likelihood of a foreseeable impact on a Traditionally

Navigable Water (“TNW”) is higher when considering

the discharge of a liquid waste stream from an

industrial plant than the discharge into the same

wetland of mere fill material. The same limiting

principles could also apply in determining if

discharges to similarly situated wetlands adjacent to

the relevant reach of the same intermittent stream

Oil Pollution Act, 33 U.S.C. §§ 2701-2762 (2022).

FD & P Enterprises v. U.S. Army Corps of Eng’rs, 239 F.

Supp. 2d. 509, 517 (2003) (after SWANCC “the hydrologic

connections test is no longer the valid mode of analysis.” The

Corps must demonstrate evidence of “substantial injurious

impact” to a navigable water.

would impair the TNW’s water quality in order

determine the cumulative effect of all such discharges.

The Court’s recent decision in County of Maui v.

Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020) does not

preclude the use of proximate causation/foreseeability

principles to wetlands. The Court held that that

discharges from a point source into groundwater that

eventually reaches a navigable water must be

functionally equivalent to a direct discharge into

surface water and set our seven criteria to be applied.

The Court’s only rejected the use of proximate

causation because it did not “significantly narrow”

whether a discharge into groundwater that eventually

makes its way to a navigable water was “fairly

traceable.” Unlike the narrow question of traceability

of a specific pollutant in Maui, applying proximate

causation to discharges into a wetland will address

whether there is sufficient evidence to demonstrate

that impacts to a wetland adjacent to a tributary will

foreseeably impair the water quality of the

downstream TNW. Such an analysis does not require

tracing the path of a specific pollutant. Rather it

involves looking at the relationship of the functions of

the wetland at issue to the functions of the

downstream navigable waters. If the relationship is

too tenuous and remote, then no liability should

attach for discharges to the wetland.

Should

the

Court

adopt

proximate

causation/foreseeability principles, Amici submit that

the Court should remand the issue to the Corps and

the EPA to develop appropriate regulations rather

than laying out criteria similar to Maui. Unlike Maui

where the Court’s factors provided guidance regarding

the potential impacts of specific pollutants traveling

through groundwater, applying proximate causation

principles to wetland impacts involves a broader

analysis regarding whether the discharges into a

wetland remote from a downstream water would

impair the functions of that water.

THE

SIGNIFICANT

NEXUS

TEST

VIOLATES

THE

FUNDAMENTAL

PRINCIPLES OF FEDERALISM

This Court in SWANCC recognized that the

Courts should be hesitant to intrude upon the delicate

balance between federal and state regulation of land

and water resources absent a “clear statement from

Congress that such a result was intended.” SWANNC,

531 U.S. at 174. One of the principal tenets of

federalism is that Courts shall not interpret federal

legislation to abrogate local power unless it is clear

that Congress considered and intended, when it

passed the authorizing legislation, to alter the

traditional balance between federal and state

powers. This “clear statement” principle applies “in

cases implicating Congress's historical reluctance

to trench on state legislative prerogatives or to

enter into spheres already occupied by the States.”

United States v. Lopez, 514 U.S. 549, 606 (1995)

(Souter, J., dissenting) (citation omitted). In cases

where a Court seeks to invoke the outer limits of

Congress's power, there must be a clear indication

that Congress intended that result. SWANCC, 531

U.S. at 172. Indeed, this Court has recognized that

there is an underlying assumption that the power

to legislate in areas traditionally regulated by the

States “is an extraordinary power… [that] Congress

does not exercise lightly.” Gregory v. Ashcroft, 501

U.S. 452, 460 (1991). “[U]nless Congress conveys

its purpose clearly, it will not be deemed to have

significantly changed the federal-state balance.”

United States v. Bass, 404 U.S. 336, 349 (1971).

Clearly, in enacting the CWA, Congress never

intended to impinge on the traditional and primary

power of state and local governments over land and

water uses expressly preserved under CWA Section

1251(g).43 Adoption of the significant nexus test

would result in an unprecedentedly broad

interpretation of the geographic scope of CWA

jurisdiction. As held in SWANCC, the Courts

should be hesitant to intrude upon the delicate

balance between federal and state regulation of

land and water resources absent a “clear statement

from Congress” that such a result was intended.

SWANNC, 531 U.S. at 174. Under the “clear

statement” principle, Courts must not simply

assume that Congress has used its power to

override state authority. SWANCC 531 U.S. at 17273. Rather, “unless Congress conveys its purpose

clearly, it will not be deemed to have significantly

changed the federal-state balance.” United States

v. Bass, 404 U.S. 336, 349 (1971). Mere ambiguity

will not suffice to demonstrate that Congress

intended to intrude into state interests. Gregory,

501 U.S. at 464.

Nothing in the plain language of the CWA

approaches a “clear statement” from Congress that it

33 U.S.C. § 1251(g) (2022). This Court has recognized that

“the regulation of land use is perhaps the quintessential state

activity.” FERC v. Miss., 456 U.S. 742, 767 n.30 (1980).

intended CWA jurisdiction to extend to every

intrastate wetland with any sort of hydrological

connection to navigable waters, no matter how

tenuous or remote. Indeed, Sections 101 (a) and (b)

of the CWA must be read together so that Section

101(a)

goals

not

override

primary

responsibilities of states under Section 101(b).

United States v, Mills, 850 F.3d. 693, 698 (4th Cir.

2017). The adoption of the significant nexus test

would violate the “cooperative federalism” inherent

in the Act as inconsistent with 101(b) that

specifically limits the authority of federal agencies

to intrude into state and local matters. The

wetlands that the Ninth Circuit would have regulated

under significant nexus are more properly addressed

under state and local laws, policies, and regulations.44

This careful balance between state and federal power

should not be upset.

CONCLUSION

Amici respectfully request this Court to

reverse the Ninth Circuit, reject the significant

nexus test, and provide clear limiting principles

in determining the reach of jurisdiction over

wetlands under the Clean Water Act.

44 As this Court recently stated in Maui “the structure of the

statute (CWA) indicates that, as to groundwater pollution and

non-point source pollution, Congress intended to leave

substantial responsibility and autonomy to the States.” Maui,

140 S.Ct. at 1471.

Respectfully Submitted,