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

FORESTRY ORGANIZATIONS

IN SUPPORT OF PETITIONERS

_____________

WILLIAM R. MURRAY

NATIONAL ALLIANCE OF

FOREST OWNERS

122 C St. N.W., #630

Washington, D.C.

20001

DAVID Y. CHUNG

Counsel of Record

ELIZABETH B. DAWSON

CROWELL & MORING LLP

1001 Pennsylvania Ave.,

N.W.,

Washington, D.C. 20004

(202) 624-2500

dchung@crowell.com

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

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

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT .............................................................. 8

I.

THE SIGNIFICANT NEXUS TEST

IMPERMISSIBLY ELEVATES ONE OF

THE CLEAN WATER ACT’S PURPOSES

OVER ITS TEXT AND STRUCTURE. ............. 8

II.

LOWER COURT DECISIONS AND

AGENCY INTERPRETATIONS HAVE

STEADILY

EXPANDED

THE

SIGNIFICANT NEXUS TEST TO THE

POINT OF NULLIFYING SWANCC. ............ 15

III. INTERPRETING

“NAVIGABLE

WATERS” TO INCLUDE ANY WATER

FEATURE

CONNECTED

TO

A

“NAVIGABLE

WATER”

IS

UNNECESSARY TO PROTECT WATER

QUALITY. ........................................................ 23

A. The CWA’s Discharge Prohibition And

Regulatory Programs Ably Protect

“Navigable Waters” From Polluting

Activities Upstream. ................................. 24

B. Rigorous Governmental And Private

Sector Programs Effectively Protect

Water Quality In And Around Forested

Landscapes. ............................................... 27

ii

TABLE OF CONTENTS

(continued)

Page

CONCLUSION ......................................................... 33

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ................................................13

Badaracco v. Comm’r of Internal

Revenue,

464 U.S. 386 (1984) ................................................8

Bailey v. United States,

516 U.S. 137 (1995) ..............................................11

Benjamin v. Douglas Ridge Rifle Club,

673 F. Supp. 2d 1210 (D. Or. 2009) .....................15

Cnty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020)....................................23, 26

Coeur Alaska, Inc. v. Se. Alaska

Conservation Council,

557 U.S. 261 (2009) ..............................................25

Decker v. Nw. Env’t Def. Ctr.,

568 U.S. 597 (2013) .............................. 3, 25, 31, 33

Env’t Prot. Info. Ctr. v. Pac. Lumber

Co.,

469 F. Supp. 2d 803 (N.D. Cal. 2007)..................16

Jones v. United States,

529 U.S. 848 (2000) ..............................................11

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Nat’l Ass’n of Home Builders v. Defs. of

Wildlife,

551 U.S. 644 (2007) ..............................................12

New Orleans Gaslight Co. v. Drainage

Comm’n of New Orleans,

197 U.S. 453 (1905) ..............................................14

NLRB v. SW Gen., Inc.,

137 S. Ct. 929 (2017)............................................11

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

of Eng’rs,

633 F.3d 278 (4th Cir. 2011)................................17

Rapanos v. United States,

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

Ross v. Blake,

578 U.S. 632 (2016) ................................................8

S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians,

541 U.S. 95 (2004) ................................................26

S.F. Baykeeper v. Cargill Salt Div.,

481 F.3d 700 (9th Cir. 2007)................................15

Solid Waste Agency of Northern Cook

Country v. U.S. Army Corps of

Engineers (“SWANCC”),

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

v

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. HVI Cat Canyon, Inc.,

314 F. Supp. 3d 1049 (C.D. Cal.

2018) ...............................................................16, 17

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985) ............................................4, 8

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007)............................16

United States v. Vierstra,

803 F. Supp. 2d 1166 (D. Idaho

2011) .....................................................................16

Va. Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019)............................................9

Wis. Resources Prot. Council v.

Flambeau Min. Co.,

903 F. Supp. 2d 690 (W.D. Wisc.

2012) .....................................................................17

Statutes

7 U.S.C. § 136 et seq. .................................................29

16 U.S.C. § 1533(d)..............................................31, 32

33 U.S.C. § 1251(a)......................................................8

33 U.S.C. § 1251(b)....................................................13

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

33 U.S.C. § 1255(a)(1) ...............................................10

33 U.S.C. § 1255(b)....................................................10

33 U.S.C. § 1255(c) ....................................................10

33 U.S.C. § 1258(a)....................................................10

33 U.S.C. § 1270(e) ....................................................11

33 U.S.C. § 1270(f) ....................................................11

33 U.S.C. § 1270(g)(2) ...............................................11

33 U.S.C. § 1311(a)................................................9, 12

33 U.S.C. § 1342 ....................................................9, 25

33 U.S.C. § 1342(l) .....................................................3

33 U.S.C. § 1342(p)(6) ...............................................30

33 U.S.C. § 1344 ..........................................................9

33 U.S.C. § 1344(f) ......................................................3

33 U.S.C. § 1362(6)....................................................25

33 U.S.C. § 1362(14) ..................................................12

33 U.S.C. § 1362(19) ....................................................8

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Regulations

40 C.F.R. § 232.2 .................................................25, 26

Other Authorities

40 Fed. Reg. 31,320 (July 25, 1975)............................4

51 Fed. Reg. 41,206 (Nov. 13, 1986) ...........................4

80 Fed. Reg. 37,054 (June 29, 2015) ...................18, 19

81 Fed. Reg. 43,492 (July 5, 2016).................... passim

85 Fed. Reg. 22,250 (Apr. 21, 2020)..........................19

85 Fed. Reg. 61,614 (Sept. 30, 2020) ........................32

86 Fed. Reg. 30,688 (June 9, 2021)...........................32

86 Fed. Reg. 69,372 (Dec. 7, 2021)......................20, 23

Clean Water Act Jurisdiction Following

the U.S. Supreme Court’s Decision in

Rapanos v. United States & Carabell

v. United States (June 5, 2007) .....................17, 18

Draft Guidance on Identifying Waters

Protected by the Clean Water Act

(May 2, 2011) (“Draft Guidance”) ..................18, 19

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Erik B. Schilling, et al., Forestry Best

Management Practices and

Conservation of Aquatic Systems in

the Southeastern United States .....................27, 28

Gary S. Guzy & Robert M. Anderson,

Supreme Court Ruling Concerning

CWA Jurisdiction Over Isolated

Waters (Jan. 2001) .................................................5

Nat’l Ass’n of Counties, et al.,

Comments on Proposed Revised

Definition of “Waters of the United

States” (Feb. 7, 2022) ...........................................14

Sustainable Forestry Initiative, The

SFI 2022 Fiber Sourcing Standard .....................30

Technical Support Document for the

Proposed “Revised Definition of

‘Waters of the United States’” Rule

(Nov. 18, 2021) .....................................................21

U.S. EPA, Pesticide Permitting ................................29

USDA, Forest Service, National Best

Management Practices for Water

Quality Management on National

Forest System Lands (2012) ................................29

INTEREST OF AMICI CURIAE1

The National Alliance of Forest Owners (NAFO)

is a trade association that represents owners of over

47 million acres of private forests in 32 States. NAFO

was incorporated in March 2008, and it has worked

aggressively since then to sustain the ecological,

economic, and social values of forests, and to assure

an abundance of healthy and productive forest

resources for present and future generations.

The American Forest & Paper Association

(AF&PA) serves to advance a sustainable U.S. pulp,

paper, packaging, tissue, and wood products

manufacturing industry through fact-based public

policy and marketplace advocacy. AF&PA member

companies make products essential for everyday life

from renewable and recyclable resources and are

committed to continuous improvement through the

industry’s sustainability initiative, Better Practices,

Better Planet 2030. The forest products industry

accounts for approximately four percent of total U.S.

manufacturing GDP, manufactures close to $300

billion in products annually, and employs nearly

950,000 men and women.

The Forest Landowners Association (FLA)

represents private forestland stakeholders who own

and manage over 55 million acres nationwide—from

1 Pursuant to Rule 37.6, amici affirm that no part of this brief

was authored in whole or in part by counsel for any party, and

no person or entity has made any monetary contribution to the

preparation or submission of the brief other than amici curiae

and their counsel. All parties have consented to the filing of this

brief.

2

large, multi-generational forest businesses to

individual family landowners who view their forest as

a long-term investment. FLA is committed to

preserving America’s tradition of private forest

ownership, promoting the importance of forest

resources and sustainable forest management, and

securing a legacy that can be passed to the next

generation.

The Forest Resources Association is a trade

association that represents the entire wood supply

chain, focusing on the safe, efficient, and sustainable

harvest of forest products and their transport from

woods to mill. It represents more than 320

organizations and businesses in the forest products

industry, including forest landowners, suppliers,

consuming mills, associated businesses, and state

forestry associations.

Amici also include the following associations from

various forested regions nationwide: Alabama

Forestry Association, Arkansas Forestry Association,

Calforests, Empire State Forest Products Association,

Florida Forestry Association, Forestry Association of

South Carolina, Georgia Forestry Association, Idaho

Forest Owners Association, Louisiana Forestry

Association, Mississippi Forestry Association, New

Hampshire Timberland Owners Association, North

Carolina Forestry Association, Ohio Forestry

Association, Inc., Oregon Forest & Industries Council,

Pennsylvania

Forest

Products

Association,

Southeastern Lumber Manufacturers Association,

Tennessee Forestry Association, Texas Forestry

Association,

Washington

Forest

Protection

Association, and West Virginia Forestry Association.

3

Each of these organizations has members, including

companies, families, and individuals, that work on,

own, or manage forest lands in their respective

States. These organizations promote stewardship and

wise use of forest resources and are dedicated to forest

conservation and the sustainable use of natural

resources.

Amici have a substantial interest in the scope of

federal regulatory authority under the Clean Water

Act (CWA). Although many discharges resulting from

forestry activities are exempt from permitting under

CWA Sections 402(l) and 404(f), see 33 U.S.C. §§

1342(l) & 1344(f), forest owners must obtain a permit

from EPA or an authorized State under CWA Section

402 if, for instance, vegetation management to enable

regeneration involves discharges from a point source

to “navigable waters.”2 Furthermore, the forestry

industry has been a frequent target of CWA citizen

suits alleging that forestry activities involve

unpermitted discharges that are not covered by any of

the statutory exemptions. E.g., Decker v. Nw. Env’t

Def. Ctr., 568 U.S. 597 (2013) (unsuccessful citizen

suit seeking to require CWA permits for discharges of

channeled stormwater runoff from logging roads).

Regardless of their merit, such suits can take years to

resolve, are disruptive to forestry operations, and

place significant burdens on the resources of litigants,

federal agencies, and courts alike. Accordingly, amici

2 While several amicus AF&PA members own small amounts of

forested land, AF&PA members purchase fiber from landowners

and are concerned about potential increased fiber prices due to

unnecessary regulatory burdens. AF&PA members also hold

NPDES permits, but this brief focuses on the forest landowner

perspective.

4

have a strong interest in the establishment of

appropriate and predictable boundaries for federal

regulatory authority under the CWA.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Since 1975, the Government’s interpretations of

“navigable waters” have operated as a one-way

ratchet to expand federal regulatory authority under

the CWA. See Permits for Activities in Navigable

Waters or Ocean Waters, 40 Fed. Reg. 31,320, 31,32425 (July 25, 1975). Those interpretations reached this

Court on three occasions. Win or lose, the

Government responded the same way after each case:

turn the ratchet again.

After this Court held that the Corps has

jurisdiction over wetlands that abutted a navigable

waterway in United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985), the Corps broadened

its reading of the CWA by introducing the “Migratory

Bird Rule” in 1986. See 51 Fed. Reg. 41,206, 41,217

(Nov. 13, 1986). That rule extended the Government’s

jurisdiction to isolated, intrastate waters that are or

would be used as habitat by migratory birds. In Solid

Waste Agency of Northern Cook Country v. U.S. Army

Corps of Engineers (“SWANCC”), this Court explained

the “text of the statute will not allow” it “to hold that

the jurisdiction of the Corps extends to ponds that are

not adjacent to open water” and that the Migratory

Bird Rule impermissibly reads the term “navigable”

out of the Act, 531 U.S. 159, 168-72 (2001).

After SWANCC, the Government “did not

significantly revise its theory of federal jurisdiction.”

5

Rapanos v. United States, 547 U.S. 715, 726 (2006).

The Government continued to assert jurisdiction

“upstream to the highest reaches of the tributary

systems, and over all wetlands adjacent to any and all

of those waters.” Gary S. Guzy & Robert M. Anderson,

Supreme Court Ruling Concerning CWA Jurisdiction

Over Isolated Waters 7 (Jan. 2001).3 Those assertions

went largely unchecked by lower courts, which

affirmed “sweeping assertions of jurisdiction over

ephemeral channels and drains as ‘tributaries’” and

over wetlands with a “mere hydrologic connection” to

those so-called tributaries, no matter how

insubstantial the connection. Rapanos, 547 U.S. at

726, 728 & 740. A majority of this Court rejected the

agencies’ “mere hydrologic connection” theory in

Rapanos, though no single opinion was joined by five

justices.

After Rapanos, the Government expanded its

interpretation of the statutory phrase “navigable

waters” yet again. This latest and ongoing expansion

capitalizes on ambiguities in Justice Kennedy’s solo

concurrence, which described the “significant nexus”

test: “wetlands … come within the statutory phrase

‘navigable waters,’ if the wetlands, either alone or in

combination with similarly situated lands in the

region, significantly affect the chemical, physical, and

biological integrity of other covered waters more

readily understood as ‘navigable.’” 547 U.S. at 780

(emphasis added). By broadly construing the

italicized language and applying the test not only to

wetlands, but also to tributaries, the Government

3 https://www.epa.gov/sites/default/files/2017-

05/documents/2001_guidance_isolated_wetlands.pdf.

6

maintains that its CWA jurisdiction extends to the

highest reaches of the tributary system (including

ordinarily dry channels) and wetlands that are

relatively close to those “tributaries.” Furthermore,

even though SWANCC “specifically rejected the

argument that physically unconnected ponds could be

included based on their ecological connection to

covered waters,” id. at 754, the significant nexus test

frees the Government to once more claim jurisdiction

over geographically isolated waters.

This Court should reject the statutorily

unsupported significant nexus test, reverse the

decision below, and restore the limits on federal

regulatory authority set by Congress and this Court’s

precedent. The significant nexus test cannot be

squared with the CWA’s text and structure. Congress

used more inclusive terms and phrases such as

“watersheds,” “river basins,” and “any waters” in

various provisions of the Act that allow the Federal

Government to provide non-regulatory support for

state efforts to abate water pollution in all of the

Nation’s waters. By contrast, Congress limited the

exercise of federal regulatory authority to “navigable

waters.” The significant nexus test, however,

impermissibly rewrites the CWA and eliminates

those distinctions. It also undermines the Act’s

federalism-preserving structure by allowing the

Government to bring “virtually all planning of the

development and use of land and water resources by

the States under federal control.” Rapanos, 547 U.S.

at 737 (plurality).

This expansion of federal regulatory authority

under the significant nexus test is not theoretical.

7

Lower courts and the agencies tasked with

implementing the CWA—the Corps and the U.S.

Environmental Protection Agency (EPA)—have

applied that test in a way that stretches the definition

of “navigable waters” to include ephemeral streams

and man-made channels located many miles away

from the nearest traditional navigable water;

wetlands that are near, but that do not necessarily

abut, those waters; and even isolated waters.

Bringing such features within the statutory phrase

“navigable waters” based on ecological considerations

effectively reads the term “navigable” out of the CWA

and readjusts the federal-state balance contrary to

SWANCC, 531 U.S. at 171-74.

Finally, the significant nexus test rests on the

flawed rationale that wetlands and non-navigable

waters are themselves “navigable waters” if they

perform important functions related to the integrity

of “navigable waters in the traditional sense.” See

Rapanos, 547 U.S. at 779-80. Protecting the integrity

of traditional navigable waters does not depend on

federalizing countless other water features.

Moreover, the forestry sector provides empirical

evidence that an expansive reading of “navigable

waters” is unnecessary to protect water quality.

Regulatory and non-regulatory programs at all levels

of government, along with private sector initiatives,

have ensured widespread adoption of various best

management practices that have proven extremely

effective in protecting water resources, regardless of

whether such resources are “navigable waters” or

state waters.

8

ARGUMENT

I.

THE

SIGNIFICANT

NEXUS

TEST

IMPERMISSIBLY ELEVATES ONE OF THE

CLEAN WATER ACT’S PURPOSES OVER

ITS TEXT AND STRUCTURE.

The phrase “significant nexus” appears nowhere

in the CWA, but is instead “taken from SWANCC’s

cryptic characterization of the holding of Riverside

Bayview.” Rapanos, 547 U.S. at 755 (plurality). From

there, Justice Kennedy based his explication of that

phrase on the CWA’s “goals and purposes.” Id. at 779

(Kennedy, J., concurring). When the court below

applied “Justice Kennedy’s understanding of

‘significant nexus’ [as] the governing standard” in this

case, Cert. App. A-26, it did so at the expense of the

statute’s text and structure. Because the significant

nexus test “rewrites the statute,” this Court should

reverse. See Rapanos 547 U.S. at 756 (plurality); see

also Badaracco v. Comm’r of Internal Revenue, 464

U.S. 386, 398 (1984) (“Courts are not authorized to

rewrite a statute because they might deem its effects

susceptible of improvement.”).

1. As always, statutory interpretation “begins

with the text.” Ross v. Blake, 578 U.S. 632, 638 (2016).

Congress enacted the CWA to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance

of that objective, Congress created dozens of

regulatory and non-regulatory programs to control

“pollution” in all of the Nation’s waters. The Act

defines “pollution” broadly and in a way that mirrors

the statutory objective. Compare id. with 33 U.S.C. §

1362(19) (“‘pollution’ means the man-made or man-

9

induced alteration of the chemical, physical,

biological, and radiological integrity of water”).

One of the Act’s “principal provisions,” which

delineates the scope of federal regulatory authority, is

33 U.S.C. § 1311(a). Rapanos, 547 U.S. at 723

(plurality). That provision states that “the discharge

of any pollutant by any person shall be unlawful,”

except as in compliance with the Act’s discharge

permitting programs and related requirements. See

33 U.S.C. §§ 1311(a), 1342, 1344. Congress defined

“pollutant” more precisely than “pollution,” and it

defined “discharge of a pollutant” with reference to

“navigable waters,” rather than the “Nation’s waters”

generally. See id. §§ 1362(6) & (12). This limitation of

federal regulatory authority to “navigable waters”

was intentional. Indeed, “[i]t would have been an easy

matter for Congress to give the [Federal Government]

jurisdiction over all wetlands (or, for that matter, all

dry lands) that ‘significantly affect the chemical,

physical, and biological integrity of’ waters of the

United States[;]” Congress “did not do that, but

instead explicitly limited jurisdiction to ‘waters of the

United States.’” Rapanos, 547 U.S. at 756 (plurality).

Courts have a “duty to respect not only what Congress

wrote but, as importantly, what it didn’t write.” Va.

Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1900 (2019).

To be sure, Congress clearly knew how to refer to

more than just navigable waters by using broader or

more precise terms. And that is what it did when

constructing the Act’s comprehensive, non-regulatory

framework for supporting state efforts to prevent,

reduce, and eliminate pollution in all of the Nation’s

waters. For example, the Act authorizes EPA to:

10



“make grants to any State, municipality, or

intermunicipal or interstate agency for the

purpose of assisting in the development of

any project which will demonstrate a new or

improved method of preventing, reducing,

and eliminating the discharge into any

waters of pollutants from sewers which carry

storm water or both storm water and

pollutants” (33 U.S.C. § 1255(a)(1)

(emphasis added));



“make grants to any State or States or

interstate agency to demonstrate, in river

basins or portions thereof, advanced

treatment

and

environmental

enhancement techniques to control pollution

from all sources … [and] … for research and

demonstration projects for prevention of

pollution of any waters by industry,

including, but not limited to, the prevention,

reduction, and elimination of the discharge

of pollutants” (33 U.S.C. §§ 1255(b), (c)

(emphasis added));



enter into agreements with any State to

develop plans “for the elimination or control

of pollution, within all or any part of the

watersheds of the Great Lakes” (33 U.S.C. §

1258(a) (emphasis added));



“make grants to State, interstate, and

regional water pollution control agencies”

and public or nonprofit entities to help

develop and implement a “pollution

prevention, control, and restoration plan” for

the “Lake Champlain drainage basin,”

which means all or part of nearly twenty

11

counties in New York and Vermont “that

contain all of the streams, rivers, lakes, and

other bodies of waters, including wetlands,

that drain into Lake Champlain” (33 U.S.C.

§§ 1270(e), (f), (g)(2) (emphasis added)).

These and other non-regulatory provisions

advance the statutory objective of restoring the

integrity of all of the Nation’s waters. The exercise of

federal regulatory authority also furthers the Act’s

objective, but that authority is limited to “navigable

waters.” Nothing in the Act suggests that Congress,

when it used varying terms to refer to the Nation’s

waters or subsets thereof, “intended that they be

understood to be redundant.” Bailey v. United States,

516 U.S. 137, 146 (1995), superseded by statute on

other grounds as recognized in Welch v. United States,

578 U.S. 120, 133 (2016). Rather, the obvious

explanation is that “Congress used [different] terms

because it intended each term to have a particular,

nonsuperfluous meaning.” Id.; see also Jones v.

United States, 529 U.S. 848, 857 (2000) (rejecting the

Government’s “expansive interpretation” that would

give “the statute’s limiting language … no office”). A

broad reading of “navigable waters” that includes any

wetlands or water features that significantly affect

“navigable waters” undermines the distinctions that

Congress drew between “navigable waters” and other

categories of waters and risks rendering the term

“navigable” “devoid of significance.” Rapanos, 547

U.S. at 731 (plurality).

The significant nexus test also “makes a mess” of

the CWA’s definitional provisions by failing to give

effect to Congress’s distinction between “navigable

waters” and “point sources.” See NLRB v. SW Gen.,

12

Inc., 137 S. Ct. 929, 941 (2017). As the Rapanos

plurality found “[m]ost significant of all, the CWA

itself categorizes the channels and conduits”

“separately from ‘navigable waters,’ by including

them in the definition of ‘point source’.” Rapanos, 547

U.S. at 735 (plurality); see also 33 U.S.C. § 1362(14)

(defining “point source” as “any discernible, confined

and discrete conveyance, including but not limited to

any … ditch, channel, [or] conduit … from which

pollutants are or may be discharged”). Relatedly, the

CWA defines “discharge of a pollutant”—a term that

is central to the Act’s key regulatory mechanism, see

33 U.S.C. § 1311(a)—as “any addition of any pollutant

to navigable waters from any point source.” Id. §

1362(12)(A). This definition “would make little sense”

if a significant number of man-made ditches and

channels are deemed to be both point sources and

navigable waters. See Rapanos, 547 U.S. at 735

(plurality). The text therefore reflects that such

features “by and large” are not “waters of the United

States.” Id. at 736.

2. The CWA’s structure reinforces the conclusion

that Congress did not intend for the term “navigable

waters” to encompass every wetland or water feature

that significantly affects “navigable waters.” “It is a

fundamental canon of statutory construction that the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme.” Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 666 (2007) (internal quotation

marks and citation omitted). The significant nexus

test not only ignores Congress’s deliberate choice of

words, but also fails to account for the CWA’s explicit

policy to preserve “primary state responsibility for

13

ordinary land-use decisions.” See Rapanos, 547 U.S.

at 755-56 (plurality) (citing 33 U.S.C. § 1251(b)).

The CWA’s cooperative federalism scheme

“anticipates a partnership between the States and the

Federal Government[.]” Arkansas v. Oklahoma, 503

U.S. 91, 101 (1992). As discussed above, the Act

envisions a comprehensive approach to controlling

pollution in all waters: the Federal Government has

authority alongside States to address discharges of

pollutants to navigable waters, but in the rest of the

Nation’s waters, States are solely responsible for

controlling pollution, armed with technical guidance

and grant funding from the Federal Government.

When dividing authority this way, Congress

specifically reserved to States “the primary

responsibilities and rights … to prevent, reduce, and

eliminate pollution, to plan the development and use

(including

restoration,

preservation,

and

enhancement) of land and water resources, and to

consult with the Administrator in the exercise of his

authority under this chapter.” 33 U.S.C. § 1251(b).

Congress further stated that “[e]xcept as expressly

provided,” “nothing in this chapter shall … be

construed as impairing or in any manner affecting

any right or jurisdiction of the States with respect to

the waters (including boundary waters) of such

States.” Id. § 1370.

Treating wetlands, manmade drainage ditches,

and remote water features as “navigable waters”

because they (alone or in combination) significantly

affect waters that are navigable in the traditional

sense would be inconsistent with Congress’s careful

design and the federalism-preserving structure of the

CWA. Such a reading of the CWA threatens to bring

14

“virtually all ‘planning of the development and use of

land and water resources’ by the States under federal

control” and “‘result in a significant impingement of

the States’ traditional and primary power over land

and water use.’”4 Rapanos, 547 U.S. at 737-78

(plurality) (quoting SWANCC, 531 U.S. at 174).

Interpreting “navigable waters” to include

ditches would be especially intrusive of local

authority. Cf. New Orleans Gaslight Co. v. Drainage

Comm’n of New Orleans, 197 U.S. 453, 460 (1905)

(controlling drainage “is one of the most important

purposes for which the police power can be exercised”

by state and local governments). Local governments

typically construct, maintain, and manage ditches for

various beneficial uses, such as transportation and

flood control. See Nat’l Ass’n of Counties, et al.,

Comments on Proposed Revised Definition of “Waters

of the United States” 2 (Feb. 7, 2022) (“Counties …

own and manage many public safety ditches to funnel

water away from low-lying areas to prevent accidents

and flooding of homes and businesses[;] [f]ailure to

maintain ditches can result in flooding that leads to

property damage and loss of crops.”).5 If, however,

such ditches are “navigable waters” under the CWA,

States would need to establish water quality

standards applicable to those ditches (e.g.,

designating them for fishing and swimming uses and

4 Indeed, “[r]egulation of land use, as through the issuance of the

development permits” that the Federal Government maintains

the Sacketts must obtain under CWA section 404, “is a

quintessential state and local power.” Rapanos, 547 U.S. at 738

(plurality).

5 https://www.regulations.gov/comment/EPA-HQ-OW-2021-

0602-0427.

15

promulgating numeric or narrative water quality

criteria necessary to support those uses), and the

ditches would need to be managed accordingly.

Congress’s use of the phrase “waters of the United

States” is hardly the sort of “‘clear and manifest’”

statement that authorizes the Federal Government to

insert itself into the most routine local decisions over

how best to manage drainage. See Rapanos, 547 U.S.

at 738 (plurality) (quoting BFP v. Resol. Tr. Corp., 511

U.S. 531, 544 (1994)). Accordingly, the Court should

“read the statute as written to avoid the significant

constitutional and federalism questions raised by” the

ongoing application of the significant nexus test to

deem features like man-made ditches and channels

“navigable waters.” See SWANCC, 531 U.S. at 174.

II. LOWER COURT DECISIONS AND AGENCY

INTERPRETATIONS HAVE STEADILY

EXPANDED THE SIGNIFICANT NEXUS

TEST TO THE POINT OF NULLIFYING

SWANCC.

In the first few years following Rapanos, some

lower courts limited application of Justice Kennedy’s

significant nexus test to the wetlands context. E.g.,

S.F. Baykeeper v. Cargill Salt Div., 481 F.3d 700, 707

(9th Cir. 2007) (“No Justice, even in dictum,

addressed the question whether all waterbodies with

a significant nexus to navigable waters are covered by

the Act.”); Benjamin v. Douglas Ridge Rifle Club, 673

F. Supp. 2d 1210, 1215 n.2 (D. Or. 2009) (“Justice

Kennedy’s significant nexus test is inapplicable to

determining the jurisdictionality of tributaries to

waters of the United States. … Justice Kennedy

limits the applicability of his legal standard to

wetlands adjacent to jurisdictional waters.”). Other

16

courts, however, applied the test more broadly to nonwetland features. E.g., United States v. Robison, 505

F.3d 1208, 1223-24 (11th Cir. 2007) (analyzing

whether a non-navigable tributary is a “navigable

water” using the significant nexus test); Env’t Prot.

Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803,

822-23 (N.D. Cal. 2007) (evaluating whether

ephemeral and intermittent streams are “navigable

waters” under the significant nexus test).

Over time, the more expansive view of the

significant nexus test has ossified. Using that test,

lower courts have found that even man-made

channels and ephemeral streams come within the

phrase “navigable waters.” E.g., United States v. HVI

Cat Canyon, Inc., 314 F. Supp. 3d 1049, 1063-64 &

n.16 (C.D. Cal. 2018) (noting that “even ephemeral

streams may be jurisdictional under the CWA so long

as they possess a significant nexus to a [traditional

navigable water]” and affirming the Government’s

assertion of jurisdiction over a manmade feature

“locally known as ‘asphalt creek’” and “‘drainages’

which are dry most of the year”); United States v.

Vierstra, 803 F. Supp. 2d 1166, 1170-72 (D. Idaho

2011), aff’d, 492 F. App’x 738 (9th Cir. 2012)

(determining that the Government’s evidence

supports a finding of a significant nexus between a

man-made canal that flows during irrigation season

and a navigable river).

Although “Justice Kennedy created the

significant nexus test specifically because he was

disturbed by the assertion of jurisdiction over

wetlands situated along a ditch ‘many miles from any

navigable-in-fact water,’ carrying ‘only insubstantial

17

flow toward it,’” Precon Devel. Corp. v. U.S. Army

Corps of Eng’rs, 633 F.3d 278, 295 (4th Cir. 2011)

(citation omitted), courts have continued to uphold

those sorts of assertions of jurisdiction under the

significant nexus test, presumably because they view

that test to be a “flexible inquiry into the ecological

relationship between the wetlands (or in this case, the

waterway) at issue and traditional navigable waters,”

Wis. Resources Prot. Council v. Flambeau Min. Co.,

903 F. Supp. 2d 690, 715 (W.D. Wisc. 2012); accord

HVI Cat Canyon, 314 F. Supp. 3d at 1058 (same). In

one case, the court upheld jurisdiction over creeks and

a tributary with “insignificant flow and contribut[ing]

less than one percent of the water to their nearest

respective [traditional navigable water],” located

“tens of miles” away. HVI Cat Canyon, 314 F. Supp.

3d at 1063-64.

This evolution of the significant nexus test in the

courts mirrors the Government’s gradual expansion

of the test through administrative interpretations.

Shortly after Rapanos, EPA and the Corps issued

interpretive guidance on how to apply the significant

nexus test to “non-navigable, not relatively

permanent tributaries and their adjacent wetlands[.]”

See U.S. EPA & Dep’t of the Army, Clean Water Act

Jurisdiction Following the U.S. Supreme Court’s

Decision in Rapanos v. United States & Carabell v.

United States 7 (June 5, 2007).6 Under that guidance,

any significant nexus analysis would focus on the flow

characteristics and functions of a particular

tributary, along with the functions performed by any

6 https://www.epa.gov/sites/default/files/2016-

04/documents/rapanosguidance6507.pdf.

18

wetlands adjacent to the tributary to determine if

they (alone or in combination) significantly affect the

integrity of a downstream traditional navigable

water. See id. at 7. Nothing in the guidance

contemplated applying the significant nexus test to

other water features, such as isolated ponds. In fact,

the agencies made it clear that “[n]othing in [their]

guidance should be interpreted as providing authority

to assert jurisdiction over waters deemed nonjurisdictional by SWANCC.” Id. at 8 n.29.

By 2011, EPA and the Corps set out to broaden

the scope of the significant nexus test, first through

additional guidance and then through rulemaking.

See Draft Guidance on Identifying Waters Protected by

the Clean Water Act (May 2, 2011) (“Draft

Guidance”);7 accord 80 Fed. Reg. 37,054 (June 29,

2015). Both of those actions extended the significant

nexus test beyond tributaries and their adjacent

wetlands to encompass various “other waters” such as

prairie potholes,8 isolated lakes and ponds, and

pocosins.9 See Draft Guidance at 19-20; 80 Fed. Reg.

at 37,065, 37,104-05. Moreover, the geographic scale

of a significant nexus analysis swelled from

evaluating a particular tributary and its adjacent

7 https://www.regulations.gov/document/EPA-HQ-OW-2011-

0409-0002.

8 Prairie potholes are “a complex of glacially formed wetlands,

usually occurring in depressions that lack permanent natural

outlets, located in the upper Midwest.” 80 Fed. Reg. at 37,105.

9 Pocosins are “evergreen shrub and tree dominated wetlands

found predominantly along the Central Atlantic coastal plain.”

Id.

19

wetlands to evaluating all similarly situated waters

within “the watershed which drains to the nearest

traditional navigable water, interstate water or

territorial sea”—areas that can range from hundredsof-thousands of acres to potentially millions of acres

in size.10 80 Fed. Reg. at 37,091; accord Draft

Guidance at 8. Finally, under this revamped

significant nexus test, the geographic isolation of a

water feature is of no moment. The agencies touted

that “in some cases the lack of a hydrologic connection

would be a sign of the water’s function in relationship

to the traditional navigable water[.]” 80 Fed. Reg. at

37,093; accord Draft Guidance at 9 (same).

While EPA and the Corps eliminated the use of

the significant nexus test in 2020,11 the agencies have

reverted to applying that test. As the Government’s

brief in opposition explained, the agencies are no

longer applying the 2020 Navigable Waters

Protection Rule and are instead “applying the pre2015 regulatory regime.” See Br. for the Resp’ts in

Opp’n at 19. And to ensure that the regulatory text

aligns with the current regime, the agencies proposed

a rule that “generally maintains the legal status quo.”

Revised Definition of “Waters of the United States,”

10 If such a watershed is too large, the Government can use a

“smaller watershed,” but “generally no smaller than a typical 10digit hydrologic unit code (HUC-10) watershed in the same

area,” which still ranges from 40,000-250,000 acres in size. See

Draft Guidance at 8; 80 Fed. Reg. at 37,092.

See The Navigable Waters Protection Rule, 85 Fed. Reg.

22,250, 22,325 (Apr. 21, 2020) (“[T]he final rule eliminates the

case-specific application of Justice Kennedy’s significant nexus

test, and instead establishes clear categories of jurisdictional

waters and non-jurisdictional waters and features[.]”).

11

20

86 Fed. Reg. 69,372, 69,446 (Dec. 7, 2021). In the

agencies’ own words, “the regulatory scope [of] the

presently implemented pre-2015 regulatory regime is

approximately the same as the proposed rule.” Id. In

that proposal, the agencies:



apply the significant nexus test to tributaries,

adjacent wetlands, and “[a]ll other waters

such as intrastate lakes, rivers, streams

(including intermittent streams), mudflats,

sandflats,

wetlands,

sloughs,

prairie

potholes, wet meadows, playa lakes, or

natural ponds” (86 Fed. Reg. at 69,449);



declare they can “implement the scope of the

significant nexus analysis” through a “more

regionalized approach,” such as by looking at

entire watersheds, “defined by where a

tributary and its upstream tributaries drain

into a traditional navigable water,” rather

than just focusing the significant nexus

analysis on a particular tributary and its

adjacent wetlands (86 Fed. Reg. at 69,439);



reiterate that “other waters” that are isolated

“from the stream network or from

jurisdictional waters” can nonetheless meet

the significant nexus test, and it may be

“their relative isolation from the stream

network (e.g., lack of a hydrologic surface

connection) that contributes to the important

effect that they have downstream” (86 Fed.

Reg. at 69,393).

Furthermore, in a supporting document, the

agencies elaborate on how “other waters” that are

21

“distant from the stream network or from

jurisdictional waters” can meet the significant nexus

test because they provide functions that restore and

maintain the chemical, physical, and biological

integrity of navigable waters. Technical Support

Document for the Proposed “Revised Definition of

‘Waters of the United States’” Rule 206-07 (Nov. 18,

2021).12 For instance, such waters can be “biologically

connected … through the movement of seeds,

macroinvertebrates, amphibians, reptiles, birds, and

mammals.”

Id.

at

207.

Plants

and

macroinvertebrates, in particular, can “achieve

dispersal over a variety of distances,” such as by

“‘hitchhiking’ on or inside highly mobile animals” for

“hundreds of kilometers.” Id. at 207-08. Because of

these, and other functions, that remote waters can

provide to traditional navigable waters, the agencies

believe it is appropriate to apply the significant nexus

test to those waters.

The judicial and agency expansions of the

significant nexus test detailed above cannot be

reconciled with SWANCC, as they would extend

federal regulatory authority to countless water

features that are “a far cry, indeed, from the

‘navigable waters’ and ‘waters of the United States’ to

which the statute by its terms extends.” SWANCC,

531 U.S. at 173. In SWANCC, the Court concluded

“the text of the statute will not allow” for the

Government’s jurisdiction to “extend[] to ponds that

are not adjacent to open water.” 531 U.S. at 168; see

also Rapanos, 547 U.S. at 728 (plurality) (recounting

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

proposedrule_508.pdf.

22

how lower courts upheld the Government’s broad

theories of jurisdiction “even after SWANCC’s

excision of ‘isolated’ waters and wetlands from the

Act’s coverage”). SWANCC also reinforced the

independent significance of Congress’s use of the term

“navigable,” as the Court could not agree “that

Congress’ separate definitional use of the phrase

‘waters of the United States’ constitutes a basis for

reading the term ‘navigable waters’ out of the

statute.” SWANCC, 531 U.S. at 172. Finally, the

Court “read the statute as written to avoid the

significant constitutional and federalism questions

raised by” an interpretation that would bring isolated,

intrastate, non-navigable ponds and mudflats within

the phrase “navigable waters.” Id. at 174.

Despite these holdings, the significant nexus test

has devolved into the sort of unbounded inquiry into

ecological factors and connections (or lack thereof)

between traditional navigable waters and nonnavigable water features perhaps even dozens of

miles away that “would swiftly overwhelm SWANCC

altogether; after all, the ponds [this Court held to be

non-jurisdictional] in SWANCC could … offer nesting,

spawning, rearing and resting sites for aquatic or

land species, and serve as valuable storage areas for

storm and flood waters.” Rapanos, 547 U.S. at 749

(plurality). Using the significant nexus test to assert

jurisdiction over isolated features based on biological

connections such as the dispersal of seeds or

macroinvertebrates to a distant navigable water is

especially untenable. Like the now-defunct Migratory

Bird Rule, such an interpretation of the CWA reads

the term “navigable” out of the statute and presents

the same federalism concerns that drove the holding

23

in SWANCC. And it would result in bringing nonnavigable water features within the scope of the

phrase “navigable waters” in circumstances that are

just as “surprising” and “bizarre” as “requir[ing] a

permit … for pollutants carried to navigable waters

on a bird’s feathers.” Cnty. of Maui v. Haw. Wildlife

Fund, 140 S. Ct. 1462, 1471 (2020).

III. INTERPRETING “NAVIGABLE WATERS”

TO INCLUDE ANY WATER FEATURE

CONNECTED TO A “NAVIGABLE WATER”

IS UNNECESSARY TO PROTECT WATER

QUALITY.

Under the significant nexus test, the rationale for

bringing wetlands within the statutory phrase

“navigable waters” is as follows: where wetlands

“perform critical functions related to the integrity” of

downstream navigable-in-fact waters, they too must

be regulated as “navigable waters” to ensure the

downstream waters are protected. See Rapanos, 547

U.S. at 779 (Kennedy, J., concurring). Elsewhere in

his opinion, Justice Kennedy appeared to apply the

significant nexus test to not only wetlands, but also

other “nonnavigable waters,” though he did not parse

whether wetlands and nonnavigable waters function

in the same way relative to downstream navigable

waters. See id. at 759, 767. This has allowed the

Government to take the view that an expansive

reading of the term “navigable waters” is needed due

to the risk that pollutant discharges into wetlands

and their adjacent tributaries will ultimately impair

the quality of traditional navigable waters. See, e.g.,

86 Fed. Reg. at 69,394 (“[I]t would be impossible to

achieve Congress’s objective if the scope of authority

24

were constrained to waters traditionally understood

as navigable because those channels cannot be

protected without protecting the tributaries that flow

into them and wetlands adjacent to them.”); see also

id. at 69,393 (explaining that “[s]ometimes it is [other

waters’] relative isolation from the stream network

(e.g., lack of a hydrologic surface connection) that

contributes to the important effect that they have

downstream”).

These justifications do not withstand scrutiny.

As explained in Part A below, the Federal

Government can protect navigable waters by

regulating upstream discharging activities without

having to federalize intervening water features and

wetlands that may convey pollutants through

connections to downstream navigable waters. In Part

B, we explain how a vast array of regulatory and nonregulatory forest practices programs at the state and

local levels, as well as private sector initiatives, work

together to ensure that forest management activities

are protective of water quality, without the need for a

federal regulatory overlay.

A.

The CWA’s Discharge Prohibition And

Regulatory Programs Ably Protect

“Navigable Waters” From Polluting

Activities Upstream.

Under the CWA’s plain terms, the Federal

Government has authority to regulate upstream

activities that result in the addition of pollutants from

point sources to navigable waters. Thus, there is no

need to also treat wetlands or other water features

through which pollutants are added, many of which

may be several miles upstream of any navigable-in-

25

fact water, as “navigable” under the atextual

significant nexus test. The CWA is best read as

authorizing the Federal Government to protect the

integrity of navigable waters by regulating point

source discharges to such waters, while providing

financial and technical assistance under the Act’s

non-regulatory programs to bolster state and local

efforts to protect all other waters. A “central

provision” of the CWA is the prohibition of the

discharge of any pollutant except as in compliance

with specified provisions of the Act, such as the

“requirement that individuals, corporations, and

governments secure National Pollutant Discharge

Elimination System (NPDES) permits before

discharging pollution from any point source into the

navigable waters of the United States.” Decker v. Nw.

Env’t Def. Ctr., 568 U.S. 597, 602 (2013) (citing 33

U.S.C. §§ 1311(a), 1362(12)). The NPDES program

regulates the disposal of most “pollutants,” which the

Act defines broadly. See 33 U.S.C. §§ 1342, 1362(6).

Discharges of dredged or fill material, however, are

instead subject to regulation under the section 404

permit program. See Coeur Alaska, Inc. v. Se. Alaska

Conservation Council, 557 U.S. 261, 274 (2009)

(holding that “if the Corps has authority to issue a

permit for a discharge under § 404, then the EPA

lacks authority to do so under § 402”); see also 40

C.F.R. § 232.2 (defining “fill material”).

The Federal Government enjoys powerful

authority under these two permitting programs to

regulate discharging activities where pollutants

26

reach navigable waters.13 This is true when “a point

source directly deposits pollutants into navigable

waters, or when the discharge reaches the same

result through roughly similar means.” Cnty. of Maui,

140 S. Ct. at 1476. Furthermore, the term “discharge

of a pollutant” “includes within its reach point sources

that do not themselves generate pollutants” but

simply “convey” pollutants to navigable waters. S.

Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians,

541 U.S. 95, 105 (2004).

Because the Act restricts the “addition of any

pollutant to navigable waters,” courts have been able

to address situations where a pollutant is discharged

indirectly into a navigable water without seeing a

“need to classify [] intervening conduits as ‘waters of

the United States.’” Rapanos, 547 U.S. at 743-44

(plurality) (emphasis added). The foregoing

illustrates how the Federal Government can

effectively protect the integrity of “navigable waters”

by addressing upstream discharges that reach such

waters under the Act’s regulatory programs. There is

no need to adopt a linguistically implausible

interpretation of “navigable waters” that extends to

every upstream water feature that connects to a

navigable-in-fact water.

13 Fill material, which 40 C.F.R. § 232.2 defines as material that

has the effect of “[r]eplacing any portion of a water of the United

States with dry land” or “[c]hanging the bottom elevation of any

portion of a water of the United States,” generally stays in place

and does not pose the same risk of migrating to navigable waters

as pollutants that are regulated under the NPDES program.

27

B.

Rigorous Governmental And Private

Sector Programs Effectively Protect

Water Quality In And Around Forested

Landscapes.

In the United States, forestry activities on

private land overwhelmingly occur under the

auspices of comprehensive state-approved Best

Management Practices (BMPs) that are designed to

protect water quality and habitat for aquatic

organisms. In the forestry context, BMPs refer to a

practice or combination of practices designed to

prevent or mitigate water quality impacts. See

Decision Not to Regulate Forest Road Discharges

Under the Clean Water Act, 81 Fed. Reg. 43,492,

43,496 (July 5, 2016). BMPs, established by state

natural resource agencies in consultation with forest

managers, reflect local conditions and have proven

extremely effective at protecting water quality in

areas under active forest management. Erik B.

Schilling, et al., Forestry Best Management Practices

and Conservation of Aquatic Systems in the

Southeastern United States 1-3, Water 13(19), 2611,

(2021) (“Schilling”).14 BMPs typically apply whether

or not the water bodies in question are “navigable

waters” under the CWA. Any attempt to justify

expansion of federal jurisdiction as necessary to

protect water quality from forestry activities would

therefore be misplaced.

State-approved BMPs provide a smorgasbord of

practices covering all aspects of forestry that may

affect water quality. BMPs include identifying and

avoiding high-erosion hazard areas; minimizing the

14 https://doi.org/10.3390/w13192611 (last visited Apr. 13, 2022).

28

total land area disturbed; minimizing road crossings

and other incursions into waterbodies; and

anticipating

and

mitigating

erosion

from

precipitation events. They also include such measures

as vegetative buffers adjacent to waterbodies, where

activity is modified or limited to reduce the potential

for nonpoint source pollution runoff from sediment

and other pollutants, known as “streamside

management zones” or “SMZs.” Schilling at 3.

Streamside management zones can also provide

shade to the waterbodies, which is important for

aquatic organisms sensitive to temperature; and aid

in maintaining streambank stability, which reduces

erosion. Id.

Other BMPs include locating forest roads and

trails away from streams as much as possible and

employing road construction and maintenance

methods particularly designed to reduce and capture

erosion and limit stormwater runoff. Id. at 4; see also

81 Fed. Reg. at 43,496 (identifying BMPs such as

using gravel and buffers as erosion control for

construction of forest roads, in particular). Yet

another area where BMPs are used is in the context

of chemical fertilizer and herbicide applications. The

use of chemicals generally occurs only in the effort to

regenerate forest stands following harvest. While

these chemicals are used infrequently, they are

critical for regeneration of a healthy and productive

forest stand. When they must be used, BMPs such as

limiting application rates, application only under

favorable weather conditions, and streamside

management zones are “highly effective” in limiting

29

runoff, thereby limiting nutrient and chemical

loading in a waterbody.15 Schilling at 6-7.

To complement state programs,16 BMPs are

required for landowners seeking certification under

such third-party programs as the American Tree

Farm System17 (ATF), Sustainable Forestry

Initiative18 (SFI), and Forest Stewardship Council19

(FSC). See 81 Fed. Reg. at 43,499, 43,503-04.

15 In addition, herbicide applications in the forest must comply

with rigorous requirements for handling and safe use under the

Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §

136 et seq., as well as with the terms of the applicable pesticide

general permit issued by EPA or authorized States under CWA

Section 402. See generally U.S. EPA, Pesticide Permitting,

https://www.epa.gov/npdes/pesticidepermittinghttps://www.epa.gov/npdes/pesticide-permitting (last

visited Apr. 13, 2022).

16 At the federal level, the U.S. Forest Service and the U.S.

Bureau of Land Management incorporate their own BMPs into

management of silvicultural activities on federal lands. See

generally, USDA, Forest Service, National Best Management

Practices for Water Quality Management on National Forest

System Lands 128-40 (2012),

https://www.fs.fed.us/naturalresources/watershed/pubs/FS_Nat

ional_Core_BMPs_April2012.pdf; see also 81 Fed. Reg. at

43,500-02 (describing monitoring and success of Forest Service

program and similar efforts by the U.S. Bureau of Land

Management).

17 https://www.treefarmsystem.org/view-standards (last visited

Apr. 13, 2022).

18 http://www.sfiprogram.org/sfi-standards/ (last visited Apr. 13,

2022).

19 https://us.fsc.org/en-us/certification (last visited Apr. 13,

2022).

30

Landowners that sell wood to mills with certified fiber

sourcing likewise must ensure BMPs are employed.

Schilling at 9.20

Nationwide, monitoring of forestry BMP

implementation on private lands is rigorous and

continuous, and it consistently demonstrates high

implementation rates, regardless of whether States

implement BMP programs through mandatory,

quasi-mandatory, or voluntary means. See 81 Fed.

Reg. at 43,498; see also Schilling at 8. EPA has found

that “all states with significant forestry operations

have developed BMP manuals and most states have

established forest management programs tailored to

state-specific conditions (e.g., topography, climate,

and industry activity) that address runoff from forest

roads.” 81 Fed. Reg. at 43,497.

The high implementation rates have resulted in

measurable environmental benefits. A robust body of

scientific literature reinforces the conclusion that

properly implemented forestry BMPs protect not only

water quality, but also in-stream habitat conditions

for species. As EPA found in 2016 when it declined to

designate stormwater discharges from forest roads for

regulation under 33 U.S.C. § 1342(p)(6), “[t]he

scientific literature increasingly demonstrates the

effectiveness of BMPs in preventing, minimizing, and

mitigating discharges affecting water quality and

aquatic habitats.” 81 Fed. Reg. at 43,496. EPA further

emphasized that:

20 See also Sustainable Forestry Initiative, The SFI 2022 Fiber

Sourcing Standard, https://forests.org/fibersourcingstandard/

(last visited Apr. 13, 2022).

31

state, federal, regional, tribal government,

and private sector programs already exist

nationwide to address water quality

problems caused by discharges from forest

roads. Many of these programs have been

improved and updated in recent years.

Program implementation rates are generally

high and have been shown to be effective in

protecting water quality when properly

implemented.

Id. at 43,493; see also Decker, 568 U.S. at 614

(explaining that EPA’s decision not to require NPDES

permits for logging road runoff “exists against a

background of state regulation with respect to

stormwater runoff from logging roads”).

Studies published since the time of EPA’s

findings in 2016 further confirm that properly

implemented forestry BMPs are protective of water

quality. E.g., Schilling at 7-8 (describing 2021 results

of literature review). Together, these studies show

that “[s]treams in forested areas are known to have

higher water quality than streams with water

draining from other land uses[.]” Id. at 1.

Notably, the U.S. Fish and Wildlife Service

(FWS)—the agency charged with implementing the

Endangered Species Act (ESA) for terrestrial and

freshwater species—has also recognized the

importance of forestry BMPs in protecting and

enhancing

water

quality,

especially

when

promulgating “Section 4(d)” rules, which are speciesspecific rules for protection of a species listed as

threatened. 16 U.S.C. § 1533(d). Under ESA Section

4(d), FWS may exempt certain activities from the

32

prohibition on “incidental take” of a species, as

defined in the ESA. In recent years, due to a shift in

policy, FWS has been promulgating Section 4(d) rules

more frequently. And when promulgating such rules

for aquatic species, the Service has often exempted

forest management activities that comply with stateissued BMPs from the incidental take prohibition.

E.g., Endangered and Threatened Wildlife and

Plants; Threatened Species Status With Section 4(d)

Rule for Neuse River Waterdog, Endangered Species

Status for Carolina Madtom, and Designations of

Critical Habitat, 86 Fed. Reg. 30,688, 30,728 (June 9,

2021); Endangered and Threatened Wildlife and

Plants; Section 4(d) Rule for Trispot Darter, 85 Fed.

Reg. 61,614, 61,619 (Sept. 30, 2020). In FWS’s words:

[d]evelopment and refinement of BMPs has

resulted in substantial improvements to

forestry’s impacts on water quality in recent

decades and has created a culture of water

stewardship in the forest landowner

community, making this stakeholder group

an important ally in the conservation of

imperiled species.

86 Fed. Reg. at 30,694.

The forestry sector’s demonstrated success in

protecting

water

resources

illustrates

why

federalizing as many waters as possible under a broad

reading of “navigable waters” is unnecessary. In fact,

EPA has warned of the perverse consequences of

adding yet “another federal program” in the forestry

space: the “diver[sion of] resources from on-theground stream protection efforts to bureaucratic

reshuffling.” 81 Fed. Reg. at 43,506. Stream

33

protection efforts should remain local. That waterquality protection efforts like BMPs are largely the

province of States makes eminent sense. BMPs are by

nature site-specific. State natural resource agencies,

with their more intimate knowledge of local

conditions, are better suited to continue developing

and implementing BMPs. Thus, it is unsurprising

that EPA has recognized that “[w]ide variations in

topography, climate, ownership, management, and

use across the nation’s network of forest roads make

the establishment of any nationwide regulatory

program a complex and difficult endeavor.” Id. at

43,493; see also id. at 43,498-99. The federal

interference threatened by the expansion of CWA

jurisdiction is therefore unnecessary to advance

EPA’s water-quality goals in the forestry context. Not

only is it unnecessary, but it could even “be

duplicative or counterproductive,” particularly where

there are “extensive rules” governing water-quality

protection during silvicultural activities. Decker, 568

U.S. at 614.

CONCLUSION

For the foregoing reasons, the Court should

reverse the judgment of the Ninth Circuit.

34

Respectfully submitted,

DAVID Y. CHUNG

Counsel of Record

ELIZABETH B. DAWSON

CROWELL & MORING LLP

1001 Pennsylvania Ave., N.W.,

Washington, D.C. 20004

(202) 624-2500

dchung@crowell.com

WILLIAM R. MURRAY

NATIONAL ALLIANCE OF FOREST

OWNERS

122 C St. N.W., #630

Washington, D.C. 20001

APRIL 2022