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

No. 21-454

IN THE

Supreme Court of the United States

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; MICHAEL S. REGAN, ADMINISTRATOR,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

CONGRESSIONAL WESTERN CAUCUS MEMBERS

IN SUPPORT OF PETITIONERS

TYLER R. GREEN

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

ADMINISTRATIVE LAW CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tyler@consovoymccarthy.com

April 14, 2022

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................ 2

ARGUMENT ................................................................4

I.

An expansive reading of the Clean Water

Act hinders

environmental

protection

by interfering with state, local, and private

action .....................................................................4

A. Environmental federalism is important in

our sprawling nation ......................................4

B. States and localities are best suited to

advance environmental protection.................8

II. The Clean Water Act’s legislative history

provides more evidence of original public

meaning confirming that occasionally soggy

inland properties do not constitute “waters of

the United States.” ..............................................13

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Cases

Alden v. Maine,

527 U.S. 706 (1999) .................................................. 4

Arkansas v. Oklahoma,

503 U.S. 91 (1992) .................................................... 7

Gamble v. United States,

139 S. Ct. 1960 (2019) .............................................. 4

Oregon v. Ice,

555 U.S. 160 (2009) .................................................. 5

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) .......................................... 17, 18

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ................................................ 15

Statutes and Constitutions

33 U.S.C. §1251 ......................................................... 15

33 U.S.C. §1251(b) ....................................................... 6

33 U.S.C. §1311(a) ....................................................... 6

33 U.S.C. §1342(a) ....................................................... 6

33 U.S.C. §1342(b) ....................................................... 6

33 U.S.C. §407 (1899) ................................................ 14

Pub. L. 80-845, 62 Stat. 1155 (1948)................... 13, 14

Fla. Const. art. II, §7 ................................................... 9

Pa. Const. art. I, §27 .................................................... 9

R.I. Const. of 1842, art. I, §17 ..................................... 9

iii

Regulations

Exec. Order No. 11,574, 3 C.F.R., 1971 Comp.,

556-58 (1970) .......................................................... 14

33 C.F.R. §209.260(c) (1973) ..................................... 15

Other Authorities

117 Cong. Rec. 38,797 (1971) .................. 14, 15, 16, 17

118 Cong. Rec. 32,809 (1972) .............................. 16, 17

Jonathan H. Adler, Conservative Principles for

Environmental Reform, 23 Duke Envtl. L. &

Pol’y F. 253 (2013).................................................... 8

Jonathan H. Adler, Uncooperative Environmental

Federalism 2.0, 71 Hastings L.J. 1101

(2020) .................................................... 7, 8, 9, 10, 11

Robin Kundis Craig, Environmental Law

in Context (4th. ed. 2016) .................................... 6, 7

EPA, Ecoregions .......................................................... 5

EPA, Ecoregions of North America ............................. 5

Exec. Order No. 11,574.............................................. 15

Federalist No. 45 (Madison) ........................................ 4

Federalist No. 51 (Madison) .................................... 4, 5

Sarah Fox, Localizing Environmental Federalism,

54 U.C. Davis L. Rev. 133 (2020) ............................ 8

Hearing on Nomination of Attorney General

Pruitt

to

Be

Administrator

of

the

Environmental Protection Agency Before the S.

Comm. on Env’t & Pub. Works, 115th Cong. 20

(2017) ................................................................ 12, 13

iv

Oliver A. Houck, Cooperative Federalism,

Nutrients, and the Clean Water Act: Three Cases

Revisited, 44 Envtl. L. Rep. News & Analysis

10426 (2014) ............................................................. 7

Michael W. McConnell, Federalism: Evaluating

the Founders’ Design, 54 U. Chi. L. Rev. 1484

(1987) ........................................................................ 5

Isaiah McKinney, Note, “Navigable Waters” Does

Not Include Mud Puddles: The Clean Water

Act’s Legislative History Supports a Narrow,

Commercial-Focused Interpretation, 12 Wake

Forest J.L. & Pol’y (forthcoming 2022) ................. 17

Roger Meiners & Bruce Yandle, Common Law and

the Conceit of Modern Environmental Policy,

7 Geo. Mason L. Rev. 923 (1999) ..................... 11, 12

Mariannette Miller-Meeks & Dan Newhouse,

Opinion: Rural America Is Dedicated to Clean

Water, Des Moines Reg. (Apr. 14, 2021).................. 2

Press Release, Davis Critical of Biden Decision to

Restore Obama-Era WOTUS Regulation (Nov.

24, 2021) ................................................................... 3

Press Release, Newhouse Blasts District Court

Ruling on Navigable Waters Protection Rule

(Aug. 31, 2021) ....................................................... 13

Press Release, Newhouse Leads 201 Members in

Calling on the Biden Administration to Drop

WOTUS Expansion (Mar. 14, 2022) ...................... 18

Press Release, Newhouse, Miller-Meeks Respond

to SCOTUS Announcement on “Waters of the

United States” (Jan. 25, 2022)................................. 3

v

Press Release, Western Caucus Members Speak

Out Against Biden’s Return to Obama-Era

WOTUS Definition (Nov. 19, 2021) ............... 6, 8, 12

Press Release, What They Are Saying: We Must

Maintain the Navigable Waters Protection Rule

(Apr. 15, 2021) .......................................................... 3

Erin

Ryan,

Negotiating

Environmental

Federalism: Dynamic Federalism as a Strategy

for Good Governance, 2017 Wis. L. Rev. Forward

17 (2017) ......................................................... 5, 9, 11

William W. Sapp, et. al., From the Fields of

Runnymede to the Waters of the United States: A

Historical Review of the Clean Water Act and the

Term “Navigable Waters”, 36 Envtl. L. Rep.

10190 (2006) ..................................................... 14, 15

Damien Schiff, Keeping the Clean Water Act

Cooperatertively Federal—Or, Why the Clean

Water Act Does Not Directly Regulate

Groundwater Pollution, 42 Wm. & Mary Envtl.

L. & Pol’y Rev. 447 (2018) ............................... 11, 12

Senate and Congressional Western Caucuses,

Western Conservation Principles: An Alternative

Proposal to Conserve and Restore America’s

Landscapes, (Oct. 5, 2021) ................................. 8, 12

Jeffrey S. Sutton, et al., State Constitutional Law

(3rd ed. 2020) ........................................................... 9

1

INTEREST OF AMICI CURIAE 1

Amici curiae are Dan Newhouse (WA-04),

Mariannette Miller-Meeks (IA-02), and Rodney Davis

(IL-13)—Members of the House of Representatives

and the Congressional Western Caucus who are

committed to conservation, protecting private

property, and land-use rights guaranteed by the

Constitution. If allowed to stand, the Ninth Circuit’s

decision will harm each of those interests. It will allow

a federal agency to make every puddle, ditch, and

creek in the United States subject to overbearing

regulation. This Court should reject that outcome as

inconsistent with the relevant statutory text and

reverse the decision below.

Under this Court’s Rule 37.6, counsel for amici curiae

certify that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than

amici curiae or its counsel has made a monetary contribution to

the preparation or submission of this brief. The parties have

consented to its filing.

1

2

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

“Water is one of our most precious natural

resources. Whether for drinking, farming, or fishing,

clean water is a national priority, and future

generations depend on us doing our part to preserve

and protect bodies of water throughout the United

States.” Mariannette Miller-Meeks & Dan Newhouse,

Opinion: Rural America Is Dedicated to Clean Water,

Des Moines Reg. (Apr. 14, 2021), bit.ly/36Xk1nA.

Amici stand committed to its protection.

Even so, “[c]onfusion, unpredictability, and

litigation have surrounded the scope of federal

authority of our nation’s navigable waterways for

decades.” Letter from Members of Congress to Michael

Regan, EPA Administrator (Mar. 8, 2022). This case

proves the point. The Sacketts’ Idaho property has “no

surface water connection to any body of water,” Pet. i,

yet for more than a decade, the EPA has prevented the

Sacketts from building on it because the agency has

deemed it a “navigable water” subject to the Clean

Water Act’s permitting process.

Amici highlight two of the countless reasons that’s

wrong. First, an expansive reading of the Clean Water

Act (CWA) hinders environmental protection by

interfering with state, local, and private action. The

CWA makes environmental federalism a key aspect of

protecting our sprawling nation’s waters, but the

EPA’s expansive reading of the CWA undermines the

role of states and localities in localized conservation

efforts. Amici “understand that just because a body of

water isn’t under federal jurisdiction doesn’t mean

3

there isn’t effective, active water management and

protection happening at the state, local, and

individual levels,” and amici believe that “[w]e cannot

and should not discount these efforts; instead, we

should empower our local conservation efforts to

continue promoting clean water for future

generations.” Press Release, Newhouse, Miller-Meeks

Respond to SCOTUS Announcement on “Waters of the

United States” (Jan. 25, 2022), bit.ly/3LQN7ns.

Indeed, amici know that “local communities are

capable of making land use and water decisions far

better than a bureaucrat thousands of miles away.”

Press Release, What They Are Saying: We Must

Maintain the Navigable Waters Protection Rule (Apr.

15, 2021), bit.ly/3xc8knI (statement of Western

Caucus Chairman Dan Newhouse (WA-04)). And

allowing EPA to employ its expansive definition of

“waters of the United States” allows the federal

government to “turn[] [its] back on farmers and rural

America.” Press Release, Davis Critical of Biden

Decision to Restore Obama-Era WOTUS Regulation

(Nov. 24, 2021), bit.ly/3v5redj.

Second, the Clean Water Act’s history confirms

what its text makes clear: Congress did not give the

EPA power to regulate land like the Sacketts’ under

the Act’s permit provisions. The enacting Congress

understood the phrase “waters of the United States”

to refer to bodies of water used in a commercial

context, principally connected with interstate

commerce. Such waters do not include bodies

incapable of commercial utility, such those near the

Sacketts’ property. “Waters of the United States”

4

simply cannot bear EPA’s preferred expansive

interpretation.

The Court should reverse the decision below.

ARGUMENT

I. An expansive reading of the Clean Water Act

hinders

environmental

protection

by

interfering with state, local, and private

action.

A. Environmental federalism is important in

our sprawling nation.

In fashioning the Constitution, the Founders “split

the atom of sovereignty.” Gamble v. United States, 139

S. Ct. 1960, 1968 (2019) (quoting Alden v. Maine, 527

U.S. 706, 751 (1999)). While the powers of the new

federal government would be “few and defined,” those

retained by the states would be “numerous and

indefinite … extend[ing] to all the objects which, in

the ordinary course of affairs, concern the lives,

liberties, and properties of the people, and the internal

order, improvement, and prosperity of the State.”

Federalist No. 45 (Madison).

This structure was not an aesthetic choice.

Deliberately diffusing power to the lowest practical

level would allow the multifarious interests spanning

our “extended republic” to thrive without devolving

into tyrannical factions. See Federalist No. 51

(Madison). As James Madison put it: “society itself

w[ould] be broken into so many parts, interests and

classes of citizens, that the rights of individuals, or of

the minority, will be in little danger from interested

5

combinations of the majority.” Id. On top of that,

states and localities would serve as “laboratories for

devising solutions to difficult [] problems.” Oregon v.

Ice, 555 U.S. 160, 171 (2009). In this federal scheme,

leaving policy choices to more responsive state and

local governments would allow for more effective,

tailored solutions, and more efficient action. See

Michael W. McConnell, Federalism: Evaluating the

Founders’ Design, 54 U. Chi. L. Rev. 1484, 1493-94

(1987).

Environmental law “uniquely showcases the need

for … federalism.” Erin Ryan, Negotiating

Environmental Federalism: Dynamic Federalism as a

Strategy for Good Governance, 2017 Wis. L. Rev.

Forward 17, 20 (2017). Solutions to environmental

problems are “completely contingent on the

landscape” of specific areas. Id. at 23. And lands and

ecosystems across the nation vary greatly. See id. at

23. The U.S. is comprised of twelve different, broad

(level I) ecological regions, including temperate

forests, deserts, tropical wet forests, tundra, great

plains, sierras, semi-arid highlands, and forested

mountains. EPA, Ecoregions of North America,

bit.ly/3KzP336 (last visited Apr. 7, 2022); EPA,

Ecoregions, bit.ly/38vl91X (last visited Apr. 7, 2022).

Given those vastly different ecosystems, what makes

good policy for an environmental issue in Alaska is

unlikely to work for issues in Florida or Arizona. See

generally Ryan, supra, at 23-24. And some states

contain numerous ecological regions within them. See

Ecoregions of North America, supra. Texas, for

example, is comprised of North American desert, great

plains, and eastern temperate forests. Id. Simply put,

6

the incredible ecological variety throughout the nation

makes one-size-fits-all national environmental

regulation unworkable.

The Clean Water Act is no exception. A uniform

approach to water management simply “doesn’t work.”

Press Release, Western Caucus Members Speak Out

Against Biden’s Return to Obama-Era WOTUS

Definition (Nov. 19, 2021), bit.ly/3KjBQM3. As one

Member of Congress explained, “[h]ow Arizona

handles rainfall or water is different than Louisiana

as we also take on water from 31 states and two

Canadian provinces.” Id. Recognizing that the vast

differences between states and even local communities

must play an important role in making certain land

and water decisions, the Clean Water Act includes

federalism provisions. See, e.g., 33 U.S.C. §1251(b). In

the CWA, Congress explicitly recognized that it is the

“primary responsibilit[y] and right[] of States to

prevent, reduce, and eliminate pollution, to plan the

development and use (including restoration,

preservation, and enhancement) of land and water

resources.” Id.

Other sections of the CWA promote federalism too.

For example, §1311(a) prohibits individuals from

discharging pollutants without a permit, including a

National Pollutant Discharge Elimination System

(NPDES) permit. While the EPA Administrator has

the authority to issue NPDES permits, see 33 U.S.C.

§1342(a), “states may apply to the EPA for authority

to issue such permits to the dischargers within their

borders,” Robin Kundis Craig, Environmental Law in

Context 948 (4th. ed. 2016) (citing 33 U.S.C. §1342(b)).

7

Not only does the CWA express “a clear preference

that states take over the NPDES permit program,”

Craig, supra, at 949, but the EPA has “applauded the

states’ role in the permitting process,” id. at 1115. In

its 2001 strategic plan for the CWA, the EPA stated:

“[a] state’s authorization to implement this program

allows state managers to set priorities and tailor the

program to meet the challenges facing the waters in

that state and to satisfy the desires of its citizens. …

As ‘co-regulators,’ the authorized states play a unique

role by helping to shape and develop the national

program.” Id.

But while “[t]he Clean Water Act anticipates a

partnership between the States and the Federal

Government,” Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992), that partnership is heavily weighted

toward federal power. See, e.g., Oliver A. Houck,

Cooperative Federalism, Nutrients, and the Clean

Water Act: Three Cases Revisited, 44 Envtl. L. Rep.

News & Analysis 10426, 10428-29 (2014). Like other

environmental statutes and their implementing

regulations,

the

CWA

“centralize[s]

much

environmental policy decision-making, including

decision-making concerning distinctly local matters.”

Jonathan H. Adler, Uncooperative Environmental

Federalism 2.0, 71 Hastings L.J. 1101, 1107 (2020). As

demonstrated by the EPA’s Waters of the United

States (WOTUS) Rule at issue here, the “federal

government does too much, and crowds out the

opportunity for state governments and local

communities to pursue their own environmental

priorities.” Id. “Distinctly local priorities, such as the

management of local resources or land use, get

8

subsumed by federal regulatory edicts.” Id. As a

result, regulations like WOTUS end up “giv[ing] the

federal government jurisdiction over people’s yards

and businesses.” Press Release, Western Caucus

Members Speak Out Against Biden’s Return to

Obama-Era WOTUS Definition (Nov. 19, 2021),

bit.ly/3KjBQM3.

B. States and localities are best suited to

advance environmental protection.

Environmental protection and conservation

remain core, traditional areas of state and local

regulation. Indeed, “[s]tate power has historically

been at its strongest when talking about local control

over land use and property rights.” Sarah Fox,

Localizing Environmental Federalism, 54 U.C. Davis

L. Rev. 133, 157 (2020). That makes sense since

problems

of

environmental

protection

and

concentration are intrinsically bound up in specific

waters and lands within the states. See supra, §I.A;

see also Jonathan H. Adler, Conservative Principles for

Environmental Reform, 23 Duke Envtl. L. & Pol’y F.

253, 278-80 (2013). For the Americans who live on

those lands, and who rely on those waters,

conservation is a way of life. “Those who are closest to

the land—whose quality and way of life depend upon

healthy ecosystems—care most about the land and

know best how to maintain its legacy, conservation,

and uses for years to come.” Senate and Congressional

Western Caucuses, Western Conservation Principles:

An Alternative Proposal to Conserve and Restore

America’s Landscapes, (Oct. 5, 2021), bit.ly/3ukBzTb.

9

Maintaining clean air and water matters to states

and localities. Forty-six states have specific

environmental provisions in their state constitutions,

ranging from general resource conservation goals to

individual rights to a healthy environment. See

Jeffrey S. Sutton, et al., State Constitutional Law 68995 (3rd ed. 2020). Pennsylvania’s Environmental

Rights Amendment, for example, secures to its

citizens the “right to clean air, pure water, and to the

preservation of the natural, scenic, historic and

esthetic values of the environment.” Pa. Const. art. I,

§27. Florida dedicates an entire section of its

Constitution to conservation, leading with the

sweeping declaration that it is “the policy of the state

to conserve and protect its natural resources and

scenic beauty.” Fla. Const. art. II, §7. And as far back

as 1842, the Rhode Island Constitution extended

protections to “all the rights of fishery, and the

privileges of the shore.” R.I. Const. of 1842, art. I, §17.

Amici and the citizens they represent work closely

with their communities and local representatives to

care for the lands in their communities. Indeed, all

“Americans share a hallowed understanding that

regulating land use is among the most sacred of local

prerogatives—part of the very backbone of the police

power to protect public health and safety.” Ryan,

supra, at 22.

Despite all those state efforts, “local policy choices”

are

often

“made

in

Washington

D.C.”

Adler, Uncooperative Environmental Federalism 2.0,

supra, at 1107-08. “Federal environmental statutes

and regulations govern many matters for which the

costs and consequences of environmental policy

10

decisions are localized.” Id. Such “federal primacy,”

however, is unsupported. Id. Indeed, because the costs

and benefits of most environmental policy choices are

“known and confined to a given political jurisdiction,

there is little reason to believe that transferring

responsibility for making such choices to Washington,

D.C. will produce systematically better results.” Id. In

fact, “federal policy decisions concerning localized

problems” might “be worse than those made by state

and local officials.” Id. As one scholar explained:

Localized knowledge is difficult to

accumulate and deploy from a centralized

administrative agency. Regional differences

mean that federal policies will often fail to

account for local particulars. As a

consequence, uniform policies are likely to

be over-protective in some areas, and

under-protective in others. A policy that

effectively reduces air pollution in one part

of the country, such as New York City or

Atlanta, may not work as well in parts of

the country with different mixes of

pollution sources, different topography, and

a different climate. Further, the likelihood

that “one size fits all” federal policies

operate as “one size fits nobody” will only

increase over time, as environmental

measures experience diminishing marginal

returns and regional variation becomes

more important on the margin.

Id.

11

Vastly different areas of land require “wholly

different” sets of “expertise and management

strategies.” See generally, Ryan, supra, at 24.

Managing water pollution in a certain area requires

decisionmakers to know, among other things, “the

contours of the land, the elevation, the precipitation,

seasonal weather patterns, prevailing winds,

watershed, soil quality, habitat, population density,

zoning laws, cultural uses, local economies, where the

local industry is operating at any given time, [and]

what the major stressors are in that particular area.”

See id. And decision makers must make choices that

“necessarily implicate normative concerns that are

beyond any scientific or technical analysis.”

Adler, Uncooperative Environmental Federalism 2.0,

supra, at 1108. Those choices often involve “subjective

value preferences about how to prioritize competing

goods when resources are scarce.” Id. Individuals on

the ground in specific areas are best suited to tailor

those decisions to state or community needs.

Such local and tailored policymaking often

generates better outcomes. Scholars have observed

that “[t]he common law, combined with various statelevel controls, was doing a better job addressing most

environmental

problems”

than

the

federal

government, “which directed most environmental

policy for the last part of this century.” Roger Meiners

& Bruce Yandle, Common Law and the Conceit of

Modern Environmental Policy, 7 Geo. Mason L. Rev.

923, 925 (1999); see also Damien Schiff, Keeping the

Clean Water Act Cooperatertively Federal—Or, Why

the Clean Water Act Does Not Directly Regulate

Groundwater Pollution, 42 Wm. & Mary Envtl. L. &

12

Pol’y Rev. 447, 448 n.6 (2018) (collecting examples). In

short, America’s race down the “track of central

environmental

planning

is

incompatible

with … environmental protection itself.” Meiners &

Yandle, supra, at 925.

It is little wonder, then, that modern attempts at

nationwide environmental regulation have proven

ineffective. Years-long reviews, mountains of

paperwork, and unstable rules have raised

administrative costs and interfered with private

property rights in the pursuit of positive

environmental outcomes. Worse yet, these impositions

often result in “detrimental impacts on the

surrounding ecosystem.” Senate and Congressional

Western Caucuses, Western Conservation Principles.

Shifting agency interpretations are “devastating to

farmers, ranchers, builders, and the other industries

in America that depend on a stable WOTUS rule

structure.” Press Release, Western Caucus Members

Speak Out Against Biden’s Return to Obama-Era

WOTUS Definition (Nov. 19, 2021), bit.ly/3KjBQM3.

Continued federal expansion into environmental

protection and conservation will box out and preempt

more effective, responsive state and local efforts.

At bottom, states “remain our nation’s frontline

environmental implementers and enforcers.” Hearing

on Nomination of Attorney General Pruitt to Be

Administrator of the Environmental Protection

Agency Before the S. Comm. on Env’t & Pub. Works,

115th Cong. 20 (2017) (opening statement of Scott

Pruitt). But the decision below “greatly limits [states

and local landowners’] ability to support existing,

13

sustainable efforts to protect the nation’s waterways.”

Press Release, Newhouse Blasts District Court Ruling

on Navigable Waters Protection Rule (Aug. 31, 2021),

bit.ly/3jcXjds. “If we truly want to advance and

achieve cleaner air and water the States must be

partners and not mere passive instruments of federal

will.” Hearing, supra.

II. The Clean Water Act’s legislative history

provides more evidence of original public

meaning confirming that occasionally soggy

inland properties do not constitute “waters

of the United States.”

From enacting the Clean Water Act’s precursor in

1948 to the debates surrounding the 1972

amendments that gave us today’s operative CWA text,

every relevant congressional action confirms what the

Clean Water Act’s text makes clear: the original public

meaning of “waters of the United States” cannot bear

EPA’s preferred expansive interpretation, and the

Sacketts’ soggy inland property is not a “water[] of the

United States.”

*

*

*

Congress enacted the Federal Water Pollution

Control Act of 1948 (WPCA) to empower and support

States “in the formulation and execution of their

stream pollution abatement programs.” Pub. L. 80845, 62 Stat. 1155 §2 (1948). Although the Act was the

first major federal statute to regulate pollution in

American waterways, it was not primarily a

regulatory enforcement regime. Rather, it “did little

more than provide technical assistance and financial

14

aid to help the states deal with their growing water

pollution problem.” William W. Sapp, et. al., From the

Fields of Runnymede to the Waters of the United

States: A Historical Review of the Clean Water Act and

the Term “Navigable Waters”, 36 Envtl. L. Rep. 10190,

10197 (2006). And the WPCA’s scope was limited:

federal abatement efforts were circumscribed to

“interstate waters” and “tributar[ies] of such waters.”

Pub. L. 80-845 §2(d)(1).

In time, Congress decided that the WPCA failed to

address the nation’s pervasive water pollution

problem. Even until the early 1970s, rivers like the

Potomac still teemed with raw sewage, and coastal

wildlife and resources still sustained heavy losses

from pollution discharges and spills. See 117 Cong.

Rec. 38,797-98 (1971) (statement of Sen. Muskie).

Without an adequate remedial regime in the

WPCA, federal agencies fashioned a pollution permit

program under the Refuse Act of 1899. The Refuse Act

prohibited discharging “any refuse matter of any kind

... into any navigable water of the United States, or

into any tributary of any navigable water” without a

permit. Refuse Act of 1899 §13, 33 U.S.C. §407 (1899).

In December 1970, President Richard Nixon charged

the Secretary of the Army and the Administrator of

the EPA with “implement[ing] a permit program

under the [Refuse Act] to regulate the discharge of

pollutants and other refuse matter into the navigable

waters of the United States and their tributaries.”

Exec. Order No. 11,574, 3 C.F.R., 1971 Comp., 556-58

(1970). About a month before Congress passed the

1972 CWA amendments, the Army Corps of Engineers

15

issued its final version of the Refuse Act regulations,

updating the agency’s jurisdictional reach to the

“navigable waters of the United States,” Sapp, supra,

at 10200, which the Corps defined as “waters which

are presently, or have been in the past, or may be in

the future susceptible for use for purposes of interstate

or foreign commerce.” 33 C.F.R. §209.260(c) (1973).

Combining the WPCA’s remedial aim and the

efficacy of the Refuse Act’s permitting regulations,

Congress proposed the 1972 CWA amendments.

Among other things, the amendments implemented

the modern pollution and fill permit program under

section 404 of the Act, grafting the Refuse Act permit

program into the WPCA’s framework of cooperative

federalism. See 117 Cong. Rec. 38,836 (statement of

Sen. Muskie) (“In the bill, we codified [direct

enforcement] authority in order to reestablish a

balance between State and Federal authority.”). The

CWA was Congress’s attempt “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” Clean Water Act of 1972 §101, 33

U.S.C. §1251; see United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 132 (1985). To effectuate

that purpose, Congress altered the jurisdictional scope

of the WPCA, replacing “interstate waters and

tributaries thereof” with “navigable waters,” which

Congress defined as “waters of the United States,

including the territorial seas.”

Just as it borrowed the Refuse Act regulations’

terminology, Congress sought to give the CWA a

similar scope. The term “navigable water” and its

definition, “waters of the United States,” was inserted

16

into the CWA in the conference committee. 118 Cong.

Rec. 32,809 (1972). The conferees agreed that “the

term navigable waters be given the broadest possible

constitutional interpretation.” Id. at 33,757. Both

Senator Muskie, the CWA’s Senate manager, and

Representative Dingell, the CWA’s House manager,

introduced the conference report to their respective

chambers and reiterated that intended construction.

Senator Muskie characterized the conference

committee’s intent that the CWA would reach not only

waters that are navigable in fact but also those that

“form … with other waters or other systems of

transportation … a continuing highway over which

commerce is or may be carried on with other states.”

Id. at 33,699 (statement of Sen. Muskie).

Representative Dingell similarly stated, “[T]here is no

requirement in the Constitution that the waterway

must cross a State boundary in order to be within the

interstate commerce power of the Federal

Government. Rather, it is enough that the waterway

serves as a link in the chain of commerce among the

States.” Id. at. 33,757 (statement of Rep. Dingell).

Even when showing Congress’s intent to exercise

the fullest extent of its commerce power over

intrastate waters, Congress’s discussion of the kinds

of waters was notably constrained to actual bodies of

water. Senator Muskie referred to “lakes, streams,

rivers, and oceans,” Id. at 33,692, and Representative

Dingell referred to “all water bodies, including main

streams and their tributaries,” Id. at 33,757. Other

supporters of the amendments used similar terms.

Senator Mondale decried the neglect of the “rivers and

lakes of America.” 117 Cong. Rec. 38,834. Discussing

17

the ill of pollution in “navigable waters,” Senator

Humphrey referred to “rivers,” “coastal water,” and

“lakes, small and large.” Id. at 38,835. And Senator

Moss stated that the CWA “set[] a goal of eliminating

all discharges into our Nation’s waterways” with an

interim goal of “making our streams and lakes

‘swimmable.’” Id. at 38,837.

In short, during the debates on the 1972 CWA

amendments, Congress overwhelmingly referred to

distinct bodies of water—seas, oceans, lakes, and

waterways. Those are the kinds of bodies of water that

Congress intended to make the remedial subject of the

CWA.

This Court agreed with that assessment when it

concluded that, despite the conference report’s

“broadest possible constitutional interpretation,” 118

Cong. Rec. 33,757, “neither this, nor anything else in

the legislative history … signifies that Congress

intended to exert anything more than its commerce

power over navigation.” Solid Waste Agency of

Northern Cook County v. U.S. Army Corps of

Engineers (SWANCC), 531 U.S. 159, 168 n.3 (2001).

See also Isaiah McKinney, Note, “Navigable Waters”

Does Not Include Mud Puddles: The Clean Water Act’s

Legislative History Supports a Narrow, CommercialFocused Interpretation, 12 Wake Forest J.L. & Pol’y,

at 2 (forthcoming 2022).

So it is that by broadening the WPCA’s limited

application from “interstate waters” to “the waters of

the United States,” Congress intended only to extend

the Act’s reach to intrastate bodies of water and their

18

tributaries. Congress’s heavy emphasis on rivers,

lakes, and oceans further confirms that Congress did

not intend to depart from the geographic character of

bodies of water covered by previous remedial

enactments. Congress’s expansive interpretation may

have pushed the bounds of the Commerce Clause to

include intrastate waters, but it did not turn the

historical conception of “waters” into “mud pits.”

* * *

The Clean Water Act’s history confirms what its

text makes clear: Congress did not give the EPA power

to regulate land like the Sacketts’ under the Act’s

permit provisions. Instead, the enacting Congress

understood that term to refer to bodies of water used

in a commercial context, principally connected with

interstate commerce. See SWANCC, 531 U.S. at 168

n.3. Such waters do not include bodies incapable of

commercial utility.

Affirming the Ninth Circuit’s decision would

eviscerate any limit on the meaning of “navigable

waters.” Indeed, adopting the EPA’s argument would

render the word “navigable” a nullity. If allowed to

stand, the decision below will “empower[] federal

bureaucrats to place every single body of water—every

ditch, puddle, and stream—under federal regulation.”

Press Release, Newhouse Leads 201 Members in

Calling on the Biden Administration to Drop WOTUS

Expansion (Mar. 14, 2022) bit.ly/3KwUMXA. This

Court should decline its invitation to do so.

19

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

TYLER R. GREEN

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

ADMINISTRATIVE LAW CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tyler@consovoymccarthy.com

April 14, 2022

Counsel for Amici Curiae