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

No. 21-454

In the Supreme Court of the United States

MICHAEL SACKETT, ET UX.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

BRIEF OF FOURTEEN NATIONAL AGRICULTURAL

ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

ELLEN STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Ave SW

Suite 1000W

Washington, DC 20024

TIMOTHY S. BISHOP

Counsel of Record

BRETT E. LEGNER

Mayer Brown LLP

71 South Wacker Drive

Chicago, Illinois 60606

(312) 782-0600

tbishop@mayerbrown.com

Counsel for Amici Curiae

Additional Counsel Listed on Signature Page

i

QUESTION PRESENTED

Whether the Ninth Circuit set forth the proper

test for determining whether wetlands are “waters of

the United States” under the Clean Water Act, 33

U.S.C. § 1362(7).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

TABLE OF AUTHORITIES.......................................iv

INTERESTS OF THE AMICI CURIAE .....................1

SUMMARY OF ARGUMENT .....................................3

ARGUMENT ...............................................................5

I. Agriculture bears the brunt of expansive

and ambiguous WOTUS definitions......................5

A. Broad and unclear WOTUS definitions

impose enormous burdens on

agriculture ........................................................5

B. The Agencies’ latest proposed rule fails

to adhere to the CWA or to provide clear

guidance to agriculture .................................. 10

1. The physical connection and

significant effect standards are

hopelessly vague........................................ 11

2. Common farm and ranch features

would be treated as WOTUS by the

proposed rule ............................................. 13

II. The Court in Riverside Bayview, SWANCC,

and Rapanos set forth the test for

determining if features are waters of the

United States ....................................................... 16

A. This Court set important limits on the

scope of the Agencies’ authority under

the CWA in Riverside Bayview and

SWANCC......................................................... 16

iii

TABLE OF CONTENTS—continued

Page

B. The Rapanos plurality correctly applied

the limiting principles from Riverside

Bayview and SWANCC to define the

scope of the Agencies’ jurisdiction.................. 20

III.The Agencies deserve no deference for their

revolving definitions of WOTUS.......................... 22

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

ADDENDUM ............................................................. 32

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Ala. Ass’n of Realtors v. Dep’t of Health

and Human Servs.,

141 S. Ct. 2485 (2021) (per curiam) .................... 28

Borden Ranch P’ship v. U.S. Army

Corps of Eng’rs,

261 F.3d 810 (9th Cir. 2000) .................................. 6

Dep’t of Transp. v. Ass’n of Am. R.R.s,

575 U.S. 43, 61 (2015) .......................................... 30

Duarte Nurseries v. U.S. EPA,

No.13-cv-2095 (E.D. Cal. Dec. 8,

2017) ....................................................................... 6

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) .............................................. 23

In re EPA,

803 F.3d 804 (6th Cir. 2015),

vacated, 713 Fed. App’x 489 (6th Cir.

2018) ..................................................................... 26

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................. 23

FERC v. Mississippi,

456 U.S. 742 (1982) .............................................. 19

Georgia v. Pruitt,

326 F. Supp. 3d 1356 (S.D. Ga. 2018) ................. 26

v

TABLE OF AUTHORITIES—continued

Page(s)

Georgia v. Wheeler,

418 F. Supp. 3d 1336 (S.D. Ga. 2019) ......... passim

Hodel v. Va. Surface Mining and

Reclamation Ass’n,

452 U.S. 264 (1981) .............................................. 19

Nat’l Cable & Telecomms. Ass’n v.

Brand X Internet Servs.,

545 U.S. 967 (2005) .............................................. 23

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

Labor,

142 S. Ct. 661 (2022) ...................................... 29, 30

National Association of Manufacturers

v. Department of Defense,

138 S. Ct. 617 (2018) .................................... 2, 4, 26

Navajo Nation v. Regan,

No. 20-cv-602, 2021 WL 4430466

(D.N.M. Sept. 27, 2021) ....................................... 27

North Dakota v. EPA,

127 F. Supp. 3d 1047 (D.N.D. 2015).................... 26

Pascua Yaqui Tribe v. EPA,

No. 20-cv-00266, 2021 WL 3855977

(D. Ariz. Aug. 30, 2021)........................................ 27

Rapanos v. U.S. EPA,

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

vi

TABLE OF AUTHORITIES—continued

Page(s)

Sackett v. EPA,

566 U.S. 120 (2012) ........................................ 23, 30

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Engineers,

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

South Carolina Coastal Conservation

League v. Regan,

No. 20-cv-01687 (D.S.C. July 15,

2021), Dkt. 147 ....................................................... 3

Texas v. EPA,

389 F. Supp. 3d 497 (S.D. Tex. 2019) .................. 26

U.S. Army Corps of Eng’rs v. Hawkes

Co.,

578 U.S. 590 (2016) .................................... 7, 23, 28

United States v. Riverside Bayview

Homes, Inc.

474 U.S. 121 (1985) ............................ 17, 20, 21, 22

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) .............................................. 28

Weyerhaeuser v. U.S. Fish & Wildlife

Service,

139 S. Ct. 361 (2018) .............................................. 4

vii

TABLE OF AUTHORITIES—continued

Page(s)

STATUTES, RULES AND REGULATIONS

33 U.S.C. § 1251(a) ................................................ 4, 16

33 U.S.C. § 1251(b) ............................................ 4, 5, 18

33 U.S.C. § 1319(c) ...................................................... 6

33 U.S.C. § 1365 .......................................................... 6

Clean Water Act Regulatory Programs,

58 Fed. Reg. 45,008 (Aug. 25, 1993) ...................... 6

Clean Water Rule: Definition of “Waters

of the United States”, 80 Fed. Reg.

37,054 (June 29, 2015) ............................... 3, 13, 24

The Navigable Waters Protection Rule:

Definition of “Waters of the United

States”, 85 Fed. Reg. 22,250 (Apr.

21, 2020) ....................................................... passim

Revised Definition of “Waters of the

United States”, 86 Fed. Reg. 69,372

(Dec. 7, 2021) ................................................ passim

Sup. Ct. Rule 37.6........................................................ 1

viii

TABLE OF AUTHORITIES—continued

Page(s)

MISCELLANEOUS

EPA and Department of the Army,

Economic Analysis of the EPA-Army

Clean Water Rule (May 20, 2015),

https://www.epa.gov/sites/default/file

s/2015-06/documents/508-final_

clean_water_rule_economic_analysis

_5-20-15.pdf .......................................................... 25

EPA, Current Implementation of Waters

of the United States (last updated

Dec. 20, 2021),

https://www.epa.gov/wotus/currentimplementation-waters-unitedstates ................................................................ 7, 27

EPA, Memo, Clean Water Act

Jurisdiction Following the U.S.

Supreme Court’s Decision in

Rapanos v. United States & Carabell

v. United States (Dec. 2, 2008),

https://www.epa.gov/sites/default/file

s/2016-02/documents/cwa_

jurisdiction_following_rapanos12020

8.pdf ................................................................ 24, 25

USDA, 2020 U.S. Agricultural Export

Yearbook,

https://www.fas.usda.gov/sites/defaul

t/files/inline-files/2020-ag-exportyearbook.pdf ........................................................... 5

ix

TABLE OF AUTHORITIES—continued

Page(s)

USDA, Economic Research Serv., Ag

and Food Sectors and the Economy

(Feb. 24, 2022),

https://www.ers.usda.gov/dataproducts/ag-and-food-statisticscharting-the-essentials/ag-and-foodsectors-and-the-economy/ .................................. 2, 5

USDA, Farms and Land in Farms (Feb.

2020),

https://www.nass.usda.gov/Publicati

ons/Todays_Reports/reports/fnlo0220

.pdf .......................................................................... 5

BRIEF OF FOURTEEN NATIONAL AGRICULTURAL ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

INTERESTS OF THE AMICI CURIAE

The amici are national organizations that represent among them much of the Nation’s agricultural

production.1 Their members grow plentiful and affordable meat, produce, and fiber that feed and clothe

Americans, or manufacture the fertilizers that help

make our agriculture so productive. Amici are the

American Farm Bureau Federation, American Sheep

Industry Association, American Soybean Association,

American Sugar Alliance, Family Farm Alliance, National Association of Wheat Growers, National Corn

Growers Association, National Cotton Council, National Council of Farmer Cooperatives, National Pork

Producers Council, The Fertilizer Institute, United

Egg Producers, USA Rice Federation, and U.S. Poultry & Egg Association. They are described in an addendum to this brief.

Amici’s members grow virtually every agricultural commodity produced commercially in the United

States, including much of the U.S. wheat, corn, rice,

soybean, cotton, wool, sugar, milk, poultry, egg, pork,

lamb, and beef supply. Agriculture and livestock-related industries contributed over $1 trillion to the U.S.

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici, their members, and their counsel made a monetary

contribution to its preparation or submission. Counsel of record

for all parties have consented to this filing.

1

2

gross domestic product in 2020 and employed 20 million people. USDA, Economic Research Serv., Ag and

Food Sectors and the Economy (Feb. 24, 2022).

This brief describes the great importance to agricultural land-users of establishing clear standards to

determine whether property contains “waters of the

United States” (WOTUS) subject to the permitting requirements and enforcement mechanisms of the

Clean Water Act (CWA). It describes too the significant problems farmers face because of the broad, uncertain, and shifting definitions of WOTUS adopted by

EPA and the U.S. Army Corps of Engineers (the Agencies). Because the agricultural community has been

among the primary victims of the 50-years of agency

overreach and regulatory chaos that once again brings

WOTUS to this Court, amici have been at the forefront of efforts to clarify the law.

Amici’s efforts to obtain a clear and durable definition of WOTUS that comports with Congress’s intent and with constitutional limitations have varied

from organization to organization, but include participating as amici in Solid Waste Agency of N. Cook

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

(2001) (SWANCC), and Rapanos v. U.S. EPA, 547 U.S.

715 (2006), and as prevailing parties in National Association of Manufacturers v. Department of Defense,

138 S. Ct. 617 (2018) (NAM); filing comments on rule

proposals;2 and challenging in court, or intervening to

2 For example, all amici commented on the Agencies’ latest pro-

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

Fed. Reg. 69,372 (Dec. 7, 2021) (Revised Definition). See the February 7, 2022, comments of AFBF et al., ASA, NCGA, Family

Farm Alliance, TFI, and the umbrella Waters Advocacy Coalition

(WAC), collected at EPA Docket ID EPA-HQ-OW-2021-0602.

3

defend, the Agencies’ regulations.3 Amici have decades of experience working to improve the understanding of WOTUS before the Agencies and in courts

at every level, and their members bear the burden of

ongoing uncertainty about that concept every day.

Amici believe that their considerable experience will

assist this Court in resolving this important case.

SUMMARY OF ARGUMENT

As each opinion in Rapanos acknowledges, and

this Court’s rephrasing of the question presented here

confirms, determining whether a wetland is a “water

of the United States” depends on first understanding

the proper test for WOTUS. The plurality in Rapanos

defined WOTUS in a clear and workable way based on

the plain meaning of the CWA’s text, the statutory

context of the relevant language, and core constitutional principles. It recognized that the Act’s objective

“to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters” applies

3 For example, some amici were plaintiffs in two suits in which

courts held unlawful the 2015 WOTUS rule, 80 Fed. Reg. 37,054

(June 29, 2015) (2015 Rule): Georgia v. Wheeler, 418 F. Supp. 3d

1336 (S.D. Ga. 2019); American Farm Bureau Federation v. EPA,

No. 15-cv-165 (S.D. Tex. Sept. 12, 2018), Dkt. 87 (AFBF), and

were intervenor-defendants in suits challenging the 2020 Navigable Waters Protection Rule, 85 Fed. Reg. 22,250 (Apr. 21, 2020)

(NWPR). E.g., Colorado v. U.S. EPA, No. 20-1238 (10th Cir. Mar.

2, 2021) (reversing preliminary injunction against NWPR);

South Carolina Coastal Conservation League v. Regan, No. 20cv-01687 (D.S.C. July 15, 2021), Dkt. 147 (remanding NWPR to

Agencies without vacatur). A declaration filed in the WOTUS litigations by Don Parrish, Senior Director of Regulatory Affairs,

AFBF, details the impact of overbroad and uncertain WOTUS

jurisdiction on agriculture. Decl. of Don Parrish, Environmental

Integrity Project v. Regan, No. 20-cv-1734 (D.D.C. Sept. 3, 2021),

Dkt. 35-1 (Parrish Decl.).

4

only to “waters of the United States,” not any wet area

anywhere, and is subject also to “the policy of Congress to recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use * * * of land and water resources * * *.”

33 U. S. C. §1251(a), (b). Despite the plurality’s clear

explanation of the limits of WOTUS, the Agencies

have failed to provide a durable definition of WOTUS.

In shifting guidance and rules that have resulted

in far more litigation than clarity, the Agencies have

distorted the limits set forth in the Rapanos plurality’s opinion. They also have taken an outlandishly expansive view of the phrase “significant nexus” used by

Justice Kennedy in his solitary concurrence, while ignoring the constraints that Justice Kennedy put on

that concept. As a result, the Agencies assert jurisdiction over not only wetlands and wet areas isolated and

distant from navigable waters, but also ditches, intermittent streams, ephemeral drainages, interstate

ponds and many other features. This is not the first

time federal agencies have flouted the plain language

of environmental laws to serve their own purposes—

see, e.g., NAM, supra, and Weyerhaeuser v. U.S. Fish

& Wildlife Service, 139 S. Ct. 361 (2018) (unanimously

rejecting contorted agency interpretations of the CWA

and Endangered Species Act, respectively)—but it

may be the most egregious. Nothing in the CWA authorizes the Agencies’ massive federal land-grab,

which subjects amici’s members to crushing penalties,

criminal charges, and a costly and burdensome permitting regime—but much contradicts it.

The Agencies have had their chance. Their repeated failures—with rule after rule held unlawful by

5

the courts—show that it is time for this Court to confirm the plurality’s soundly reasoned definition in Rapanos and make clear that the Agencies may not deviate from that definition. If Congress wants to give

the Agencies broader jurisdiction than the current

statute allows, at the expense of the States whose “primary” authority over land and water Congress expressly protected, 33 U.S.C. § 1251(b), it knows how

to do so. Major interference with land-use and traditional local authority over it—especially so vast as

that perpetrated by the Agencies under the CWA—

must rest on a clear statement by Congress, not on

Agency manipulation of a malleable phrase like “significant nexus” that cannot be located anywhere in the

text of the statute.

ARGUMENT

I.

Agriculture bears the brunt of expansive

and ambiguous WOTUS definitions

A.

Broad and unclear WOTUS definitions impose enormous burdens on

agriculture

There are more than 2 million farms and ranches

in the U.S., which use nearly 900 million acres of land

for crops, pasture, or grazing. USDA, Farms and Land

in Farms 4 (Feb. 2020). Those farms and ranches provide domestic food security, employ 20 million people,

contribute $1 trillion each year to our GDP, and export around $150 billion of products annually. Ag and

Food Sectors, supra; USDA, 2020 U.S. Agricultural

Export Yearbook. For amici’s members, whether the

land they farm or for which they produce farm-critical

nutrients includes “waters of the United States” is a

question of enormous practical importance. They need

certainty on that question to adequately manage their

6

land in a financially and environmentally sustainable

manner.

Without clarity about the meaning of WOTUS,

farm operations carry the risk of substantial civil penalties,4 criminal fines and imprisonment for even negligent violations, and costly-to-defend suits by environmental activists. 33 U.S.C. §§ 1319(c), 1365. Avoiding those risks means foregoing all practical use of an

area of a farm that might be WOTUS—for the Agencies may treat even building a fence in a wetland as a

violation of the CWA, let alone moving dirt, spreading

fertilizer, or other active farming. See 58 Fed. Reg.

45,008, 45,020 (Aug. 25, 1993) (the “very low”

“threshold” before “truly de minimis activities” turn

into “adverse effects on any aquatic function” could

preclude even “walking” or “bicycling” through a

jurisdictional feature). A farmer reported, for example, creating a 15-foot buffer around drainage ditches

to ensure that fertilizers or pesticides did not reach

those ditches, which eliminated 5 per cent of his field

from production. Decl. of Robert Reed at ¶ 14, Georgia,

supra (Sept. 26, 2018), Dkt. 208-4.

Alternatively, a landowner must engage in costly

and disruptive dealings with the Corps of Engineers

so that it may determine—based on highly subjective

criteria—whether and where WOTUS is present. That

4 E.g., Borden Ranch P’ship v. U.S. Army Corps of Eng’rs, 261

F.3d 810 (9th Cir. 2000) ($500,000 civil penalty plus wetlands

restoration for plowing in a wetland to change the crop-type

grown), aff’d by equally divided Court, 537 U.S. 99 (2002); Duarte

Nurseries v. U.S. EPA, No. 13-cv-2095 (E.D. Cal. Dec. 8, 2017),

Dkt. 342 ($1 million settlement of agency claim that farming activity disturbed wetlands).

7

process typically requires the landowner to hire professional consultants, and it is complicated by the

Agencies’ history of shifting regulatory positions,

which may make the Corps’ jurisdictional determinations of little value.5 If the Corps concludes that jurisdictional features are present, CWA permitting, mitigation, and compliance costs may be prohibitive. The

costs of obtaining a permit “are significant” and the

process “arduous.” Hawkes, 578 U.S. at 594, 601.

“[O]ver $1.7 billion is spent each year” for wetland

permits. Rapanos, 547 U.S. at 721 (plurality). A jurisdictional determination decreases the value of land by

$600 an acre or more, and mitigation can run to thousands of dollars per linear foot to be developed. Parrish Decl., supra, ¶¶ 43-45. These costs may force a

business to abandon projects or take land out of use.

Id. ¶¶26-30, 33.

The meaning of WOTUS at the margins is particularly fraught for farmers and ranchers. They know

that navigable rivers and their tributaries with permanent flow are protected by federal law. But they

routinely contend with far more ambiguous features,

such as low spots in fields, ditches, drains, stock watering and storage ponds, seasonal features that are

often dry, or ephemeral washes that are almost always dry. Consider the following examples, and the

plight of the farmer faced with deciding if the pictured

features are WOTUS:

5 The Agencies have announced that while jurisdictional deter-

minations they made under the NWPR remain “valid” for the

usual five years, see generally U.S. Army Corps of Eng’rs v.

Hawkes Co., 578 U.S. 590 (2016), jurisdiction for permitting purposes will be redetermined under whatever rule prevails at the

time. EPA, Current Implementation of Waters of the United

States (Dec. 20, 2021).

8

9

10

Farmers and ranchers should not have to guess

whether such features, so far removed from any reasonable concept of navigable waters, are WOTUS.

Current and proposed rules, however, lack clear guidance and may well reach such features.

B.

The Agencies’ latest proposed rule

fails to adhere to the CWA or to provide clear guidance to agriculture

Amici discuss in Part III the legal implications of

the Agencies oft-shifting definitions of WOTUS. But

reviewing just their latest effort—the proposed Revised Definition, 86 Fed. Reg. 69,372 (Dec. 7, 2021)—

shows how unrelated to the statute the Agencies’

claims to regulate land-use have become and how desperate is the need for this Court to supply the clear

standards the Agencies will not. No matter that these

11

rules are not yet final: they illustrate the stunning

breadth of the Agencies’ claimed authority, with federal tentacles reaching deeper and deeper into private

land and into local land- and water-use decisions. Despite warnings from members of this Court, the Agencies have “chose[n] to adhere to [their] essentially

boundless view of the scope of [their] power.” Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring).

1. The physical connection and significant effect standards are hopelessly

vague

The proposed Revised Definition rests on malleable and uncertain concepts that give the Agencies

carte blanche to regulate whatever they like. As a sop

to the Rapanos plurality, the Agencies include as

WOTUS “relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to” navigable or interstate waters or

tributaries. 86 Fed. Reg. at 69,449. But their test is

not the plurality’s. It does not require, for example,

that a feature connect to navigable water—connection

to distant non-navigable tributaries, wetlands, or interstate waters is enough. Id. at 69,434, 69,449. Those

are just the sort of “insubstantial hydrological connections” that the plurality held insufficient for jurisdiction. Rapanos, 547 U.S. at 728.

Even if a farmer could determine whether a feature meets the Agencies’ physical connection standard, the farmer still must wrestle with the alternative

“significant nexus” basis for jurisdiction, which is vaguer still. A feature is WOTUS if “either alone or in

combination with similarly situated waters in the region,” it “significantly affect[s] the chemical, physical,

or biological integrity” of a traditional navigable water

12

or interstate water. 86 Fed. Reg. at 69,449-50. “Similarly situated,” “in the region,” “significantly affects,”

and “chemical, physical, or biological integrity” are

highly ambiguous and potentially extremely expansive concepts.

“Similarly situated” waters that will be lumped together to determine jurisdiction include “waters that

are providing common, or similar functions for downstream water such that it is reasonable to consider

their effect together.” 86 Fed. Reg. at 69,439. That

leaves a farmer uncertain what “functions” are similar enough in type or in magnitude to satisfy this

vague “reasonableness” standard.

The Agencies concede the malleability of the undefined term “in the region.” They could implement

the concept, they say, using “watershed frameworks”

or “an ecoregion which serves as a spatial framework

for the research, assessment, management, and monitoring of ecosystems and ecosystem components.” 86

Fed. Reg. at 69,439-40. A farmer wondering if a low

spot in a field is WOTUS, in other words, needs to look

not just at his or her own land, but at any feature that

might be deemed “similar” located anywhere in a potentially vast and ill-defined area.

“Significantly affect” does not entail true significance. It “means more than speculative or insubstantial effects” on any function of waters or wetlands. And

in applying that minimally-demanding standard the

Agencies look to vague factors like “distance,” “hydrologic factors,” the waters that have been determined

to be “similarly situated,” and “climatological variables.” These undefined and non-exclusive concepts ensure no farmer can ever look at a field and know

whether it contains WOTUS until the Agencies tell

13

him that is what they have determined in the particular case. 86 Fed. Reg. at 69,449.

In combination, these vague concepts could reach

any spot in the Nation that has ever been wet. The

isolated ponds this Court held in SWANCC were not

WOTUS would be WOTUS, because the migratory

birds that used those ponds for breeding and food also

use navigable waters in the same “watershed” or

“ecoregion,” so that the ponds have a more than speculative effect on the “biological integrity” of a navigable water. Cf. 2015 Rule, 80 Fed. Reg. at 37,106 (provision of “life-cycle dependent aquatic habitat” for activities of “breeding” or “feeding” is a “significant

nexus” to navigable water). Ultimately, any effect,

however indirect or tenuous, is enough, and neither

the “significant effect” nor “chemical, physical, or biological integrity” factors are a meaningful constraint

on WOTUS jurisdiction. Together, these obscure definitions put farmers in a situation where they have no

regulatory certainty and few tools to be able on their

own to understand what is a WOTUS and what is a

puddle.

2. Common farm and ranch features

would be treated as WOTUS by the

proposed rule

A few (of many possible) examples from the proposed Revised Definition show the regulatory quagmire that farmers and ranchers face.

Ephemeral drainages. An ephemeral feature is

one in which water flows only in response to precipitation, which in parts of the country may be very

sparse. The 2020 NWPR excluded ephemeral features

from CWA jurisdiction because drainages or washes

that are usually dry cannot properly be described as

14

“waters,” and because this Court in Rapanos recognized that duration, volume, and frequency of flow are

vital to identifying WOTUS and that “any hydrologic

connection” is not enough. 547 U.S. at 784 (Kennedy

J., concurring); see id. at 732 n.5 (plurality) (distinguishing between “a wash and seasonal river”).

In removing that limitation in the proposed Revised Definition, the Agencies again open farmers and

ranchers up to the risk that ephemeral features distant from navigable water will be deemed to be regulated “tributaries” or to have a significant nexus with

navigable waters. See 86 Fed. Reg. at 69,437 (ephemeral waters in the arid west may be jurisdictional under the significant nexus standard). Consistent with

the Rapanos plurality opinion, this Court should tell

the Agencies (again) that ephemeral drainages are

categorically not WOTUS.

Ditches. The Rapanos plurality explained that

“ditches” with “intermittent flow” are not WOTUS.

547 U.S. at 735-736; see id. at 733-34 (“intermittent

or ephemeral flow” found in “drainage ditches” or

“storm sewers and culverts” are not WOTUS). Justice

Kennedy agreed that “ditches” “remote from any navigable-in-fact water” and “carrying only minor water

volumes” are not WOTUS. Id. at 780-782.

The Agencies disagree. The Revised Definition excludes from WOTUS only “ditches constructed wholly

in uplands and draining only uplands with ephemeral

flow.” 86 Fed. Reg. at 69,433 (emphasis added). That

leaves a farmer with drainage ditches—which are

critical to maintaining field conditions and protecting

crop yield—wondering whether a ditch that may have

been constructed decades earlier was created in uplands, and whether its flow will be treated as enough

to make the ditch a WOTUS. This Court should make

15

clear (again) that any ditch that does not contribute

relatively permanent flow to navigable water is not a

WOTUS.

Interstate waters. One perplexing aspect of the

Agencies’ definitions of WOTUS over the years has

been its insistence that non-navigable interstate waters are WOTUS simply by virtue of them crossing

state boundaries, and that a feature’s physical or ecological connection to a non-navigable interstate water

makes that feature also a WOTUS. E.g., 86 Fed. Reg.

at 69,373 (WOTUS include “interstate waters” and

“their adjacent wetlands,” and features that have a

physical connection to interstate waters or have a

“significant effect” on them). In other words, non-navigable interstate waters are treated the same as traditional navigable waters.

That is wrong. As the district court correctly held

in Georgia, “the inclusion of all interstate waters in

the definition of ‘waters of the United States,’

regardless of navigability, extends the Agencies’

jurisdiction beyond the scope of the CWA because it

reads the term navigability out of the CWA.” 418 F.

Supp. 3d at 1358. Applying that ruling—and after

conducting their own exhaustive legal analysis of this

Court’s decisions and the regulatory and legislative

history—the Agencies in the 2020 NWPR removed interstate waters from the definition of WOTUS. See 85

Fed. Reg. at 22,282-86. Yet the Agencies now propose

to restore this legally baseless jurisdiction, which

compounds the problems for farmers trying to comply

with the law. It is time for this Court to make clear

that because navigability must be given some meaning, CWA jurisdiction does not extend to “interstate

waters divorced from any notion of commercial

16

navigability” (or to wetlands adjacent to them). Id. at

22284.

II. The Court in Riverside Bayview, SWANCC,

and Rapanos set forth the test for determining if features are waters of the United

States

The Agencies would substitute interconnectedness to navigable water—a physical connection, or

some effect, of any type or degree—for the legal rules

that must govern their decisions. The Agencies attribute their authority to regulate every nook and cranny

of the Nation to “science.” E.g., 86 Fed. Reg. at 69,373

(rejecting prior administration’s law-based approach,

believing it “diminish[ed] the appropriate role of science”), 69,390-94. But determining the jurisdictional

reach of the CWA is a legal question of statutory construction, not a purely scientific issue. See 85 Fed.

Reg. at 22,271 (“science cannot dictate where to draw

the line between Federal and State or tribal waters,

as those are legal distinctions that have been established within the overall framework and construct of

the CWA”). And the Rapanos plurality, building on

earlier decisions, carefully explained how the statute

must be construed to achieve its goal “to restore and

maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

A. This Court set important limits on the

scope of the Agencies’ authority under

the CWA in Riverside Bayview and

SWANCC

Before Rapanos, this Court made clear that the

term “waters of the United States” in the CWA encompasses more than traditionally navigable waterways,

17

such as certain wetlands, but that Congress’s retention of the “navigable” qualifier in the statute was

meant to impose a meaningful limit on the scope of

federal jurisdiction. Thus, relatively permanent bodies of water are “waters” within the CWA, and adjacent wetlands may be within the reach of federal jurisdiction if they physically abut otherwise covered

waters in such a way that it is difficult to delineate

where a water ends and land begins. The Court also

held that the reach of federal jurisdiction is necessarily restricted by the CWA’s purpose to preserve the

States’ rights and responsibilities concerning pollution abatement and land and water use and planning,

so that an interpretation of the statute that markedly

infringes on those state prerogatives is inconsistent

with Congress’s aims.

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

the Court examined whether the Agencies were allowed to require a permit under CWA Section 404(a)

to place fill materials on a wetland adjacent to a lake.

In determining whether wetlands were within federal

authority, the Court stated that the CWA requires the

Agencies to “choose some point at which water ends

and land begins.” 474 U.S. 121, 132 (1985). The Court

acknowledged that this is “no easy task” because “between open waters and dry land may lie shallows,

marshes, mudflats, swamps, bogs, in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land.” Ibid.

The Court concluded that Congress intended to

permit the Agencies to exercise jurisdiction over some

wetlands: those that are “adjacent” to covered waters.

The Court reasoned that the focus of the statute is on

“maintaining and improving water quality,” and to

serve that interest the CWA prohibits discharges into

18

“navigable waters.” Id. at 132-133. In defining “navigable waters” as WOTUS, “Congress evidently intended to repudiate limits that had been placed on

federal regulation by earlier water control statutes

and to exercise its powers under the Commerce

Clause to regulate at least some waters that would not

be deemed ‘navigable’ under the classical understanding of that term.” Id. at 133. Those non-navigable waters include some wetlands. Ibid.

Still, though the term “navigable” in “navigable

waters” “is of limited import,” Congress did not intend

“to abandon traditional notions of ‘waters’ and include

in that term ‘wetlands’ as well.” Ibid. To determine

which wetlands could be included as “waters,” the

Court explained that wetlands adjacent to navigable

waters “play a key role in protecting and enhancing

water quality” if they are “inseparably bound up with”

a covered water. Id. at 133-134. Accordingly, the CWA

applies to wetlands that are “adjacent to water as

more conventionally defined.” Id. at 133 (emphasis

added). The Court specified that covered waters include “open waters” such as “rivers, streams, and

other hydrographic features more conventionally

identifiable as ‘waters.’” Id. at 131-132.

In SWANCC, the Court invalidated the “migratory bird rule” under which the Agencies purported to

exercise Section 404(a) jurisdiction over an abandoned

sand and gravel pit that provided habitat for certain

birds. This decision rested in part on the Court’s

recognition that the scope of the CWA is limited by the

statutory purpose to preserve the rights and responsibilities of States to prevent pollution and to plan land

use and development. 531 U.S. at 166, 172-173; see 33

U.S.C. § 1251(b); 85 Fed. Reg. at 22,254, 22,262. State

authority in these areas is a core aspect of state

19

sovereignty, FERC v. Mississippi, 456 U.S. 742, 767

n.30 (1982), and agency intrusion into it violates the

Tenth Amendment. Hodel v. Va. Surface Mining and

Reclamation Ass’n, 452 U.S. 264, 286-87 (1981).

The Court held that “[w]here an administrative

interpretation of a statute invokes the outer limits of

Congress’ power, we expect a clear indication that

Congress intended that result.” SWANCC, 531 U.S. at

172. “This concern is heightened where the

administrative interpretation alters the federal-state

framework by permitting federal encroachment upon

a traditional state power.” Id. at 173. The Court found

no such clear indication in the CWA: “Rather than expressing a desire to readjust the federal-state balance

in this manner, Congress chose to ‘recognize, preserve, and protect the primary responsibilities and

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

* * * of land and water resources.’” Id. at 174. Therefore, the CWA must be read “to avoid the significant

constitutional and federalism questions raised” by an

expansive interpretation of the Agencies’ jurisdiction

that would intrude on these traditional areas of state

power. Ibid.

The Court also determined that the CWA is

“clear” and does not permit the exercise of federal jurisdiction over “nonnavigable, isolated, intrastate waters.” Id. at 172. In reaching that decision, the Court

acknowledged that Riverside Bayview approved the

exercise of jurisdiction “over wetlands that actually

abutted on a navigable waterway.” 531 U.S. at 167

(emphasis added). The Court explained that “[i]t was

the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA

in Riverside Bayview” but that holding did not extend

to wetlands or isolated waters “that are not adjacent

20

to bodies of open water.” Ibid. Although Riverside

Bayview noted that the term “navigable” was of “limited import,” that term still “has at least the import of

showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction

over waters that were or had been navigable in fact or

which could reasonably be so made.” Id. at 172.

B. The Rapanos plurality correctly applied

the limiting principles from Riverside

Bayview and SWANCC to define the

scope of the Agencies’ jurisdiction

In Rapanos, the plurality and Justice Kennedy

agreed that “the qualifier ‘navigable’ is not devoid of

significance.” 547 U.S. at 731 (plurality); id. at 778

(Kennedy, J.) (“the word ‘navigable’ in ‘navigable

waters’ [must] be given some importance”). They also

agreed that the CWA reaches some waters and

wetlands that are not navigable-in-fact but have a

substantial connection to navigable waters. Id. at 739,

742 (plurality); id. at 784-85 (Kennedy, J.). And they

agreed that “environmental concerns provide no

reason to disregard limits in the statutory text.” Id. at

778 (Kennedy, J.); id. at 748-749 (plurality) (“total deference to the Corps’ ecological judgmen[t] would permit the Corps to regulate the entire country as ‘waters

of the United States’”).

Applying the plain language of the statute and the

holdings of Riverside Bayview and SWANCC, the Rapanos plurality concluded that WOTUS encompasses

“only relatively permanent, standing or flowing bodies

of water” and that it cannot include “transitory puddles or ephemeral flows of water.” Id. at 732-733 (plurality); see id. at 739 (WOTUS “includes only those

relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that

21

are described in ordinary parlance as ‘streams[,] * * *

oceans, rivers, [and] lakes’”). Indeed, because “navigable” “carries some of its original substance,” a WOTUS

must “at bare minimum,” include “the ordinary presence of water.” Id. at 734 (plurality). Both Riverside

Bayview and SWANCC described “navigable waters”

as “open waters”; thus typically dry channels, which

unquestionably are not open waters, cannot be considered navigable waters under the statute. Id. at 735.

And as SWANCC recognized, extending federal jurisdiction to intermittent or ephemeral flows would impinge the States’ rights and responsibilities in the absence of a clear statutory indication that Congress intended to do so. Id. at 737-738. WOTUS therefore

“does not include channels through which water flows

intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Id. at 739.

Turning to the question of wetland adjacency to a

covered water, the Rapanos plurality explained that

Riverside Bayview extended WOTUS to some wetlands because of the “difficulty of delineating the

boundary between water and land.” Id. at 740. The

plurality also stated that SWANCC described the

close connection of a wetland that “gradually blend[s]”

into a covered water as a “significant nexus.” Id. at

741. But without the “actual abutment” of a wetland

to an open, navigable water present in Riverside

Bayview, there is “no boundary-drawing ambiguity”

and therefore no justification for calling a wetland a

water. Id. at 748-749. Wetlands that have only an intermittent, physically remote hydrologic connection to

a navigable water are not covered because they “do not

implicate the boundary drawing problem of Riverside

Bayview” and therefore do not have the “significant

nexus” required by SWANCC. Id. at 742. Wetlands do

have the requisite “significant nexus” when their

22

“physical connection” to a covered, open water “makes

them as a practical matter indistinguishable from waters of the United States.” Id. at 755.

The plurality further reasoned that physical connectedess to a covered water (so that it is difficult to

tell where the water ends and the wetland begins),

and not ecological significance to a water, must be the

rule, because Riverside Bayview stated that the CWA

could reach physically connected wetlands “lacking in

importance to the aquatic environment.” Id. at 747

(citing Riverside Bayview, 474 U.S. at 135 n.9). Similarly, the plurality explained that SWANCC found

ecological connections irrelevant to the question of

whether physically isolated waters were within the

Agencies’ jurisdiction. Id. at 742 (citing SWANCC, 531

U.S. at 167, 171). In its straightforward application of

these holdings, the plurality concluded that wetlands

that do not have a continuous surface connection to a

covered water are not within the Agencies’ power because there is no difficulty in those cases “to determine where the ‘water’ ends and the ‘wetland’ begins”

and ecological considerations cannot substitute for

such a connection. Id. at 742.

III. The Agencies deserve no deference for their

revolving definitions of WOTUS

As the Rapanos plurality explained, the statutory

term “waters” is at its core clear, not ambiguous, and

constrains how the Agencies may define WOTUS. It

does leave some leeway to define, for example, the line

between relatively permanent, intermittent, and

ephemeral waters—but that discretion is further limited by the need to give the term “navigable” some importance, by Congress’s policy to preserve the States’

authority over land- and water- use, and by structural

features of the CWA. See 85 Fed. Reg. at 22,252-54

23

(examining structural features of the Act delineating

federal and state roles).

Within the areas where the Agencies do have discretion to define WOTUS by rule, they also may

change their mind. FCC v. Fox Television Stations,

Inc., 556 U.S. 502, 514 (2009); Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,

981 (2005). When an agency changes direction, it must

provide a “reasoned explanation” for doing so. Encino

Motorcars, LLC v. Navarro, 579 U.S. 211, 221-222

(2016). There is, however, a difference between the

reasoned exercise of discretion to change direction and

inconsistent flip-flopping to try to maximize the federal reach regardless of statutory language, context,

and precedent. In the case of WOTUS, the Agencies’

actions over decades show they have forfeited any

claim to deference and need to be told plainly by this

Court how to interpret the Act.

1. The Agencies have demeaned this Court’s rulings at every step. They treated Riverside Bayview as

saying nothing about the limits of adjacency, and

SWANCC as merely striking down the migratory bird

rule. See 85 Fed. Reg. at 22,256. They made a mockery

of the Rapanos plurality’s “relatively permanent”

standard by defining it to include low flow for a few

months, and looked to a highly distorted reading of

Justice Kennedy’s lone concurrence to reach remote,

desiccated features. They sought to insulate their

case-by-case jurisdictional determinations from judicial review (Sackett v. EPA, 566 U.S. 120 (2012);

Hawkes), and they now say that jurisdictional determinations are largely worthless anyway. See supra

n.6. Only clear direction from this Court can end this

game of cat-and-mouse, in which the regulated community are the losers.

24

2. The regulatory history shows that the Agencies

are playing games designed to aggrandize their own

power, not faithfully seeking a clear and durable definition of WOTUS.

For a decade after Rapanos, the Agencies failed to

produce any rule at all, promulgating instead “guidance” that failed to guide. See U.S. EPA, Memo, Clean

Water Act Jurisdiction Following the U.S. Supreme

Court’s Decision in Rapanos v. United States &

Carabell v. United States 1 (Dec. 2, 2008) (asserting

jurisdiction over navigable waters and their adjacent

wetlands,

relatively

permanent

nonnavigable

tributaries of navigable waters and wetlands that

abut them, nonnavigable tributaries that have a

significant nexus with a navigable water, and

wetlands adjacent to them that have such a significant nexus). That guidance—to which the Agencies

have currently reverted pending finalization of their

new rule—could well reach all of the features pictured

at pp. 8-10, supra, but provided no clear principle to

make that determination.

At the urging of the regulated community and

States seeking clearer standards, the Agencies promulgated a rule defining WOTUS in 2015. But far from

increasing clarity, that rule introduced expansive and

arbitrary concepts that are impossible to locate either

in the CWA or in this Court’s precedent. For example,

the 2015 Rule:



defined a jurisdictional tributary to include

features that contribute flow to a navigable

or interstate water as indicated by the presence of a bed and bank and ordinary high

water mark (OHWM) (80 Fed. Reg. at

37,105)—even though a single rain event in

the arid west can create a bed, bank and

25

OHWM—without regard to whether the

flow is “perennial, intermittent, or

ephemeral” or of any specific volume or frequency or duration (id. at 37,076);



introduced an arbitrary definition of an

“adjacent” feature that is jurisdictional because any part of it is located within 100

feet of the OHWM of a navigable or interstate water or tributary, or is located within

the 100-year floodplain of and not more

than 1,500 feet from such a water;



arbitrarily applied a case-by-case significant nexus analysis to any feature located

within the 100-year floodplain of any navigable or interstate water and any feature

located within 4,000 feet of the OHWM of

such waters or their tributaries;6 and

 defined ‘‘significant nexus’’ to mean a feature that alone or in combination with

other similarly situated waters within the

same watershed had more than a speculative or insubstantial effect on the chemical,

physical, or biological integrity of navigable

or interstate water. Id. at 37,106.

Unsurprisingly, these arbitrary, vague, but expansive definitions did not pass muster with the

courts. The 2015 Rule was stayed nationwide by the

Sixth Circuit, because it was “far from clear” that it

The Agencies acknowledged that ‘‘the vast majority of the

nation’s water features are located within 4,000 feet of a covered

tributary, traditional navigable water, interstate water, or

territorial sea.’’ U.S. EPA and Department of the Army,

Economic Analysis of the EPA-Army Clean Water Rule 11 (May

20, 2015).

6

26

could be squared with even the most generous reading

of this Court’s precedent. In re EPA, 803 F.3d 804, 807

(6th Cir. 2015), vacated, 713 Fed. App’x 489 (6th Cir.

2018). After the Sixth Circuit lost jurisdiction (see

NAM, supra), district courts issued preliminary

injunctions covering more than half of the country.

The District Court in North Dakota enjoined the

rule in 13 States because plaintiffs were “likely to

succeed on the merits of their claim that the EPA has

violated its grant of authority.” North Dakota v. EPA,

127 F. Supp. 3d 1047, 1051 n.1, 1055 (D.N.D. 2015).

Enjoining the 2015 Rule in another 11 States, the

Southern District of Georgia agreed that it was

“plague[d]” by the “fatal defect” that it reached drains,

ditches, and streams “remote from any navigable-infact” water. Georgia v. Pruitt, 326 F. Supp. 3d 1356,

1364-65 (S.D. Ga. 2018) (quoting Rapanos, 547 U.S. at

781 (Kennedy, J., concurring)). The Southern District

of Texas enjoined the Rule in another three States.

AFBF, supra n.4. Accordingly, the rule was enjoined

in 27 States.

Ultimately, district courts in Texas and Georgia

held the 2015 Rule unlawful. The Texas court

concluded that it “‘is not sustainable on the basis of

the administrative record’” and remanded it to the

Agencies. Texas v. EPA, 389 F. Supp. 3d 497, 506 (S.D.

Tex. 2019). The Georgia court held that asserting

jurisdiction over all “interstate waters” impermissibly

reads the term “navigable” out of the statute; the

“tributary” definition extended federal jurisdiction

beyond that allowed under the CWA; and asserting

jurisdiction over all waters “adjacent” to all

tributaries was an impermissible construction.

Georgia, 418 F. Supp. 3d at 1363-68. And it held that

“the WOTUS Rule’s vast expansion of jurisdiction

27

over waters and land traditionally within the states’

regulatory authority” constituted a “substantial

encroachment” into state power that “cannot stand

absent a clear statement from Congress.” Id. at 1370,

1372. The court remanded the Rule to the Agencies

because, recognizing its serious shortcomings, the

Agencies had by then begun to reconsider it in new

rulemakings.

That series of failures in court is part of the

backdrop to the Agencies’ decision to promulgate a

narrower and more certain rule in 2020, the NWPR,

that much more closely hewed to the Rapanos plurality opinion. 85 Fed. Reg. at 22,250. But some States

and environmental groups challenged the NWPR, and

although the Agencies asked for remand without vacatur in light of their plans to revisit the rule, two

courts remanded the NWPR with vacatur. Pascua Yaqui Tribe v. EPA, No. 20-cv-00266, 2021 WL 3855977

(D. Ariz. Aug. 30, 2021); Navajo Nation v. Regan, No.

20-cv-602, 2021 WL 4430466 (D.N.M. Sept. 27, 2021).

The Agencies acquiesced nationwide in those rulings,

reverted to the flawed 2008 Guidance (see EPA, Current Implementation of Waters of the United States

(Dec. 20, 2021)), and proposed the equally flawed 2021

Rule, described in Part II. And if that rule is ever finalized, it too will be challenged because it is no more

authorized by the CWA than the 2015 Rule that was

held unlawful.

This pirouetting over the meaning of WOTUS—

Agencies alternately stretching to expand their jurisdiction or trying to craft a narrower and clearer rule,

and courts holding every rule unlawful—is untenable

in a rule that controls, in the agricultural sector alone,

the use of nearly a billion acres of land and carries

huge civil penalties and jail time for violations. And it

28

leads one to ask what possible claim to deference the

Agencies could have given this history of failure. This

Court’s reaffirmation of the Rapanos plurality’s

WOTUS standard, and its rejection of any “significant

nexus” standard for lack of any support in the text of

the CWA, would bring this debacle to an end.

3. The breadth given to the term “waters of the

United States” by the Agencies in 2008, 2015, and

their new proposal has all the hallmarks of a major

question of “‘vast economic and political significance.’”

Ala. Ass’n of Realtors v. Dep’t of Health and Human

Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam). The

definition of WOTUS results in the direct regulation

of private conduct under which land users must obtain

permits or face severe civil and criminal liability.

Each expansion of WOTUS “cast[s] doubt on the full

use and enjoyment of private property throughout the

Nation.” Hawkes, 136 S. Ct. at 1817 (Kennedy, J., concurring). Each expansion also federalizes decisions

about local land and water use that traditionally lie

within the power of the States—a power that Congress explicitly intended the CWA to preserve and

protect. SWANCC, 531 U.S. at 172. And each expansion invokes the limits of Congress’s powers under the

Commerce Clause. Ibid. By promulgating definitions

of WOTUS that give themselves “essentially limitless”

power over land use nationwide (Rapanos, 547 U.S. at

757 (Roberts, C.J., concurring)), the Agencies have

distorted our federalism, infringed on private property rights, and micromanaged the conduct of a majority of rural land users. Determining what land and

water features are WOTUS falls easily within the

range of decisions that this Court has deemed to be

“major questions.” See, e.g., Utility Air Regulatory

Grp. v. EPA, 573 U.S. 302, 324 (2014) (holding a major

question to be involved when EPA findings under the

29

Clean Air Act would “require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide”).

Before an agency can decide major questions of

this sort, “the Act [must] plainly authoriz[e]” the

agency’s action. Nat’l Fed’n of Indep. Bus. v. Dep’t of

Labor, 142 S. Ct. 661, 665 (2022) (NFIB). The CWA

plainly authorizes the Agencies to regulate “waters” of

the United States, and ties that term to the defined

phrase, “navigable waters.” The plurality in Rapanos

explained what that means.

The CWA does not plainly authorize the Agencies

to assert jurisdiction over ditches, intermittent

streams, ephemeral drainages, interstate ponds, or

wet areas that are connected to navigable waters only

by virtue of some “chemical, physical, or biological”

nexus. The major questions doctrine means that the

Agencies may not regulate those features and thereby

make unauthorized decisions with grave economic

and political consequences. See NFIB, 142 S. Ct. at

668 (Gorsuch, J., concurring) (“administrative agencies [that] seek to regulate the daily lives and liberties

of millions of Americans * * * must at least be able to

trace that power to a clear grant of authority from

Congress”). Indeed, the long history of the Agencies’

aggrandizement of their own power in this area makes

this a classic case for application of the major questions doctrine, because the Agencies have “assume[d]

responsibilities far beyond [their] initial assignment.”

Id. at 669 (Gorsuch, J., concurring).

In fact, were the meaning of the term “waters of

the United States” not reasonably clear from the language Congress used, the context of that language,

the structure of the CWA, and the constitutional back-

30

ground of federalism and property rights, the non-delegation doctrine would surely be triggered. Once the

Rapanos plurality’s conclusions based on standard

principles of statutory interpretation are abandoned

—as the Agencies abandoned them in their 2008

Guidance, 2015 Rule, and current proposed rule—

there is no “intelligible principle” left to guide their

rulemaking. Our Constitution’s core principle of separation of powers prohibits such “intrusions into the

private lives and freedoms of Americans by bare

edict,” allowing them “only with the consent of their

elected representatives.” Id. at 669 (Gorsuch, J., concurring); see also Dep’t of Transp. v. Ass’n of Am.

R.R.s, 575 U.S. 43, 61 (2015) (Alito, J., concurring).

Reaffirming the Rapanos plurality’s clear interpretation of WOTUS avoids the “significant constitutional

questions” that would otherwise arise under the nondelegation doctrine. SWANCC, 531 U.S. at 173.

For 50 years now, bar the aberration of the vacated 2020 NWPR, “EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited

definition of the phrase [‘waters of the United

States’].’’ Sackett, 566 U.S. at 133 (Alito, J., concurring). Enough is enough. Traditional tools of statutory

construction supply a core of clear meaning, far narrower than what the Agencies keep reaching for,

which this Court should enforce.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

31

ELLEN STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Ave SW

Suite 1000W

Washington, DC 20024

TIMOTHY S. BISHOP

Counsel of Record

BRETT E. LEGNER

Mayer Brown LLP

71 South Wacker Drive

Chicago, Illinois 60606

(312) 782-0600

tbishop@mayerbrown.com

MICHAEL C. FORMICA

National Pork Producers

Council

122 C Street NW

Suite 875

Washington, DC 20001

NORMAN M. SEMANKO

Parsons Behle & Latimer

800 West Main Street

Suite 1300

Boise, ID 83702

Counsel for Family

Farm Alliance

MARLIS L. CARSON

National Council of

Farmer Cooperatives

50 F Street, NW

Suite 900

Washington, DC 20001

Counsel for Amici Curiae

APRIL 2022

32

ADDENDUM

DESCRIPTION OF THE AMICI CURIAE

Each amicus advocates for regulatory standards

and policies that enable the success of the industry

members they represent. The amici are as follows:

American Farm Bureau Federation (AFBF),

https://www.fb.org, is the “voice of agriculture” formed

to represent farm and ranch families.

The American Sheep Industry Association

(ASI), https://www.sheepusa.org, is the national trade

association representing the 100,000 farms and

ranches that produce America’s lamb and wool).

American Soybean Association (ASA), www.

soygrowers.com, represents U.S. soybean farmers on

domestic and international policy issues important to

the soybean industry. ASA has 26 affiliated state associations representing 30 soybean-producing states

and more than 500,000 soybean farmers.

American Sugar Alliance (ASA), https://sugaralliance.org, represents the more than 11,000 sugarcane and sugarbeet farmers in the United States as

well as the employees in our mills, processors, and refineries. ASA is dedicated to preserving a strong domestic sugar industry.

Family Farm Alliance (Alliance), https://

www.familyfarmalliance.org, is a grassroots, nonprofit organization composed of family farmers,

ranchers, irrigation districts, and allied industries in

16 Western States. The Alliance’s mission is to ensure

the availability of reliable and affordable irrigation

water supplies to Western farmers and ranchers.

National Association of Wheat Growers

(NAWG), https://wheatworld.org/, works with its 20

33

affiliated state associations and many coalition partners on issues as diverse as federal farm policy, environmental regulation, the future commercialization of

emerging technologies in wheat, and uniting the

wheat industry around common goals.

National Corn Growers Association (NCGA),

https://www.ncga.com, represents nearly 40,000 corn

farmers nationwide and the interests of more than

300,000 growers with the mission “to create and increase opportunities for corn growers to help them

sustainably feed a growing world.”

National Cotton Council (NCC), https://www.

cotton.org, is the unifying force of the U.S. cotton industry, bringing together representatives from the

seven industry segments in the 17 cotton-producing

states of the Cotton Belt to ensure the ability to compete effectively and profitably in the raw cotton,

oilseeds and U.S.-manufactured products market at

home and abroad.

The members of the National Council of

Farmer Cooperatives (NCFC), https://ncfc.org, are

regional and national farmer cooperatives, which handle, process, and market almost every type of agricultural commodity; furnish farm supplies; and provide

credit and related financial services, including export

financing.

National Pork Producers Council (NPPC),

http://nppc.org/about-us, is the global voice for the Nation’s 60,000 pork producers with the mission to

“fight[] for reasonable legislation and regulations”

that protect the livelihood of pork producers.

The Fertilizer Institute (TFI), https://www.

tfi.org, represents the nation’s fertilizer industry, including producers, importers, retailers, wholesalers

34

and companies that are engaged in all aspects of the

fertilizer supply chain. Fertilizer is a key ingredient

in feeding a growing global population, which is expected to surpass 9.5 billion people by 2050. Half of

all food grown around the world today is made possible through the use of fertilizer.

United Egg Producers (UEP), https://

unitedegg.com, is the advocate for the needs and interests of U.S. egg producers responsible for more

than 90 percent of all eggs produced in the U.S, and

provides industry leadership and member services related to animal well-being and hen housing, biosecurity and disease prevention, environment, food safety

and government relations.

USA Rice Federation (USARF), https://www.

usarice.com, is the global advocate for all segments of

the U.S. rice industry with the mission to ensure the

health and vitality of a unified U.S. rice industry by

advocating on behalf of farmers, millers, merchants,

and allied businesses.

U.S. Poultry & Egg Association (USP&E),

https:// www.uspoultry.org, is the world’s largest and

most active poultry organization with the mission to

serve as the voice for the feather industries.