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, et al.,

Respondents.

——————

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF WEST

VIRGINIA AND 25 OTHER STATES

IN SUPPORT OF PETITIONERS

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

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

Question Presented .............................................................. I

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

Introduction .......................................................................... 2

Summary of Argument ........................................................ 4

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

I.

The Significant Nexus Test Offends

Traditional State Authority ......................................... 5

II. The Significant Nexus Test Conflicts

With The CWA’s Text................................................. 13

III. The Significant Nexus Test Presents

Serious Constitutional Concerns ............................... 18

IV. The Significant Nexus Test Burdens

Both States and the Public ......................................... 21

Conclusion ........................................................................... 28

III

TABLE OF AUTHORITIES

Page(s)

Cases

Addington v. Texas,

441 U.S. 418 (1979) ......................................................... 9

Alden v. Maine,

527 U.S. 706 (1999) ......................................................... 5

Am. Farm Bureau Fed’n v. EPA,

792 F.3d 281 (3d Cir. 2015) .......................................... 10

Am. Paper Inst., Inc. v. EPA,

890 F.2d 869 (7th Cir. 1989) ........................................... 9

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ......................................................... 27

Bergen Cnty. Assocs. v. Borough of

E. Rutherford,

12 N.J. Tax 399 (N.J. Tax. Ct. 1992) ........................... 22

Bond v. United States,

572 U.S. 844 (2014) ..................................................... 6, 7

California v. United States,

438 U.S. 645 (1978) ......................................................... 8

Citizens Bank v. Alafabco, Inc.,

539 U.S. 52 (2003) ......................................................... 19

Cnty. of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ........................................... 2, 3, 11

Comm’r v. Gordon,

391 U.S. 83 (1968) ......................................................... 14

The Daniel Ball,

77 U.S. 557 (1870) ......................................................... 17

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

District of Columbia v. Schramm,

631 F.2d 854 (D.C. Cir. 1980) ........................................ 9

FERC v. Mississippi,

456 U.S. 742 (1982) ......................................................... 7

First Iowa Hydro-Elec. Co-op.

v. Fed. Power Comm’n,

328 U.S. 152 (1946) ......................................................... 7

Gonzales v. Raich,

545 U.S. 1 (2005) ........................................................... 20

Gregory v. Ashcroft,

501 U.S. 452 (1991) ......................................................... 7

Healy v. Ratta,

292 U.S. 263 (1934) ......................................................... 6

Hudson Cnty. Water Co. v. McCarter,

209 U.S. 349 (1908) ......................................................... 7

Hui v. Castaneda,

559 U.S. 799 (2010) ....................................................... 14

Jones v. United States,

529 U.S. 848 (2000) ......................................................... 6

Maryland v. Wirtz,

392 U.S. 183 (1968) ....................................................... 20

McDonnell v. United States,

136 S. Ct. 2355 (2016) ..................................................... 6

Mellouli v. Lynch,

575 U.S. 798 (2015) ....................................................... 18

V

TABLE OF AUTHORITIES

(continued)

Page(s)

Miss. Comm’n on Nat. Res. v. Costle,

625 F.2d 1269 (5th Cir. 1980) ....................................... 13

Nat’l Ass’n of Home Builders v.

Defs. of Wildlife,

551 U.S. 644 (2007) ....................................................... 18

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ....................................................... 19

Nat’l Wildlife Fed’n v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) ........................................ 9

New York v. United States,

505 U.S. 144 (1992) ............................................... 5, 8, 20

NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) ........................................................... 20

Rapanos v. United States,

547 U.S. 715 (2006) ............................2, 4, 10, 11, 12, 13,

14, 16, 17, 18, 19, 21, 22, 24

S. Cal. All. of Publicly Owned Treatment

Works v. EPA,

8 F.4th 831 (9th Cir. 2021) ........................................... 24

S.D. Warren Co. v. Maine Bd. of Env’t

Prot.,

547 U.S. 370 (2006) ......................................................... 9

Sackett v. EPA,

566 U.S. 120 (2012) ....................................................... 24

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) ..................................................... 5, 6

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Solid Waste Agency of N. Cook Cnty.

v. U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .................... 10, 14, 15, 16, 17, 18, 23

Sporhase v. Nebraska ex rel. Douglas,

458 U.S. 941 (1982) ......................................................... 8

Tarrant Reg’l Water Dist. v. Herrmann,

569 U.S. 614 (2013) ......................................................... 7

Taylor v. United States,

579 U.S. 301 (2016) ....................................................... 20

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) ............................................. 3, 24, 27

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140 S. Ct. 1837 (2020) ..................................................... 7

United States v. Bass,

404 U.S. 336 (1971) ......................................................... 7

United States v. HVI Cat Canyon, Inc.,

314 F. Supp. 3d 1049 (C.D. Cal. 2018) .......................... 3

United States v. Lopez,

514 U.S. 549 (1995) ....................................................... 20

United States v. Lucero,

989 F.3d 1088 (9th Cir. 2021) ....................................... 19

United States v. Mills,

817 F. Supp. 1546 (N.D. Fla. 1993) ............................. 21

United States v. Morrison,

529 U.S. 598 (2000) ....................................................... 20

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. New Mexico,

438 U.S. 696 (1978) ......................................................... 8

United States v. Palomar-Santiago,

141 S. Ct. 1615 (2021) ................................................... 18

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985) ................................................. 15, 16

Universal Welding & Fabrication, Inc. v.

U.S. Army Corps of Eng’rs,

No. 4:14-CV-00021-TMB,

2015 WL 12661934

(D. Alaska Oct. 1, 2015) .................................................. 3

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ........................................................... 7

Wis. Dep’t of Health & Fam. Servs.

v. Blumer,

534 U.S. 473 (2002) ......................................................... 6

Statutes

33 U.S.C. § 1251 .................................................... 1, 8, 14, 18

33 U.S.C. § 1311 .............................................................. 8, 25

33 U.S.C. § 1315 .................................................................. 25

33 U.S.C. § 1341 .................................................................. 25

33 U.S.C. § 1342 .................................................................. 24

33 U.S.C. § 1344 .............................................................. 2, 25

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

33 U.S.C. § 1362 ........................................................ 2, 10, 17

Regulations

33 C.F.R. § 209.120(d)(1) (1974) ........................................ 15

Other Authorities

Andrea Driggs, et al., Just Add Water:

Permitting, State Sovereignty, and the

Marble Cake Debate,

35 NAT. RES. & ENV’T 45 (2020) ................................. 11

ARIZ. DEP’T OF ENV’T QUALITY, CLEAN

WATER ACT § 404 PROGRAM

TECHNICAL WORKING GROUP – FEES

WHITE PAPER (Dec. 20, 2018) ..................................... 26

CHERYL BARNES, ET AL., CLEAN WATER

ACT IMPLEMENTATION: REVISITING

STATE RESOURCE NEEDS (2019) ................................ 26

Comments of the Waters Advocacy

Coalition on the Environmental

Protection Agency’s and U.S. Army

Corps of Engineers’ Proposed Rule to

Define “Waters of the United States”

Under the Clean Water Act, EPA-HQOW-2011-0880 (Nov. 13, 2014) .................................... 12

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Dan Bosch, The Biden WOTUS: Breadth

and Uncertainty, AMERICAN ACTION

FORUM: INSIGHT (Nov. 19, 2021) ................................ 21

Editorial Staff, Regulations are all wet,

AUGUSTA CHRONICLE

(Feb. 11, 2019, 5:01 PM)............................................... 24

ENV’T PROT. AGENCY, OFF. GEN.

COUNSEL, MEANING OF THE TERM

“NAVIGABLE WATERS”

(Feb. 13, 1973) (1973 WL 21937) ................................. 15

THE FEDERALIST NO. 39 ..................................................... 5

Hunter S. Higgins, Deference, Due

Process, and the Definition of Water:

Dredging the Clean Water Act,

20 U. DENV. WATER L. REV. 305 (2017) ..................... 26

Kenneth S. Gould, Drowning in Wetlands

Jurisdictional Determination Process:

Implementation of Rapanos v. United

States,

30 U. ARK. LITTLE ROCK L. REV. 413 (2008) ............. 23

Lakshmi Lakshmanan, The Supreme Court

Wades Through the Clean Water Act to

Determine What Constitutes the

“Waters of the United States,”

14 MO. ENV’T L. & POL’Y REV. 371

(2007) .............................................................................. 27

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Lawrence R. Liebesman, et al., Rapanos v.

United States: Using Proximate

Causation and Foreseeability

Principles to Save a CWA Flawed

Jurisdictional Process,

AM. LAW INST. (2010) ................................................... 15

Natalia Cabrera, Using HGM Analysis to

Aggregate Wetlands as ‘Similarly

Situated’ Under the Rapanos

‘Significant Nexus’ Test,

42 B.C. ENV’T AFF. L. REV. 65 (2015) ......................... 22

OFF. OF MGMT. & BUDGET, EPA ICR NO.

0229.21, ICR SUPPORTING STATEMENT,

INFORMATION COLLECTION REQUEST

FOR NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM (NPDES)

PROGRAM (RENEWAL) (Dec. 2015).............................. 25

OFF. OF MGMT. & BUDGET, EPA ICR NO.

0229.25, ICR SUPPORTING STATEMENT:

INFORMATION COLLECTION REQUEST

FOR NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM (NPDES)

PROGRAM (RENEWAL) (July 2021) .............................. 25

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

Robin Kundis Craig, Adapting Water

Federalism to Climate Change

Impacts: Energy Policy, Food

Security, and the Allocation of Water

Resources,

5 ENV’T & ENERGY L. & POL’Y J. 183

(2010) ................................................................................ 8

Roni A. Elias, Waters of the United States,

52 TULSA L. REV. 57 (2016) ......................................... 11

Ryan P. Murphy, Did We Miss the Boat?

The Clean Water Act and

Sustainability,

47 U. RICH. L. REV. 1267 (2013) ................................. 10

Sam Kalen, Is “Significant Nexus” Really

Significant? Justice Kennedy’s

Concurrence in Rapanos,

NAT. RES. & ENV’T, SUMMER 2007 ............................. 14

VA. DEP’T OF ENV’T. QUALITY, STUDY OF

THE COSTS AND BENEFITS OF STATE

ASSUMPTION OF THE FEDERAL § 404

CLEAN WATER ACT PERMITTING

PROGRAM (Dec. 2012) ................................................... 25

INTERESTS OF AMICI CURIAE

The amici States of West Virginia, Alabama, Arizona,

Arkansas, Florida, Georgia, Idaho, Indiana, Kansas,

Kentucky, Louisiana, Mississippi, Missouri, Montana,

Nebraska, New Hampshire, North Dakota, Ohio,

Oklahoma, South Carolina, South Dakota, Tennessee,

Texas, Utah, Virginia, and Wyoming have a sovereign

interest in safeguarding their land and water resources.

They act as stewards of the environment within their

borders, and they own and care for millions of acres of land

themselves. At the same time, the States also have a

strong interest in ensuring that federal preferences do not

entirely swallow state and local ones, even in the

environmental context.

After all, “[t]he vertical

separation of powers between the national government

and the States”—paired with the horizontal separation

among the federal branches—“provide[s] the soundest

protection of liberty any people has known.” JEFFREY S.

SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE

MAKING OF AMERICAN CONSTITUTIONAL LAW 11 (2018).

The decision below threatens both these interests. By

construing the Clean Water Act to reach places with only

tenuous connections to navigable, interstate waters, the

Ninth Circuit’s approach would saddle States with

implementing a vast scheme of federal water regulation.

States’ own efforts at conservation, tailored to local needs,

would fall by the wayside. Federalism would become an

afterthought, too, even though Congress wrote the CWA

to “recognize, preserve, and protect the primary

responsibilities and rights of States” to mitigate pollution

and “develop[] and use” water resources. 33 U.S.C.

§ 1251(b). If the CWA applies to any damp piece of land

with an indeterminate “nexus” to interstate waters, then

the Constitution’s and the statute’s balance among the

2

sovereigns will come askew. The Court should restore the

CWA to its proper position—complementing States’

water-conservation efforts instead of displacing them.

INTRODUCTION

When Michael and Chantell Sackett set out to build a

house on a piece of land in Idaho’s panhandle, they

probably could not have imagined that they were igniting

a decade-plus power struggle with the federal

government. Back in 2004, the Sacketts had secured

necessary local permits and were ready to start

construction when federal regulators descended on their

property. The land, officials told the Sacketts, might

contain “wetlands” regulated under the CWA. These

wetlands could be “waters”—not “of Bonner County” or

“of Idaho”—but “of the United States.” 33 U.S.C. §§ 1344,

1362(7). So even though the property didn’t contain or

connect with any interstate, navigable waters, the

Sacketts needed to go through the long and expensive

process of obtaining a federal permit. Otherwise, they

would risk the “criminal penalties and steep civil fines” for

which the CWA’s “regime of strict liability” is known.

Cnty. of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462,

1489 (2020) (Alito, J., dissenting).

Stories like the Sacketts’ have become regrettably

common in the years since the Court’s split decision in

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

4-1-4 opinions in that case, lower courts and agencies have

struggled with what constitutes “the waters of the United

States”—and therefore subjects a given piece of land or

body of water to CWA regulation. Taking a cue from

Justice Kennedy’s solo concurrence in Rapanos, many

courts (including the one below) have held that a

3

“significant nexus” between wetlands and a traditional

navigable water is enough for jurisdiction.

But as the decision below shows, a nexus “significant”

in theory is often insignificant in practice. The Ninth

Circuit said the Sacketts’ land contained “waters of the

United States” because it sits across the road from an

unnamed stream that feeds into a creek that “eventually

flows” into a navigable lake. See App. A-34. In another

case, a California court found that ephemeral streams—in

which water flowed only a few hours a year—had a

significant nexus with navigable waters miles away.

United States v. HVI Cat Canyon, Inc., 314 F. Supp. 3d

1049, 1063 (C.D. Cal. 2018). In still another case, a court

held that wetlands were covered waters where they

“contribute[d] shallow subsurface flow” into a flood

control channel almost two miles away that eventually fed

into a “navigable” swamp.

Universal Welding &

Fabrication, Inc. v. U.S. Army Corps of Eng’rs, No. 4:14CV-00021-TMB, 2015 WL 12661934, at *8 (D. Alaska Oct.

1, 2015). This Court, too, encountered a case in which

federal regulators deemed wetlands to have a “significant

nexus” with a river “some 120 miles away.” U.S. Army

Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 596 (2016).

Quite an odd understanding of “significance.”

And save perhaps for the federal government, this

approach to the CWA is working for just about no one.

“Virtually all water, polluted or not, eventually makes its

way to navigable water.” Cnty. of Maui, 140 S. Ct. at 1470.

So any land bearing a bit of water carries a risk that an

agency or court may find a “significant nexus” with

navigable waters. Because of that possibility, individuals

are left guessing whether they will be subject to federal

regulation, and communities suffer as regulatory fights

and diverted resources tie up economic development for

4

years. Meanwhile, the States struggle to apply the

significant aspects of the CWA they implement and

wonder how much room they have to maneuver within

their own environmental laws.

Approaching the CWA with greater respect for the

statutory text and constitutionally grounded canons of

construction would free the States and the public from this

regulatory murkiness. Rapanos itself shows how these

principles lead to a definition of “the waters of the United

States” that works. In treating the statutory text as a

meaningful limit on jurisdiction instead of a springboard

for it, the plurality concluded that the CWA reaches

nonnavigable wetlands only when they are both adjacent

to and have a “continuous surface connection” with “a

relatively permanent body of water connected to

traditional interstate navigable waters.” 547 U.S. at 742

(plurality op.). The Court should use the same approach

to map the statute’s boundaries here. In any event, the

amorphous significant nexus test captured in the opinion

below—a test that garnered one lone vote in Rapanos—

cannot stand.

SUMMARY OF ARGUMENT

The Court should reject the “significant nexus” test for

defining “the waters of the United States.”

I. The Ninth Circuit’s decision shows how the

significant nexus test usurps state authority. The test

encompasses all manner of intrastate waters with little

meaningful connection to navigable waters. These are the

waters within the States’ zone of sovereign authority. The

Court should make clear that the CWA does not displace

the States’ important, traditional role stewarding these

resources.

5

II. The boundaries of “the waters of the United

States” must be rooted in the CWA’s text. Yet the

significant nexus test can’t claim pedigree in the statute’s

words—it stems from over-read dicta run amok. The

Court should follow cues from the Rapanos plurality

opinion and parse the statute’s language for a definition

that shows genuine respect for the words Congress used.

III. The significant nexus test presents serious

constitutional concerns by pressing the limits of

Congress’s Commerce Clause powers. Avoiding this issue

is another mark in favor of a more restrained, text-based

view of the CWA’s jurisdictional sweep.

IV. The Court should not blind itself to the significant

nexus test’s real-world consequences. After nearly two

decades of experimentation, the test has shown itself a

confusing, unworkable standard. It imposes serious costs,

encourages litigation, and leaves relevant stakeholders in

the dark—by operating in vague terms, it is effectively no

definition at all. Adopting a clearer reading of the CWA

would put a stop to that. And most importantly, it would

re-center the CWA around its text and the principles of

cooperative federalism that animate it.

ARGUMENT

I.

The Significant Nexus Test Offends Traditional

State Authority.

A. Federalism matters when it comes to statutory

interpretation. After all, the “proper division of authority

between the Federal Government and the States” is “our

oldest question of constitutional law.” New York v. United

States, 505 U.S. 144, 149 (1992). Just as old is the States’

broad “residuary and inviolable sovereignty,” Alden v.

Maine, 527 U.S. 706, 715 (1999) (quoting THE

6

FEDERALIST NO. 39, at 245), which allows the States to

“pursu[e] [their] legislative objectives,” Shelby Cnty., Ala.

v. Holder, 570 U.S. 529, 543 (2013). Preserving this

balance of power between the States and the federal

government “is not just an end in itself.” Id. Rather,

“federalism secures to citizens the liberties that derive

from the diffusion of sovereign power.” Id.

Courts thus often read statutes in a way that

strengthens federalism interests like these.

In

McDonnell v. United States, for example, this Court

favored a “more limited reading” of a criminal law that

was free of “federalism concerns” and “supported by both

text and precedent.” 136 S. Ct. 2355, 2373 (2016). A

construction that would have left the statute’s “outer

boundaries ambiguous and involve[d] the Federal

Government in setting standards” of “good government

for local and state official[s],” however, ended on the

cutting-room floor. Id. That decision was not alone: The

Court rightly hesitates before construing statutes to limit

the traditional sovereign powers of the States. See, e.g.,

Bond v. United States, 572 U.S. 844, 862 (2014) (“[I]t is

fully appropriate [when construing statutes] to apply the

background assumption that Congress normally

preserves ‘the constitutional balance between the

National Government and the States.’”); Jones v. United

States, 529 U.S. 848, 850 (2000) (refusing to upset the

“federal-state balance in the prosecution of crimes” when

construing federal arson statute); see Healy v. Ratta, 292

U.S. 263, 270 (1934) (“Due regard for the rightful

independence of state governments, which should actuate

federal courts, requires that [federal courts] scrupulously

confine their own jurisdiction to the precise limits which

the statute has defined.”). Even when a statute is

“designed to advance cooperative federalism,” the Court

has “not been reluctant to leave a range of permissible

7

choices to the States.” Wis. Dep’t of Health & Fam. Servs.

v. Blumer, 534 U.S. 473, 495 (2002).

And when it comes to areas of traditional state powers,

the Court frequently puts federalism to work through a

clear-statement rule. This means that Congress must

speak clearly if it wants to alter the “usual constitutional

balance of federal and state powers.” Bond, 572 U.S. at

858. The canon recognizes that Congress’s ability to

“legislate in areas traditionally regulated by the States” is

an “extraordinary power in a federalist system,” so courts

“must assume Congress does not exercise [that power]

lightly.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

Clarity is no low bar, either: Congress must employ

“exceedingly,” U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n, 140 S. Ct. 1837, 1849-50 (2020), or

“unmistakably” clear language, Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 65 (1989). Short of that, statutes

“will not be deemed to have significantly changed” the

federal-state “balance.” United States v. Bass, 404 U.S.

336, 349 & n.16 (1971) (collecting cases; emphasis added).

B. Intrastate water regulation is on the state side of

this balance, as the Court has long seen local land and

water management as “the quintessential state activity.”

FERC v. Mississippi, 456 U.S. 742, 767 n.30 (1982).

Indeed, the States’ “power to control navigation, fishing,

and other public uses of water” is “an essential attribute

of [state] sovereignty.” Tarrant Reg’l Water Dist. v.

Herrmann, 569 U.S. 614, 631 (2013) (cleaned up). Those

rights are “obvious, indisputable,” and “omnipresent.”

Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349, 356

(1908).

Congress has respected that traditional power through

a “determination to avoid unconstitutional invasion of the

[water-related] jurisdiction of the states.” First Iowa

8

Hydro-Elec. Co-op. v. Fed. Power Comm’n, 328 U.S. 152,

171 (1946). For decades, it has given “purposeful and

continued deference to state water law,” and repeatedly

“recognized,” “encouraged,” and “protect[ed]” the States’

rights over their own waters. California v. United States,

438 U.S. 645, 653-54 (1978); see also Sporhase v. Nebraska

ex rel. Douglas, 458 U.S. 941, 959 (1982) (describing “37

statutes and the interstate compacts [that] demonstrate

Congress’ deference to state water law”); United States v.

New Mexico, 438 U.S. 696, 702 (1978) (Congress has

“almost invariably deferred to the state law” when

addressing “whether federal entities must abide by state

water law”).

Pollution control is no different. Even in that context,

Congress routinely treats “federal intervention in water

quality regulation as an intrusion into the states’ spheres

of authority.” Robin Kundis Craig, Adapting Water

Federalism to Climate Change Impacts: Energy Policy,

Food Security, and the Allocation of Water Resources, 5

ENV’T & ENERGY L. & POL’Y J. 183, 206 (2010). The CWA

itself was one of the first times Congress stepped into the

“water quality” space, and there only reluctantly. Id. So

it is hardly surprising that Congress placed stateauthority considerations at the heart of the CWA’s

“cooperative federalism.” New York, 505 U.S. at 167. Yes,

the CWA aims to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.”

33 U.S.C. § 1251(a). But Congress also stressed its intent

to “recognize, preserve, and protect the primary

responsibilities and rights of States” as to pollution

control and “the development and use … of land and water

resources.” Id. § 1251(b).

Among other things, the CWA advances this goal by

expressly empowering States to implement its provisions.

9

See, e.g., 33 U.S.C. §§ 1311(b)(1)(C) & (e)(3)(A) (States set

water quality standards for covered waters), 1341(a)

(States can issue water quality certifications for federal

permits issued for projects within their borders), 1342

(States can administer CWA’s permitting regimes).

Congress also “respect[ed] the States’ concerns,” S.D.

Warren Co. v. Maine Bd. of Env’t Prot., 547 U.S. 370, 386,

(2006), guaranteeing that the Act does not “interfere any

more than necessary with state water management,” Nat’l

Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir.

1982). This federal restraint allows a “strong current of

federalism” to flow through the statute. District of

Columbia v. Schramm, 631 F.2d 854, 863 (D.C. Cir. 1980);

accord Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 873

(7th Cir. 1989) (“[N]umerous courts have recognized the

primacy of state and local enforcement of water pollution

controls as a theme that resounds throughout the history

of the Act.” (cleaned up)).

A key benefit of this cooperative federalism framework

is that States remain “free to develop a variety of solutions

to problems and not be forced into a common, uniform

mold.” Addington v. Texas, 441 U.S. 418, 431 (1979). The

States understand better than federal regulators the

unique (and ever-changing) hydrological and geological

challenges facing their local environments. West Virginia

protects the rivers rolling through the Alleghenies while

Florida handles its Everglades. Arizona and Utah

address the challenges arid environments pose to their

rivers. And Idaho and Mississippi craft solutions with an

eye to the unique characteristics of the wetlands in their

respective jurisdictions.

Indeed, exercising their authority to solve problems

and protect intrastate waters and other natural resources

is exactly what the States have done.

See

10

States.Pet.Amicus.6-7 & nn.2-6 (cataloguing state statutes

defining state waters and wetlands, regulating water

quality, protecting water purity, and mitigating pollution).

The States were out in front when it came to wetlands

regulation, too—several States enacted wetlands

protection statutes before Congress passed the CWA, and

many more followed within the next few years. See

Jonathan H. Adler, Wetlands, Waterfowl, and the Menace

of Mr. Wilson: Commerce Clause Jurisprudence and the

Limits of Federal Wetland Regulation, 29 ENV’T L. 1, 48

(1999).

C. With this background in mind, it comes as no

surprise that the Court has refused to define “the waters

of the United States” to effect a “federal takeover” of

water management and pollution control. Ryan P.

Murphy, Did We Miss the Boat? The Clean Water Act and

Sustainability, 47 U. RICH. L. REV. 1267, 1275 (2013).

Instead, the Court has insisted that the definition must

avoid “a significant impingement of the States’ traditional

and primary power over land and water use.” Solid Waste

Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,

531 U.S. 159, 174 (2001) (“SWANCC”). Thus, “[t]he Court

in SWANCC and a plurality in Rapanos were unwilling to

accept [an] assertion of jurisdiction over what looked like

places traditionally regulated by the states.” Am. Farm

Bureau Fed’n v. EPA, 792 F.3d 281, 302 (3d Cir. 2015).

The phrase “‘the waters of the United States,’” after

all, “hardly qualifies” as a clear statement of congressional

intent to abrogate state authority. See Rapanos, 547 U.S.

at 738 (plurality op.). It might even be an anti-clear

statement. The term defines the jurisdictional term

“navigable waters.” 33 U.S.C. § 1362(7). That phrase, in

turn, shows “what Congress had in mind as its authority

for enacting the CWA: its traditional jurisdiction over

11

waters that were or had been navigable in fact or which

could reasonably be so made.” SWANCC, 531 U.S. at 172.

It matters as well that Congress used other phrasing that

denotes limited regulatory reach rather than expansive

prescriptive powers—like “the waters” and not just

“water” “of the United States.” See infra Part II.

Congress thus clearly foreclosed a construction that would

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 op.) (cleaned

up). And thank goodness for that. Water-resource

management often presents “complicated issues that are

better suited to individualized local solutions.” Cnty. of

Maui, 140 S. Ct. at 1488-89 (Alito, J., dissenting). If

Congress had meant for the federal government to sort

out those matters instead of the States, it would have said

so.

It’s thus no exaggeration to say that these ideas—the

States’ constitutionally protected roles on the one hand,

Congress’s and this Court’s commitment to the CWA’s

program of cooperative federalism on the other—work in

concert only under a restrained reading of the CWA. See,

e.g., Andrea Driggs, et al., Just Add Water: Permitting,

State Sovereignty, and the Marble Cake Debate, 35 NAT.

RES. & ENV’T 45, 45 (2020) (“The larger the universe of

federal ‘waters,’ of course, the smaller the role of the

states in a scheme that purportedly gave them an

important role to play.”); Roni A. Elias, Waters of the

United States, 52 TULSA L. REV. 57, 65 (2016) (“[T]he

extension of federal authority [over navigable waters]

must be carefully drawn to avoid unnecessary incursions

upon the states’ primary power to regulate land and water

use.”).

12

That makes it a problem that the significant nexus test

is not narrow in the least. As the Rapanos dissent

observed, that approach “treats more of the Nation’s

waters as within the Corps’ jurisdiction” than the

plurality’s test. 547 U.S. at 810 n.14 (Stevens, J.,

dissenting). The concurrence itself conceded that “the

significant-nexus requirement may not align perfectly

with the traditional extent of federal authority.” Id. at 782

(Kennedy, J., concurring in the judgment). The plurality,

in turn, rightly responded that even this concession “tests

the limit of understatement.” Id. at 738 n.9 (plurality op.).

And the significant nexus test “aligns even worse with the

preservation of traditional state land-use regulation.” Id.

Real-world facts tell the same story. In just one

State—Kansas—a significant nexus test that reaches

ephemeral streams (as the Ninth Circuit seems to apply

it) would put under federal jurisdiction more than 100,000

miles of mostly dry land. See Comments of the Waters

Advocacy Coalition on the Environmental Protection

Agency’s and U.S. Army Corps of Engineers’ Proposed

Rule to Define “Waters of the United States” Under the

Clean Water Act, EPA-HQ-OW-2011-0880, at 35 (Nov. 13,

2014), https://bit.ly/3NXIdGY.

That change would

quadruple the statute’s geographic reach in the State. Id.

And Kansas’ experience is no fluke. If ephemeral streams

qualify as covered “waters,” even a smaller State like

West Virginia would see 8,000 new miles of surface flow

pushed

under

the

federal

umbrella.

See

States.Pet.Amicus.12. Now consider the havoc in States

with even more potentially covered waters, like Alaska

with its hundreds of millions of acres of wetlands, or

Florida where wetlands cover nearly a third of the State.

In contrast, a more limited, textually grounded view of

“the waters of the United States” would preserve a

13

meaningful zone of truly state regulatory authority.

States could continue to design different “water quality

solutions” based on “the varied topographies and

climates” around the country. Miss. Comm’n on Nat. Res.

v. Costle, 625 F.2d 1269, 1275 (5th Cir. 1980). The CWA

would no longer threaten millions of additional acres with

onerous regulation, but would remain tied directly to the

realm of traditionally navigable waters in which Congress

rightfully operates. Rock quarries, storm drains, and the

like would remain firmly in local control, where they have

always been.

The choice is clear. Principles of federalism generally

and in the CWA specifically call for a more controlled

understanding of “the waters of the United States” than

the significant nexus test could ever provide.

II.

The Significant Nexus Test Conflicts With The

CWA’s Text.

The Court could also reject the Ninth Circuit’s

approach without a federalism assist: A closer look at the

significant nexus test’s origins reveals its sharp departure

from the statutory text.

A. Justice Kennedy understood “the waters of the

United States” as not only “waters that are or were

navigable in fact or that could reasonably be so made,” but

also features with a “significant nexus” to them. Rapanos,

547 U.S. at 759 (Kennedy, J., concurring in the judgment).

This nexus requirement, he concluded, offered reliable

“assurance” that a nonnavigable water “significantly

affects the chemical, physical, and biological” integrity of

navigable waters. Id. at 779-81. And that requirement

would require courts and agencies to define the “waters of

the United States” by making “case-by-case” assessments

premised on quasi-scientific factors. Id. at 782.

14

There’s a threshold oversight in this formulation: The

operative phrase—“significant nexus”—exists nowhere in

the statute. Nor does it grow from the words that are

there. Justice Kennedy’s Rapanos analysis instead “le[ft]

the Act’s ‘text’ and ‘structure’ virtually unaddressed.”

Rapanos, 547 U.S. at 753 (plurality op.); accord Sam

Kalen, Is “Significant Nexus” Really Significant?

Justice Kennedy’s Concurrence in Rapanos, NAT. RES. &

ENV’T, SUMMER 2007, at 9, 10 (“Nothing suggests that the

significant nexus test is rooted in any statutory or

regulatory language.”). Significant nexus is merely a

“judicially crafted rule.” Rapanos, 547 U.S. at 807

(Stevens, J., dissenting).

The only textual hook for the test is a callback to

Congress’s purpose to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.”

Rapanos, 547 U.S. at 779-80 (Kennedy, J., concurring in

the judgment) (quoting 33 U.S.C. § 1251(a)). Yet that

appeal is a risky foundation given Congress’s parallel

purpose of preserving States’ traditional stewardship

roles. See 33 U.S.C. § 1251(b). Beyond that, “a court is

not free to disregard [statutory] requirements simply

because it considers them … unsuited to achieving the

general purpose in a particular case.” Comm’r v. Gordon,

391 U.S. 83, 93 (1968). The Court should “read the statute

according to its text.” Hui v. Castaneda, 559 U.S. 799, 812

(2010).

And even if the Court were inclined to go further afield,

history and practice do not support the significant nexus

test, either. The Court has looked before to the “original

[administrative] interpretation of the CWA” because

there is “no persuasive evidence that the [Army] Corps [of

Engineers] mistook Congress’ intent in 1974.” SWANCC,

531 U.S. at 168. Yet there is no nexus language in the

15

agencies’ early regulations and guidance. EPA’s general

counsel opined shortly after the CWA’s passage that it

reached only navigable waters, tributaries of those

waters, and certain other interstate waters. See ENV’T

PROT. AGENCY, OFF. GEN. COUNSEL, MEANING OF THE

TERM “NAVIGABLE WATERS” (Feb. 13, 1973), 1973 WL

21937. Similarly, the Corps’ original implementing

regulations construed jurisdictional waters to be only

those that “are presently, or have been in the past, or may

be in the future susceptible for use for purposes of

interstate or foreign commerce.”

33 C.F.R.

§ 209.120(d)(1) (1974). In contrast, the significant nexus

test has “a relatively short lineage,” having been drawn

from the SWANCC decision issued just five-and-a-half

years before. Lawrence R. Liebesman, et al., Rapanos v.

United States: Using Proximate Causation and

Foreseeability Principles to Save a CWA Flawed

Jurisdictional Process, AM. LAW INST. 13, 16 (2010).

SWANCC’s “significant nexus” reference did not

purport to rewrite federal jurisdiction in the way Justice

Kennedy conceived. The Court in SWANCC declined to

treat as “the waters of the United States” certain isolated

waters that migratory birds used as a habitat. 531 U.S. at

167.

On the way to that conclusion, SWANCC

acknowledged an earlier decision saying that Congress

intended to “regulate at least some waters that would not

be deemed ‘navigable’ under the classical understanding

of that term.” Id. (quoting United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 133 (1985)). But

SWANCC cabined that earlier holding’s reach— “based in

large measure upon Congress’ unequivocal acquiescence

to, and approval of” certain regulations that read the CWA

“to cover wetlands adjacent to navigable waters” only

because they were “inseparably bound up with the

‘waters’ of the United States.” Id. (quoting Riverside

16

Bayview, 474 U.S. at 134). This inseparability, then, is the

original context for the phrase that has caused so much

trouble: “It was the significant nexus between the

wetlands and ‘navigable waters’ that informed [the

Court’s] reading of the CWA in Riverside Bayview

Homes.” Id. at 167-68 (quoting Riverside Bayview, 474

U.S. at 131-32 n.8; emphasis added); see also Rapanos, 547

U.S. at 755 (plurality op.) (calling “significant nexus” a

“cryptic characterization” of Riverside Bayview).

In other words, SWANCC used “significant nexus” as

shorthand to describe bodies of water that had a direct

and continuous tie to navigable waters—a connection so

close that the waters were functionally inseparable. The

phrase also distinguished language in a prior case;

SWANCC did not use it to define “the waters of the United

States” directly.

And even if it had, SWANCC’s

conception of “significant nexus” sounds closer to the

standard the Rapanos plurality opinion described than to

the concurrence’s broad test. Compare SWANCC, 531

U.S. at 167 (explaining that waters “inseparably bound

up” with navigable waters had a “significant nexus” that

rendered them waters of the United States), with

Rapanos, 547 U.S. at 755 (plurality op.) (“Wetlands are

‘waters of the United States’ if they bear the ‘significant

nexus’ of physical connection, which makes them as a

practical matter indistinguishable from waters of the

United States.”).

B. The Court should set aside the sprawling

significant nexus test in favor of an interpretation rooted

in and limited by the words Congress chose. The former

“substitut[es] the purpose of the [CWA] for its text.”

Rapanos, 547 U.S. at 755 (plurality op.). The Court should

focus instead on the statute’s language, as “even purpose

as most narrowly defined … sheds light only on deciding

17

which of various textually permissible meanings should be

adopted.” A. SCALIA & B. GARNER, READING LAW 57

(2012).

This case’s outcome should be pinned to Congress’s

words. The Rapanos plurality, for instance, emphasized

aspects of the phrase “the waters of the United States”

that confirm a narrower jurisdictional reach. Congress

chose “the definite article (‘the’) and the plural number

(‘waters’),” which shows “plainly that § 1362(7) does not

refer to water in general.” 547 U.S. at 732 (plurality op.).

Further, “waters” is ordinarily understood to mean

“permanent, standing or flowing bodies of water ‘forming

geographical features’ that are described in ordinary

parlance as ‘streams[,] ... oceans, rivers, [and] lakes,’” as

well as “wetlands with a continuous surface connection to”

them. Id. at 739, 742.

This reasoning tracks SWANCC’s reliance on another

textual clue to the CWA’s limits—that Congress linked

“waters of the United States” with the word “navigable.”

531 U.S. at 172; see also Rapanos, 547 U.S. at 731

(plurality op.) (“[T]he qualifier ‘navigable’ is not devoid of

significance.”). The Rapanos plurality’s “continuous …

connection” language in fact echoes the traditional

definition of navigable waters: “a continued highway over

which commerce is or may be carried on.” The Daniel

Ball, 77 U.S. 557, 563 (1870). It makes sense on the

ground as well. It is hard to navigate ephemeral streams

and lands only sometimes wet.

The words Congress used outside the definitional

provision also lead to the same result. Rejecting the

significant nexus test would respect Congress’s choice to

“categorize[] the channels and conduits that typically

carry intermittent flows of water separately from

‘navigable waters’” themselves. Rapanos, 547 U.S. at 735

18

(plurality op.) (describing separate statutory definition of

“point source”). Terms for those features exist elsewhere

in the CWA. Id. at 735-36. And where Congress expressly

defines one category of things, courts need and should not

stretch another term to reach the same things, too. See

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.

644, 669 (2007) (“[W]e have cautioned against reading a

text in a way that makes part of it redundant.”). Even in

the purpose provisions Justice Kennedy favored,

Congress sought to eliminate the “discharge of pollutants

into the navigable waters,” not eliminate discharge of

pollutants that indirectly affect those waters. 33 U.S.C.

§ 1251(a)(1). So here again, a restrained definition shows

greater respect for the ordinary rules of statutory

construction, as “[s]tatutes should be interpreted as a

‘symmetrical and coherent regulatory scheme.’” Mellouli

v. Lynch, 575 U.S. 798, 809 (2015).

In short, any understanding of “the waters of the

United States” should remain firmly focused on the

statute. “Significant nexus” is not.

III.

The Significant Nexus Test Presents Serious

Constitutional Concerns.

The Court also does not race to embrace statutory

constructions that might raise constitutional problems.

Quite the opposite: “Courts should … construe statutes to

avoid not only the conclusion that they are

unconstitutional, but also grave doubts upon that score.”

United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622

(2021) (cleaned up). Thus, the Court construed the CWA

at least twice to avoid the question whether an expansive

definition of jurisdictional waters would exceed

Congress’s powers under the Commerce Clause. See

Rapanos, 547 U.S. at 738 (plurality op.) (rejecting

19

significant nexus test on this ground); SWANCC, 531 U.S.

at 173 (rejecting broad agency construction of same

provision based on similar concerns). It should do so again

here.

The significant nexus test runs headlong into Article I,

Section 8. The phrase “the waters of the United States”

does more than mark which waters Congress thought it

would make sense to bring under federal control. It also

links the CWA to Congress’s “Commerce Clause

powers”—that is, the only authority for federal legislation

in the first place. United States v. Lucero, 989 F.3d 1088,

1095 (9th Cir. 2021). And “the power to regulate

commerce, though broad indeed, has limits.” Citizens

Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003).

The significant nexus test traverses them. The Court

could fairly say that wetlands with a direct and permanent

connection to navigable waters—such that they are an

inseparable part of those waters—are “channels of

interstate commerce.” Nat’l Fed’n of Indep. Bus. v.

Sebelius, 567 U.S. 519, 536 (2012) (“NFIB”) (opinion of

Roberts, C.J.) (cleaned up). But the test breaks down

when it starts reaching distant waters that only “affect” in

some way “other covered waters more readily understood

as navigable.” Rapanos, 547 U.S. at 780 (Kennedy, J.,

concurring in the judgment).

For one thing, biological effects on navigable waters via

complex chains of causation quickly become too

attenuated to answer whether an upstream discharge is

an “activit[y] that [will] substantially affect interstate

commerce.” NFIB, 567 U.S. at 536. For another, the

CWA does not limit itself to regulating ordinary economic

activities—the statute governs even purely intrastate

waters and lands no matter what purpose they might

serve. Yet at least “thus far in our Nation’s history,” the

20

Court has “upheld Commerce Clause regulation of

intrastate activity only where that activity is economic in

nature.” Taylor v. United States, 579 U.S. 301, 306 (2016);

see also Gonzales v. Raich, 545 U.S. 1, 38 (2005) (Scalia,

J., concurring in the judgment) (“Congress may regulate

noneconomic intrastate activities only where the failure to

do so could … undercut its regulation of interstate

commerce.” (cleaned up)). Because the CWA is not a

goods-and-services regulation, combining an indirect

economic focus with a too-broad jurisdictional hook

pushes it dangerously close to laws governing guns near

schools and making violence against women a federal

crime, which fell outside the Clause’s scope. See United

States v. Morrison, 529 U.S. 598, 617 (2000); United States

v. Lopez, 514 U.S. 549, 567 (1995).

The Court is also especially careful not to over-extend

Congress’s Commerce Clause powers when, as here,

federal jurisdiction comes at the expense of traditional

state powers. See supra Section I. After all, in cases of

state versus federal authority, the Commerce Clause and

the Tenth Amendment are “mirror” images. New York,

505 U.S. at 156. Reading the Commerce Clause to give too

much power to Congress could thus “devour the essentials

of state sovereignty.” Maryland v. Wirtz, 392 U.S. 183,

205 (1968) (Douglas, J., dissenting). And enshrining the

significant nexus test would pose a genuine risk of letting

the Commerce Clause “embrace effects upon interstate

commerce so indirect and remote” as to “effectually

obliterate the distinction between what is national and

what is local.” NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1, 37 (1937).

It’s best to avoid these issues entirely. Construing “the

waters of the United States” in line with traditionally

21

understood navigable waters and those with direct and

continuous connections to them would do exactly that.

IV.

The Significant Nexus Test Burdens Both

States and the Public.

One last reason counsels for a narrower reading: The

significant nexus test has hurt almost everyone involved

in or subject to CWA regulation. Significant doubt that

Congress intended these harms confirms the text’s more

limited reach.

A. The federal permitting process is expensive and

takes years. Twenty years ago, the “average applicant for

an individual permit spen[t] 788 days and $271,596 in

completing the process,” and in total the private and

public sectors spent “over $1.7 billion” every year

“obtaining wetlands permits.” Rapanos, 547 U.S. at 721

(plurality op.). Today, experts estimate that permittees

will need to spend another “$113 and $276 million for

increased permit and mitigation costs on an annualized

basis” because of EPA’s movement towards the

significant-nexus standard. See Dan Bosch, The Biden

WOTUS: Breadth and Uncertainty, AMERICAN ACTION

FORUM: INSIGHT (Nov. 19, 2021), https://bit.ly/3E4RgkT.

Those are just the front-end costs. Violating the CWA

can trigger tens of thousands of dollars in civil fines, along

with criminal penalties that can land the violating party in

prison depending on how determined the enforcing entity

is to send a message. See, e.g., United States v. Mills, 817

F. Supp. 1546, 1548 (N.D. Fla. 1993) (denying postconviction relief in CWA case to “a landowner who

place[d] clean fill dirt on a plot of subdivided dry land”).

On top of that, if parties think federal agencies go too far

designating the lands within the CWA’s reach, they have

to incur substantial legal fees to stand a chance at winning

22

in court. (Witness the decade-and-a-half epic this case has

become.) These sizeable back-end costs—and all the

attendant delay—come at the expense of the regulated

public and the economic development stymied along the

way.

And although the goal of reducing water pollution

certainly justifies some costs, the significant nexus test’s

breadth and uncertainty make them unjustifiably worse.

See Rapanos, 547 U.S. at 809 (Stevens, J., dissenting)

(predicting that the “significant nexus” text would

“creat[e] additional work for all concerned” because of its

vagueness “which will inevitably increase the time and

resources spent processing permit applications”). It is

almost impossible for parties to know what will or won’t

be deemed subject to federal jurisdiction. Perhaps

because of that, property values can take a substantial hit

once regulators suggest that a given piece of land may

contain “waters of the United States.” See generally

Bergen Cnty. Assocs. v. Borough of E. Rutherford, 12 N.J.

Tax 399 (N.J. Tax. Ct. 1992) (reducing property

assessment of roughly $20 million to just under $1 million

largely because of the “severe developmental restraints—

indeed the prohibitions—imposed by federal regulatory

agencies” enforcing the CWA). Buyers would rather

avoid the headache.

Part of the explanation for this costly confusion is that

“significant nexus” functions as no real standard. The

phrase is not an industry term of art; it “hold[s] only a

semantic meaning,” making it “challenging” to “ensur[e]

that the language is properly applied.” Natalia Cabrera,

Using HGM Analysis to Aggregate Wetlands as

‘Similarly Situated’ Under the Rapanos ‘Significant

Nexus’ Test, 42 B.C. ENV’T AFF. L. REV. 65, 91 (2015).

Because it is not “used for classification or explanation by

23

aquatic resource scientists,” it “result[s] in unclear

application by Corps field staff who must quickly assess

whether an area falls under CWA jurisdiction.” Id. And

the test remains “fraught with difficulties even once

regulators get past these linguistic questions to the brass

tacks of implementation.” Kenneth S. Gould, Drowning

in Wetlands Jurisdictional Determination Process:

Implementation of Rapanos v. United States, 30 U. ARK.

LITTLE ROCK L. REV. 413, 444 (2008). At the very least, it

“require[s] significant and expensive examinations,

testing and synthesis, all to be undertaken by the

landowner’s expert consultants and agency personnel.”

Id. In other words, still more time and money at the

regulated parties’ expense.

The Ninth Circuit’s opinion is a prime example of the

dysfunction that will persist if the significant nexus test

remains in place. The Sacketts’ land may not actually

contain wetlands, much less wetlands that are “adjacent

to navigable waters,” and thus “inseparably bound up with

the ‘waters’ of the United States.” SWANCC, 531 U.S. at

167. The lot is “soggy” and near a “large wetlands

complex” that “drains into an unnamed tributary”

connected to a creek that feeds into a lake. App. A-4, A-8.

“Subsurface flow” or three degrees of separation from a

navigable water might be all it takes to keep the Sacketts

from building their home—but maybe not. App. A-34-35.

Regardless, they have been in a state of uncertainty for 15

years. And after these years of litigation, scores of agency

discussions and negotiations, and multiple technical

analyses along the way, they still do not know for certain

whether their land is part of “the waters of the United

States.”

Other examples abound. Thanks to the significant

nexus test’s indeterminacy, a muddled mix of land and

24

waters have fallen within the CWA’s grasp.

See

States.Pet.Amicus.10-13 (summarizing an array of court

holdings and agency findings regulating certain

geographic features as “the waters of the United States,”

including a mostly dry rock quarry, fully separated

wetlands, permafrost, “test pits,” intermittent and

ephemeral waters and streams, and others); Editorial

Staff, Regulations are all wet, AUGUSTA CHRONICLE

(Feb. 11, 2019, 5:01 PM), https://bit.ly/3r6MbDm

(discussing the ponds, impoundments, and irrigation

ditches of a small nursery in rural Georgia that may be

subject to potentially crushing federal regulation). These

examples show how few true limits there are to a standard

that turns on “case-by-case” assessments of “ecological

significance.” See Rapanos, 547 U.S. at 754 (plurality op.).

In short, “[a]ny piece of land that is wet at least part of the

year” may find itself a covered “wetland[].” Sackett v.

EPA, 566 U.S. 120, 132 (2012) (Alito, J., concurring).

B. The significant nexus test improperly burdens the

States as well. It creates unjustified work, conflict, and

displacement—maybe even preemption—of state

authorities. The States, after all, implement huge swaths

of the CWA’s substantive programs. An expansive and

uncertain standard makes that task exponentially harder.

Take the States’ role in implementing the “arduous,

expensive, and long” permitting regime for the National

Pollutant Discharge Elimination System (“NPDES”).

Hawkes Co., 578 U.S. at 601; see 33 U.S.C. § 1342(b). All

but three States have assumed that responsibility. See S.

Cal. All. of Publicly Owned Treatment Works v. EPA, 8

F.4th 831, 834 (9th Cir. 2021) (“The EPA has transferred

permitting authority to 47 States.”). That’s no small

assumption. Back in 2015, state environmental protection

agencies spent nearly 1.6 million hours and almost $70

25

million each year processing NPDES permits. See OFF.

OF MGMT. & BUDGET, EPA ICR NO. 0229.21, ICR

SUPPORTING STATEMENT, INFORMATION COLLECTION

REQUEST FOR NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM (NPDES) PROGRAM (RENEWAL),

at 17, tbl. 12.1 (Dec. 2015), https://bit.ly/3KIPY1z. In the

seven years since, as courts and regulators adopted more

aggressive understandings of “the waters of the United

States,” those numbers have continued to grow. States,

tribes, territories, and the District of Columbia now spend

just short of 2.5 million hours and $130 million on these

permits. See OFF. OF MGMT. & BUDGET, EPA ICR NO.

0229.25, ICR SUPPORTING STATEMENT: INFORMATION

COLLECTION REQUEST FOR NATIONAL POLLUTANT

DISCHARGE ELIMINATION SYSTEM (NPDES) PROGRAM

(RENEWAL),

at

20,

tbl.

12-1

(July

2021),

https://bit.ly/3JI8Lst. These figures will balloon further if

a loose understanding of “significant nexus” takes hold.

Moving to other examples, the scope of “the waters of

the United States” will also determine how States set and

report on water quality standards.

33 U.S.C.

§§ 1311(b)(1)(C) & (e)(3)(A), 1315(b)(1)(A)-(B). It will

determine how often States need to issue certifications to

federal permit applicants. Id. § 1341. And perhaps of

most relevance here, it will determine the reach of the

CWA’s dredge and fill limitations on wetlands. Id. § 1344.

This portion of the Act imposes serious costs on States as

well as property owners. For example, when Virginia

considered assuming authority under CWA Section 404, it

estimated the cost at “18 million dollars over the first 5

years, and 3.4 million annually thereafter.” VA. DEP’T OF

ENV’T QUALITY, STUDY OF THE COSTS AND BENEFITS OF

STATE ASSUMPTION OF THE FEDERAL § 404 CLEAN

WATER ACT PERMITTING PROGRAM 2 (Dec. 2012),

https://bit.ly/3jAx693. “[M]ost states” have decided not to

26

assume control over Section 404 implementation precisely

because of these high funding costs. See, e.g., ARIZ. DEP’T

OF ENV’T QUALITY, CLEAN WATER ACT § 404 PROGRAM

TECHNICAL WORKING GROUP – FEES WHITE PAPER 10

(Dec. 20, 2018), https://bit.ly/3vfLEjP. If the Court reads

“the waters of the United States” to further swell the Act’s

reach, States will have even more reason to decline

implementation authority—at the expense of the CWA’s

cooperative federalism objective and the locally focused

solutions it encourages.

Many States’ comparatively limited resources put

these present and projected costs into perspective. As it

is, too few bodies and dollars are available to implement

too broad a program. See, e.g., Hunter S. Higgins,

Deference, Due Process, and the Definition of Water:

Dredging the Clean Water Act, 20 U. DENV. WATER L.

REV. 305, 322-23 (2017). One survey of state water

regulators, for instance, “suggested a national gap of

approximately $280 million between federal spending and

[a]ctual spending”; the States “were hundreds of millions

of dollars short of what they needed to meet their

minimum obligations under the CWA.” CHERYL BARNES,

ET AL., CLEAN WATER ACT IMPLEMENTATION:

REVISITING STATE RESOURCE NEEDS 26 (2019),

https://bit.ly/3M5uBYt; see also Gould, supra, at 444 (as

early as 2008, “[a]necdotal evidence abound[ed] that the

significant nexus test has markedly strained the wetlands

jurisdictional determination process”). In short, as

federal regulators and lower courts have raced to expand

the CWA’s reach, the associated implementation burdens

have been more than many States can reasonably bear.

A narrower, text-focused reading of the CWA would

remove these impossible burdens and allow States to

redirect efforts to more fruitful ends, as Congress

27

intended. Those projects might be specialized localized

regulation, more efficient reviews, or just about anything

else. Every dollar a State like West Virginia spends

implementing federal permitting regimes for intermittent

mountain streams and other intrastate waters is one less

dollar for other locally needed environmental protection

efforts. And geographically tailored ventures like these

are far better than tying up beneficial land improvement

projects in the red tape of constantly changing regulatory

demands.

A more restrained reading of the Act would head off

broader economic harms to the States, too. Agency

waffling and overreach in the CWA context cost States tax

revenues, stall jobs creation, and create other broad

macroeconomic effects.

More expansive federal

jurisdiction could also “have a stifling [e]ffect on the

growth of our cities and towns.” Lakshmi Lakshmanan,

The Supreme Court Wades Through the Clean Water Act

to Determine What Constitutes the “Waters of the United

States,” 14 MO. ENV’T L. & POL’Y REV. 371, 391-92 (2007).

Nothing—not the CWA’s text, its context, or the

constitutional principles on which Congress built it—

suggests that Congress meant to bludgeon state

economies in this way.

* * * *

Years after Rapanos, even Justice Kennedy seemed to

express some buyer’s remorse: “[T]he reach and systemic

consequences of the [CWA] remain a cause for concern,”

and the statute “continues to raise troubling questions.”

Hawkes Co., 573 U.S. at 602-03 (Kennedy, J., concurring).

These concerns and questions continue to lurk today. The

CWA was written to forge a genuine “partnership

between the States and the Federal Government,”

Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992), based on

28

mutual respect and regulatory predictability. When these

are the stakes, the only response that rises to the occasion

is one that reads the CWA narrowly, with fidelity to the

text’s limits and its embedded cooperative federalism

ideals.

CONCLUSION

The Court should reverse.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Senior Deputy Solicitor

General

Counsel for Amicus Curiae State of West Virginia

29

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30

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