Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefApr 18, 2022
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No. 21-454
IN THE
Supreme Court of the United States
________________________________
MICHAEL SACKETT; CHANTELL SACKETT,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;
MICHAEL S. REGAN, ADMINISTRATOR,
Respondents.
________________________________
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
________________________________
BRIEF OF CHAMBER OF COMMERCE OF THE UNITED
STATES OF AMERICA AS AMICUS CURIAE IN
SUPPORT OF PETITIONERS
________________________________
KERRY L. MCGRATH
ERICA N. PETERSON
ANTHONY R. GUTTMAN
HUNTON ANDREWS KURTH
LLP
2200 Pennsylvania
Avenue, NW, Suite 900
Washington, D.C. 20037
(202) 955-1500
ELBERT LIN
Counsel of Record
HUNTON ANDREWS KURTH
LLP
951 East Byrd Street, East
Tower
Richmond, VA 23219
elin@HuntonAK.com
(804) 788-8200
April 18, 2022
Counsel for Amicus Curiae
(Additional counsel listed
on inside cover)
ADDITIONAL COUNSEL FOR AMICUS CURIAE
ANDREW R. VARCOE
STEPHANIE A. MALONEY
U.S. CHAMBER
LITIGATION CENTER
1615 H STREET, NW
WASHINGTON, D.C. 20062
(202) 463-5337
i
QUESTION PRESENTED
Whether the U.S. Court of Appeals for the 9th 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
INTEREST OF AMICUS CURIAE..................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT .... 2
ARGUMENT........................................................................ 3
I.
II.
This Court Should Adopt the Rapanos
Plurality’s Analysis................................................... 3
A.
The Rapanos plurality followed
established principles of statutory
interpretation that this Court has often
reiterated. ....................................................... 5
B.
The significant nexus test produces
unpredictable and highly questionable
results. .......................................................... 11
C.
The significant nexus test fails multiple
clear-statement rules. .................................. 16
A Clearly Delineated Understanding of “Waters
of the United States” Is Critical for Business
and Consistent with Environmental Protection.... 21
A.
Predictability and efficiency are
necessary for key infrastructure and
other economically beneficial projects to
move forward. ............................................... 21
iii
B.
Other legal and regulatory tools are
better suited to protecting the water
quality of transitory and ephemeral
waters. .......................................................... 25
C.
A decision from this Court adopting the
Rapanos plurality’s test would provide
significant and needed clarity to all
businesses and landowners. ........................ 26
CONCLUSION .................................................................. 28
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Ass’n of Realtors v. Dep’t of Health &
Human Servs.,
141 S. Ct. 2485 (2021) (per curiam) ............................ 19
Babb v. Wilkie,
140 S. Ct. 1168 (2020) .................................................... 5
Badgerow v. Walters,
No. 20-1143, 2022 WL 959675 (U.S. Mar.
31, 2022) ......................................................................... 7
BedRoc Ltd., LLC v. United States,
541 U.S. 176 (2004) ........................................................ 6
Benjamin v. Douglas Ridge Rifle Club,
673 F. Supp. 2d 1210 (D. Or. 2009) ............................. 13
Chamber of Commerce of the U.S. v. Whiting,
563 U.S. 582 (2011) ........................................................ 7
Chevron U.S.A. Inc. v. Nat. Res. Def. Council,
Inc.,
467 U.S. 837 (1984) ........................................................ 7
Connally v. Gen. Const. Co.,
269 U.S. 385 (1926) ...................................................... 20
Envtl. Prot. Info. Ctr. v. Pac. Lumber Co.,
469 F. Supp. 2d 803 (N.D. Cal. 2007) .......................... 13
v
Facebook, Inc. v. Duguid,
141 S. Ct. 1163 (2021) .................................................... 5
Foster v. U.S. Envtl. Prot. Agency,
No. 14-16744, 2017 WL 3485049 (S.D.
W.Va. Aug. 14, 2017) ................................................... 13
Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242 (2010) ........................................................ 6
Harrison v. Vose,
50 U.S. (9 How.) 372 (1850) ......................................... 20
Hawkes Co., Inc. v. U.S. Army Corps of
Eng’rs,
No. 13–107, 2017 WL 359170 (D. Minn.
Jan. 24, 2017) ............................................................... 12
Hess v. Port Auth. Trans-Hudson Corp.,
513 U.S. 30 (1994) ........................................................ 17
HollyFrontier Cheyenne Refining, LLC v.
Renewable Fuels Ass’n,
141 S. Ct. 2172 (2021) .......................................... 5, 7, 10
Hughey v. United States,
495 U.S. 411 (1990) ................................................ 17, 20
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ................................................ 6, 7
Leocal v. Ashcroft,
543 U.S. 1 (2004) .................................................... 20, 22
vi
Lewis v. United States,
No. 18-1838, 2020 WL 4798496 (E.D. La.
Aug. 18, 2020)............................................................... 12
Life Techs. Corp. v. Promega Corp.,
137 S. Ct. 734 (2017) ...................................................... 5
Little Sisters of the Poor Saints Peter & Paul
Home v. Pennsylvania,
140 S. Ct. 2367 (2020) ................................................ 5, 6
Murray’s Lessee v. Hoboken Land &
Improvement Co.,
59 U.S. (18 How.) 272 (1855) ....................................... 20
N. Cal. River Watch v. City of Healdsburg,
496 F.3d 993 (9th Cir. 2007) ........................................ 15
N.L.R.B. v. SW Gen., Inc.,
137 S. Ct. 929 (2017) ...................................................... 7
Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
138 S. Ct. 617 (2018) ...................................................... 6
Nielsen v. Preap,
139 S. Ct. 954 (2019) ...................................................... 5
Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021) .................................................... 5
North Dakota v. U.S. Envtl. Prot. Agency,
127 F. Supp. 3d 1047 (D.N.D. 2015) ............................ 14
vii
Octane Fitness, LLC v. ICON Health &
Fitness, Inc.,
572 U.S. 545 (2014) ........................................................ 6
Orchard Hill Building Co. v. U.S. Army
Corps of Engineers,
893 F.3d 1017 (7th Cir. 2018) ...................................... 16
Pereira v. Sessions,
138 S. Ct. 2105 (2018) .................................................... 7
Precon Dev. Corp., Inc. v. U.S. Army Corps of
Eng’rs,
633 F.3d 278 (4th Cir. 2011) ...................... 12, 13, 14, 16
Rapanos v. United States,
547 U.S. 715 (2006) .............................................. passim
Ross v. Blake,
578 U.S. 632 (2016) ........................................................ 5
San Francisco Baykeeper v. U.S. Envtl. Prot.
Agency,
492 F. Supp. 3d 1030 (N.D. Cal. 2020) ........................ 15
San Francisco Baykeeper v. W. Bay Sanitary
Dist.,
791 F. Supp. 2d 719 (N.D. Cal. 2011) .......................... 15
Sandifer v. U.S. Steel Corp.,
571 U.S. 220 (2014) ........................................................ 6
viii
Sessions v. Dimaya,
138 S. Ct. 1204 (2018) (Gorsuch, J.,
concurring in part and concurring in
judgment) ..................................................................... 20
Simsbury-Avon Pres. Soc’y, LLC v. Metacon
Gun Club, Inc.,
472 F. Supp. 2d 219 (D. Conn. 2007), aff’d
on other grounds, 575 F.3d 199 (2d Cir.
2009) ............................................................................. 13
Solid Waste Agency of N. Cook Cty. v. U.S.
Army Corps of Eng’rs,
531 U.S. 159 (2001) .......................................... 16, 17, 18
United States v. Bailey,
516 F. Supp. 2d 998 (D. Minn. 2007)........................... 15
United States v. Chevron Pipe Line Co.,
437 F. Supp. 2d 605 (N.D. Tex. 2006) ......................... 11
United States v. Cundiff,
555 F.3d 200 (6th Cir. 2009) ........................................ 13
United States v. Donovan,
661 F.3d 174 (3d Cir. 2011) ......................................... 14
United States v. HVI Cat Canyon, Inc.,
314 F. Supp. 3d 1049 (C.D. Cal. 2018) .................. 12, 15
United States v. Moses,
496 F.3d 984 (9th Cir. 2007) .................................. 11, 15
United States v. Thompson/Center Arms Co.,
504 U.S. 505 (1992) (plurality opinion) ....................... 20
ix
United States v. Vierstra,
803 F. Supp. 2d 1166 (D. Idaho 2011) ................... 12, 13
Util. Air Regulatory Grp. v. Envtl. Prot.
Agency,
573 U.S. 302 (2014) .......................................... 17, 18, 19
Weyerhaeuser Co. v. U.S. Fish & Wildlife
Serv.,
139 S. Ct. 361 (2018) ...................................................... 6
Wooden v. United States,
142 S. Ct. 1063 (2022) .............................................. 7, 20
Federal Statutes
33 U.S.C. § 1251 .................................................... 10, 19, 25
33 U.S.C. § 1255 ................................................................ 26
33 U.S.C. § 1288 ................................................................ 25
33 U.S.C. § 1313 ................................................................ 25
33 U.S.C. § 1329 ................................................................ 26
33 U.S.C. § 1344 .................................................................. 8
33 U.S.C. § 1370 ................................................................ 25
33 U.S.C. § 1377 ................................................................ 25
x
Regulations
40 C.F.R. § 230.92 ............................................................. 22
Clean Water Rule, 80 Fed. Reg. 37,054 (June
29, 2015) ....................................................................... 14
Constitutional Provisions
U.S. Const. Amendment V ................................................ 19
U.S. Const. Amendment XIV ............................................ 19
Other Authorities
American Farm Bureau Federation, et al.,
Comment Letter on Proposed Revised
Definition of “Waters of the United
States” (Feb. 7, 2022),
https://www.regulations.gov/comment/EP
A-HQ-OW-2021-0602-0388 .......................................... 24
David Sunding & David Zilberman, The
Economics of Environmental Regulation
by Licensing: An Assessment of Recent
Changes to the Wetland Permitting
Process, 42 NAT. RESOURCES J. 59 (2002) .............. 22, 23
xi
David Sunding & Gina Waterfield, Review of
the Environmental Protection Agency and
Department of the Army 2021 Economic
Analysis for the Proposed “Revised
Definition of ‘Waters of the United
States’” Rule (Feb. 7, 2022),
https://www.afpm.org/sites/default/files/is
sue_resources/Fina l-Exhibit-10.pdf (last
visited Apr. 13, 2022) ............................................. 21, 22
EPA, Economic Analysis of the EPA-Army
Clean Water Rule (May 20, 2015),
https://www.epa.gov/sites/default/files/201
5-06/documents/50 8final_clean_water_rule_economic_analysi
s_5-20-15.pdf (last visited Apr. 13, 2022) .................... 18
Pennsylvania Farm Bureau, Comment
Letter on Proposed Revised Definition of
“Waters of the United States” (Feb. 7,
2022),
https://www.regulations.gov/comment/EP
A-HQ-OW-2021-0602-0314, (last visited
Apr. 13, 2022) ............................................................... 24
U.S. Chamber of Commerce, Comment
Letter on Proposed Revised Definition of
“Waters of the United States” (Feb. 7,
2022),
https://www.regulations.gov/comment/EP
A-HQ-OW-2021-0602-0437 (last visited
Apr. 13, 2022) ................................................... 22, 23, 24
xii
Utility Water Act Group, Comment Letter on
Proposed Revised Definition of “Waters of
the United States” (Feb. 7, 2022),
https://www.regulations.gov/comment/EP
A-HQ-OW-2021-0602-0601 (last visited
Apr. 13, 2022) ......................................................... 23, 24
1
INTEREST OF AMICUS CURIAE1
The Chamber of Commerce of the United States of
America (“Chamber”) is the world’s largest business
federation. The Chamber represents approximately
300,000 direct members and indirectly represents the
interests of more than three million companies and
professional organizations of every size, in every industry
sector, and from every region of the country. An important
function of the Chamber is to represent the interests of its
members in matters before Congress, the Executive
Branch, and the courts. To that end, the Chamber
regularly files amicus curiae briefs in cases, like this one,
that raise issues of concern to the Nation’s business
community.
Many industries in which the Chamber’s members
operate are regularly confronted by issues concerning the
scope of the Clean Water Act (CWA or the Act) and are
adversely affected by the uncertain reach of federal
jurisdiction under the CWA. Without clear guidance from
this Court, the Chamber’s members will continue to endure
an expensive, vague, and time-consuming process
whenever they need to determine whether a project or
activity will impact waters subject to federal jurisdiction
under the CWA. Indeed, the substantial burdens that this
uncertainty causes, including the expense of this
regulatory process and the exorbitant potential penalties
1 Counsel of record for all parties consented to the filing of this
brief. Pursuant to Supreme Court Rule 37.6, amicus curiae states that
no counsel for any party authored this brief in whole or in part and no
entity or person, aside from amicus curiae, its members, or its counsel,
made any monetary contribution intended to fund the preparation or
submission of this brief.
2
for even inadvertent violations of the Act, often lead the
Chamber’s members to avoid or abandon valuable
activities and projects altogether.
INTRODUCTION AND
SUMMARY OF ARGUMENT
To answer the question presented, this Court need look
no farther than the decision that effectively gave rise to it:
Rapanos v. United States, 547 U.S. 715 (2006). That
fractured decision has led to confusion in the lower courts
and substantial swings in interpretation by the agencies
charged with implementing the Clean Water Act.2 Yet,
Rapanos includes within it a simple path forward. In short,
the Court can and should adopt the Rapanos plurality’s
test for determining whether wetlands are “waters of the
United States” under the Clean Water Act, and reject the
concurrence’s significant nexus test. The plurality’s test is
correct as a matter of law. And though it does not answer
every question about CWA jurisdiction, it is sufficient to
resolve this case and to provide significant and needed
clarity to the numerous industries affected by the CWA.
I. This Court should adopt the Rapanos plurality’s
reading of “waters of the United States” for several
reasons. Most importantly, the plurality’s test follows from
the statutory text as understood in light of basic principles
of statutory interpretation that this Court has repeatedly
reiterated in the years since Rapanos. Moreover, the
significant nexus test produces unpredictable and
The agencies are the United States Environmental Protection
Agency (EPA) and the United States Army Corps of Engineers (Corps)
(collectively, the agencies).
2
3
questionable results. And finally, the significant nexus test
fails several clear statement rules.
II. A clearly delineated reading of “waters of the United
States” is critical for business and consistent with
environmental protection. The reality is that permitting
costs can and do inhibit project development, including
important climate, clean energy, resilience, and water
management projects. A clear and predictable
understanding of “waters of the United States” is needed
to reduce these substantial costs and to ensure they are not
imposed more broadly than required. Further, it is plain
from the CWA that Congress never intended to require
federal CWA permitting over all water resources. Other
regulatory tools are better suited to protecting the water
quality of transitory and ephemeral waters.
ARGUMENT
I.
This Court Should
Plurality’s Analysis.
Adopt
the
Rapanos
The Rapanos plurality concluded that there is “only
[one] plausible interpretation” of “waters of the United
States.” 547 U.S. at 739 (plurality opinion). The term
“includes only those relatively permanent, standing or
continuously flowing bodies of water ‘forming geographic
features’ that are described in ordinary parlance as
‘streams[,] . . . oceans, rivers, [and] lakes.’” Ibid. And it
decidedly does not “encompass[] transitory puddles or
ephemeral flows of water.” Id. at 733. In turn, “only those
wetlands with a continuous surface connection to bodies
that are ‘waters of the United States’ in their own right, so
that there is no clear demarcation between ‘waters’ and
4
wetland, are ‘adjacent to’ such waters.” Id. at 742. That
continuous connection, the plurality explained, makes the
wetlands “as a practical matter indistinguishable from
waters of the United States” and thus supports the “legal
judgment” that the wetlands are themselves such waters.
Id. at 755.
In contrast, Justice Kennedy opined in his concurring
opinion that “jurisdiction over wetlands depends upon the
existence of a significant nexus between the wetlands in
question and navigable waters in the traditional sense.” Id.
at 779 (Kennedy, J., concurring in judgment). That nexus,
he explained, “must be assessed in terms of the statute’s
goals and purposes.” Ibid. Specifically, “wetlands possess
the requisite nexus . . . if the wetlands, either alone or in
combination with similarly situated lands in the region,
significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood
as ‘navigable.’” Id. at 780. According to Justice Kennedy,
“the rationale for Clean Water Act regulation” of wetlands
is that they “can perform critical functions related to the
integrity of other waters.” Id. at 779.
For at least the following reasons, this Court should
adopt the Rapanos plurality analysis over the significant
nexus test as the correct reading of the CWA. First, the
plurality’s test, unlike the significant nexus test, accords
with the text of the Act and follows from settled principles
of statutory interpretation that this Court has often
reiterated in the years since Rapanos. Second, the
significant nexus test’s departure from the statutory text,
and the test’s inherent subjectivity, has resulted, as the
plurality anticipated, in unpredictable and highly
questionable results. Third, the unpredictability and
5
manipulability of the significant nexus test, in turn,
further warrant its rejection under several of this Court’s
clear-statement rules for interpreting statutes.
A.
The
Rapanos
plurality
followed
established principles of statutory
interpretation that this Court has often
reiterated.
1. In the years since Rapanos, this Court has
repeatedly stressed that statutory interpretation begins
with the text. Ross v. Blake, 578 U.S. 632, 638 (2016)
(“Statutory interpretation, as we always say, begins with
the text.”); Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1169
(2021) (“We begin with the text.”). This requires careful
attention to the specific words Congress chose, including,
as relevant here, the use of the definite article. Nielsen v.
Preap, 139 S. Ct. 954, 965 (2019) (giving meaning to
“Congress’s use of the definite article in ‘when the alien is
released’”). Niz-Chavez v. Garland, 141 S. Ct. 1474, 1483
(2021) (finding “‘the notice’” at a particular “‘time’” refers
to “a discrete moment, not an ongoing endeavor”). Or the
use of the plural, rather than singular, form. Life Techs.
Corp. v. Promega Corp., 137 S. Ct. 734, 742 (2017).
In discerning what Congress meant by particular
statutory terms, this Court looks to ordinary meaning as
set forth in dictionaries. See, e.g., Little Sisters of the Poor
Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367,
2380 (2020) (use of dictionaries to define “provide”); Babb
v. Wilkie, 140 S. Ct. 1168, 1173 (2020) (dictionary definition
of “free from”). This is particularly so where a statutory
term is undefined. HollyFrontier Cheyenne Refining, LLC
v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2176 (2021)
6
(“Where Congress does not furnish a definition of its own,
we generally seek to afford a statutory term ‘its ordinary or
natural meaning.’”); Sandifer v. U.S. Steel Corp., 571 U.S.
220, 227 (2014) (“It is a ‘fundamental canon of statutory
construction’ that, ‘unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary,
common meaning.’”). But even when a statutory term or
phrase is defined, this Court has stressed that the
individual words retain some of their ordinary meaning.
For example, this Court found it was required to give effect
to the word “habitat” in the defined term “critical habitat”
as the statutory definition explained only what makes
habitat critical, not what makes it “habitat.” Weyerhaeuser
Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368–69
(2018).
Unless this Court finds the statute ambiguous, the
“‘analysis begins and ends with the text.’” Little Sisters of
the Poor Saints Peter & Paul Home, 140 S. Ct. at 2380
(quoting Octane Fitness, LLC v. ICON Health & Fitness,
Inc., 572 U.S. 545, 553 (2014) (emphasis added)); see also
Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 631
(2018) (where statute is “‘unambiguous,’” “‘our inquiry
begins with the statutory text, and ends there as well’”)
(quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176,
183 (2004) (plurality opinion)); Hardt v. Reliance Standard
Life Ins. Co., 560 U.S. 242, 251 (2010) (citations omitted)
(“We must enforce plain and unambiguous statutory
language according to its terms.”).
And ambiguity, this Court has stressed, is rare. For
both rules and statutes, “a court must exhaust all the
‘traditional tools’ of construction” before finding ambiguity.
Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (quoting
7
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843, n.9 (1984)). Put simply, “hard interpretive
conundrums . . . can often be solved.” Ibid.; see also Wooden
v. United States, 142 S. Ct. 1063, 1075 (2022) (Kavanaugh,
J., concurring) (“[A] court must exhaust all the tools of
statutory interpretation . . . [and having done so] often
determines the best reading of the statute.”); Kisor, 139 S.
Ct. at 2448 (Kavanaugh, J., concurring in judgment) (“If a
reviewing court employs all of the traditional tools of
construction, the court will almost always reach a
conclusion about the best interpretation of the [law] at
issue.”).
As a result, assessments of the policy and perceived
purpose of a statute are often of no importance. When the
text dictates a result—which, as noted, this Court has said
should almost always be true—there is no place for
freestanding appeals to policy and purpose. See Badgerow
v. Walters, No. 20-1143, 2022 WL 959675, at *8 (U.S. Mar.
31, 2022) (rejecting policy arguments because “Congress
has made its call”). In the last five years, this Court has
turned aside “surmise about legislative purpose and
arguments from public policy,” HollyFrontier, 141 S. Ct. at
2181, and rejected the Government’s “last ditch effort to
salvage its atextual interpretation” of an immigration
statute by resorting to the alleged purpose and legislative
history of a statute, Pereira v. Sessions, 138 S. Ct. 2105,
2119 (2018); see also N.L.R.B. v. SW Gen., Inc., 137 S. Ct.
929, 942 (2017) (when the statutory “text is clear, [the
Court] need not consider this extra-textual evidence”);
Chamber of Commerce of the U.S. v. Whiting, 563 U.S. 582,
598–99 (2011) (declining to defer to a statute’s alleged
purpose and history “[a]bsent any textual basis”).
8
2. The Rapanos plurality’s analysis tracks all of these
principles. The opinion begins and ends with the text when
considering the phrase “the waters of the United States.”
It gives due weight to Congress’s choice of the definite
article “the” and the plural term “waters,” concluding that
Congress referred not to water in general but “more
narrowly to water[s].” Rapanos, 547 U.S. at 732 (plurality
opinion). The opinion then notes that “the waters” is
undefined and so refers to the dictionary. Ibid. (quoting
Webster’s New International Dictionary 2882 (2d ed.
1954)). Finally, the opinion also looks to the ordinary
meaning of “navigable waters”—connoting “at bare
minimum, the ordinary presence of water”—even though
this term is defined in the statute to mean “the waters of
the United States.” Id. at 734.
The plurality also hewed closely to the text in
determining when adjacent wetlands are jurisdictional.
The statutory text refers to adjacent wetlands as a subset
of “navigable waters” or “waters of the United States.” See
33 U.S.C. § 1344(g) (referring to “navigable waters . . .
including wetlands adjacent thereto”). Thus, the plurality
explained, there must be “an adequate basis for a legal
judgment that adjacent wetlands may be defined
[themselves] as waters under the Act.” Rapanos, 547 U.S.
at 741 (plurality opinion); see also id. at 755 (there must be
a “nexus [that] could conceivably cause them to be ‘waters
of the United States’”). That is what led the plurality to
conclude that “only those wetlands with a continuous
surface connection to bodies that are ‘waters of the United
States’ in their own right, so that there is no clear
demarcation between ‘waters’ and wetlands, are ‘adjacent
to’ such waters and covered by the Act.” Id. at 742. That
9
physical connection satisfies the text by ensuring that the
wetlands are “as a practical matter indistinguishable from
waters of the United States.” Id. at 755.
Finally, the plurality’s analysis is also consistent with
this Court’s recent and strenuous admonitions that
statutory ambiguity rarely, if ever, occurs. The plurality
acknowledged that “‘waters of the United States’ is in some
respects ambiguous,” but it did not stop there. Id. at 752.
Applying all the tools of statutory construction, it
ultimately identified the “only plausible interpretation” of
the phrase “the waters of the United States,” determining
that this phrase “includes only those relatively permanent,
standing[,] or continuously flowing bodies of water,” id. at
739, and does not include ephemeral waters, like “storm
drains [or] dry ditches” because “[t]he scope of that
ambiguity . . . does not conceivably extend to whether
storm drains and dry ditches are ‘waters,’” id. at 752.
3. Justice Kennedy’s concurring opinion in Rapanos
does not follow these principles. Instead, it relies on the
perceived policy and purpose of the statute, as both Justice
Kennedy and the plurality explained. As the plurality
noted, the concurring opinion would lead “[o]ne [to]
think . . . that the crucial provision of the text of the CWA
was a jurisdictional requirement of ‘significant nexus’
between wetlands and navigable waters.” Id. at 754–55.
But “that phrase appears nowhere in the Act.” Id. at 755.
“Instead of limiting its meaning by reference to the text it
was applying,” the concurring opinion resorts to “the
familiar tactic of substituting the purpose of the statute for
its text, freeing the Court to write a different statute that
achieves the same purposes.” Ibid.
10
Indeed, Justice Kennedy admitted as much. He
reasoned that “the Corps’ jurisdiction over wetlands
depends upon the existence of a significant nexus between
the wetlands in question and navigable waters in the
traditional sense.” Id. at 779 (Kennedy, J., concurring in
judgment). And that nexus, in turn, “must be assessed in
terms of the statute’s goals and purposes.” Ibid. (emphasis
added). He then proceeded to discuss just one of Congress’s
stated purposes in the CWA—to “‘restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters,’” ibid. (quoting 33 U.S.C. § 1251(a))—and then
incorporated that language verbatim into his significant
nexus test. Id. at 780 (finding jurisdiction where wetlands
“significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood
as ‘navigable’”).
That is the opposite of how this Court interprets
statutes. If there is any lesson from the Court’s precedents
on statutory interpretation since Rapanos, it is that
statutory purpose is, as the Rapanos plurality said, the
“last resort of extravagant interpretation.” Id. at 752
(plurality opinion). Last Term, for example, the majority
and the dissent in HollyFrontier found very little common
ground in a dispute over the meaning of a part of the Clean
Air Act. The one thing they did agree on was the
importance of being guided by text and structure, and not
purpose. 141 S. Ct. at 2183 (noting that “our analysis can
be guided only by the statute’s text,” as “both sides can offer
plausible accounts of legislative purpose and sound public
policy”); Id. at 2190 (Barrett, J., dissenting) (“In the end,
the parties’ dueling accounts of purpose underscore the
wisdom of sticking to the statutory text and structure.”).
11
B.
The significant nexus test produces
unpredictable and highly questionable
results.
1. The significant nexus test not only fails to comport
with established principles of statutory interpretation, but
also allows for unpredictable and often sweeping assertions
of federal jurisdiction. The significant nexus test relies on
subjective determinations about when a nexus is
“significant” and what it means to affect the “chemical,
physical, and biological integrity” of a water. That provides
little certainty as to which waters may or may not be
covered, as evidenced by the wide range of conflicting
decisions in the lower courts over the last fifteen years.
One area of disagreement is about whether any, and if
so how much, flow is required to establish a significant
nexus. In United States v. Chevron Pipe Line Co., 437 F.
Supp. 2d 605 (N.D. Tex. 2006), for example, the court held
that “the connection of generally dry channels and creek
beds will not suffice to create a ‘significant nexus’ to a
navigable water simply because one feeds into the next
during the rare times of actual flow.” Id. at 613. But
another court found jurisdiction over a creek that was “dry
during much of the year” based on the existence of flow
after precipitation events. United States v. Moses, 496 F.3d
984, 991 (9th Cir. 2007).
Another area of disagreement concerns whether—and,
if so, how much—distance from a navigable water makes a
difference. The Fourth Circuit has noted that it can
“imagine . . . that wetlands next to a tributary with
minimal flow might be significant to a river one quarter
mile away, whereas wetlands next to a tributary with
12
much greater flow might have only insubstantial effects on
a river located twenty miles away.” Precon Dev. Corp., Inc.
v. U.S. Army Corps of Eng’rs, 633 F.3d 278, 294–95 (4th
Cir. 2011) (remanding for Corps to gather evidence of a
significant nexus), remanded to 984 F. Supp. 2d 538, 562
(E.D. Va. 2013) (finding a significant nexus), aff’d, 603 F.
App’x 149, 150 (4th Cir. 2015). Other courts have similarly
acknowledged that the “considerable distance” from
navigable waters might cause “any connection between
them to be speculative and insubstantial at best.” Hawkes
Co., Inc. v. U.S. Army Corps of Eng’rs, No. 13–107
ADM/TNL, 2017 WL 359170, at *2, 4 (D. Minn. Jan. 24,
2017) (insufficient evidence to establish a significant nexus
based on flow events, volume, duration, and frequency of
flow for wetlands located more than 90 river miles and 40
aerial miles from the nearest navigable water); see Lewis
v. United States, No. 18-1838, 2020 WL 4798496, at *7
(E.D. La. Aug. 18, 2020) (“‘As the distance from the
tributary to the navigable water increases, it [is]
increasingly important to document whether the tributary
and its adjacent wetlands have a significant nexus . . . .’”).
But some courts have concluded that tens or even hundreds
of miles do not preclude a finding of a significant nexus.
See, e.g., United States v. Vierstra, 803 F. Supp. 2d 1166,
1172 (D. Idaho 2011) (finding a significant nexus even
though the defendant claimed “the closest navigable water
is 421 miles away”); United States v. HVI Cat Canyon, Inc.,
314 F. Supp. 3d 1049, 1063–64 (C.D. Cal. 2018) (noting that
a distance of “‘tens of miles’” between a wetland and
traditional waters did not preclude the existence of CWA
jurisdiction).
13
Lower courts have even reached different conclusions
about whether the significant nexus test is limited to
wetlands or applies to other water features, such as
tributaries. Compare Benjamin v. Douglas Ridge Rifle
Club, 673 F. Supp. 2d 1210, 1215 n.2 (D. Or. 2009) (“Justice
Kennedy limits the applicability of his legal standard to
wetlands adjacent to jurisdictional waters.”), and
Simsbury-Avon Pres. Soc’y, LLC v. Metacon Gun Club, Inc.,
472 F. Supp. 2d 219, 227 (D. Conn. 2007) (“[T]he Court
considers whether the . . . site is a ‘wetland’ to which the
Rapanos analysis is applicable.”), aff’d on other grounds,
575 F.3d 199 (2d Cir. 2009), with Envtl. Prot. Info. Ctr. v.
Pac. Lumber Co., 469 F. Supp. 2d 803, 823 (N.D. Cal. 2007)
(analyzing CWA jurisdiction over a non-navigable
tributary using the significant nexus standard), and
Vierstra, 803 F. Supp. 2d at 1171–72 (noting that “[i]t is an
open question as to whether Justice Kennedy’s concurrence
applies in the tributary context”).
Adding to the complexity and unpredictability is the
breadth of evidence that courts have accepted to establish
a significant nexus. Courts have said that the test can be
satisfied by “[q]uantitative or qualitative evidence.” Precon
Dev. Corp., 603 F. App’x at 151–52. Some circuits say that
no “‘laboratory analysis’ of soil samples, water samples, or
[ ] other tests” are required to prove a significant nexus.
United States v. Cundiff, 555 F.3d 200, 211 (6th Cir. 2009).
Instead, they have accepted expert testimony about
wetlands performing “ecological functions,” such as
“temporary and long-term water storage, filtering of the
acid runoff and sediment from [a] nearby mine, and
providing an important habitat for plants and wildlife.” Id.
at 211; see also Foster v. U.S. Envtl. Prot. Agency, No. 14-
14
16744, 2017 WL 3485049, at *13 (S.D. W.Va. Aug. 14, 2017)
(noting testimony that wetlands “support[] and exchang[e]
aquatic life with downstream waters” and “process[]
nutrients, materials, and pollutants”); United States v.
Donovan, 661 F.3d 174, 186 (3d Cir. 2011) (noting
testimony that wetlands “help to remove nitrogen,” “help
sequester pollutants,” and “play[] an important role in the
‘aquatic food web’”).
The 2015 Clean Water Rule, 80 Fed. Reg. 37,054 (June
29, 2015), which was “guided by” the significant nexus test,
perhaps best illustrates just how malleable the test can be.
The agencies claimed that the Rule was fully consistent
with Justice Kennedy’s concurrence. But at least one court
disagreed, finding the 2015 Clean Water Rule overbroad
and explaining that the Rule’s definition of “tributary”
included “vast numbers of waters that are unlikely to have
a nexus to navigable waters within any reasonable
understanding of the term.” North Dakota v. U.S. Envtl.
Prot. Agency, 127 F. Supp. 3d 1047, 1056 (D.N.D. 2015).
Past application of the significant nexus standard, the
court further concluded, led to “EPA regulation of waters
that [did] not bear any effect on the ‘chemical, physical, and
biological integrity’ of any navigable-in-fact water.” Id. at
1056.
2. The subjective nature of the significant nexus test
also has allowed the agencies to assert jurisdiction over
vast amounts of dry and mostly dry land. For example,
applying the significant nexus test, the Fourth Circuit
found that the Corps had jurisdiction over wetlands
adjacent to a man-made drainage ditch that connected to
another ditch that in turn flowed into the Northwest River
three miles downstream. Precon Dev. Corp., 603 F. App’x
15
at 151. The court found jurisdiction despite evidence that
the second ditch contained flow only after “two-year, tenyear, and fifty-year storm events,” and that the Northwest
River “ha[d] flooded twice in the past fifteen years.” Id. at
152, 154. Courts have also found jurisdiction over a creek
that was “dry during much of the year,” United States v.
Moses, 496 F.3d 984, 991 (9th Cir. 2007), a channel that
“sometimes run[s] dry,” San Francisco Baykeeper v. W. Bay
Sanitary Dist., 791 F. Supp. 2d 719, 766 (N.D. Cal. 2011),
and drainages that have flow for just a few days to
approximately a month per year, HVI Cat Canyon, Inc.,
314 F. Supp. 3d at 1061, 1063.
The agencies have also successfully asserted
jurisdiction under the significant nexus test over isolated
water features. In one case, a court found that the
significant nexus test reached constructed salt ponds that
are walled off from San Francisco Bay. San Francisco
Baykeeper v. U.S. Envtl. Prot. Agency, 492 F. Supp. 3d
1030, 1037 (N.D. Cal. 2020). In another, the court found
jurisdiction over a wetland separated from a covered water
by a fifteen-foot “strip of dry upland.” United States v.
Bailey, 516 F. Supp. 2d 998, 1007 (D. Minn. 2007). The
significant nexus test has even been found to reach an
isolated “[p]ond and its wetlands” based on evidence that
they “support substantial bird, mammal and fish
populations” that are part of “the Russian River
ecosystem.” N. Cal. River Watch v. City of Healdsburg, 496
F.3d 993, 1001 (9th Cir. 2007).
This jurisdictional overreach is amplified by Justice
Kennedy’s invitation to aggregate similarly situated
wetlands in assessing the existence of a significant nexus.
See Rapanos, 547 U.S. at 780 (Kennedy, J., concurring in
16
judgment). The 12-year dispute over a property in Orchard
Hill Building Co. v. U.S. Army Corps of Engineers is
illustrative of how far this principle might go. 893 F.3d
1017 (7th Cir. 2018). There, the Corps aggregated 165
wetlands in a general watershed to claim jurisdiction over
a 13-acre area located 11 miles from the nearest navigable
water source. Id. at 1023. This ambitious effort failed,
because the agency did not even attempt to “show[] or
explain[] how that land is in fact similarly situated.” Id. at
1026; see Precon Dev. Corp., 633 F.3d at 292–93 (affirming
jurisdiction over aggregated wetlands because Justice
Kennedy’s aggregation instruction “is a broad one, open for
considerable interpretation and requiring some ecological
expertise to administer”). Nevertheless, the Corps’
aggressive invocation of the aggregation principle in
Orchard Hill Building Co. shows how broadly the
significant nexus test potentially sweeps.
C.
The significant nexus test fails multiple
clear-statement rules.
The unpredictable and extensive reach of the significant
nexus test not only presents immense practical challenges
for regulated entities, but also provides further reason for
rejecting the test. The test triggers and fails at least three
of this Court’s clear-statement rules.
In several cases, this Court has held that it will
interpret a federal statute to have certain effects only with
clear indication from Congress. First, a clear statement is
required where a statutory interpretation “would result in
a significant impingement of the States’ traditional and
primary power over land and water use.” Solid Waste
Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531
17
U.S. 159, 174 (2001) (SWANCC) (citing Hess v. Port Auth.
Trans-Hudson Corp., 513 U.S. 30, 44 (1994)). Second, this
Court avoids statutory interpretations that “assign to an
agency decisions of vast ‘economic and political
significance’” or “bring about an enormous and
transformative expansion in [the agency’s] regulatory
authority without clear congressional authorization.” Util.
Air Regulatory Grp. v. Envtl. Prot. Agency, 573 U.S. 302,
324 (2014). Third, “longstanding principles of lenity . . .
demand resolution of ambiguities in criminal statutes in
favor of the defendant.” Hughey v. United States, 495 U.S.
411, 422 (1990).
All three of these clear-statement rules support the
Rapanos plurality’s reading of the CWA over the
significant nexus test. As described below, the significant
nexus test triggers all three clear-statement rules. And yet
there is no clear indication in the CWA that Congress
intended the significant nexus test. There is certainly
nothing in the Act that evinces a clear intent to sweep in
land features such as ephemeral washes—perhaps the
most critical practical disagreement between the plurality
test and the significant nexus test. Compare Rapanos, 547
U.S. at 733 (plurality opinion) (rejecting coverage of
“transitory puddles or ephemeral flows of water”), with id.
at 769 (Kennedy, J., concurring in judgment) (concluding
that ephemeral streams and ditches should be covered).
First, clear congressional authorization is required for
the significant nexus test because it “result[s] in significant
impingement of the States’ traditional and primary power
over land and water use.” SWANCC, 531 U.S. at 174. In
SWANCC, this Court invoked the federalism clearstatement rule when the agencies sought to reach isolated
18
“ponds and mudflats.” Ibid. The significant nexus test has
proven to be similarly far-reaching. Fifteen years ago, the
Rapanos plurality predicted that the significant nexus test
could be used to grant the federal government “the scope of
discretion that would befit a local zoning board.” 547 U.S.
at 738 (plurality opinion). And as explained above, that
prediction has borne out. The significant nexus test has
allowed the agencies to assert authority over vast stretches
of water and land, including usually dry channels and
isolated wetlands. Supra Part I.B.
In addition, the significant nexus test has resulted in
the imposition of substantial added regulatory
responsibilities on states that administer permit programs.
For example, in 2015, EPA projected that the Clean Water
Rule would impose upon the States additional obligations
of between $798,000 and $1.3 million for the CWA Section
404 program and between $527,000 and $770,000 per year
for the National Pollutant Discharge Elimination System
program. See EPA, Economic Analysis of the EPA-Army
Clean Water Rule 19, 25–28 (May 20, 2015).3
Second, the significant nexus test requires a clear
statement because it endows the agencies with
transformative and expansive authority. In UARG, this
Court declined to grant, without a clear statement from
Congress, “[t]he power to require permits for the
construction and modification of tens of thousands, and the
operation of millions, of small sources nationwide.” 573
U.S. at 324. Such expansive authority, this Court said,
https://www.epa.gov/sites/default/files/2015-06/documents/50 8final_clean_water_rule_economic_analysis_5-20-15.pdf (last visited
Apr. 13, 2022).
3
19
“falls comfortably within the class of authorizations” for
which it has required “clear congressional authorization.”
Ibid. More recently, this Court rejected an eviction
moratorium imposed by the Centers for Disease Control in
response to the COVID-19 pandemic, reasoning that under
the agency’s view of the statute it could exercise “a
breathtaking amount of authority” to “mandate free
grocery delivery” or “free computers to enable people to
work from home.” Ala. Ass’n of Realtors v. Dep’t of Health
& Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam).
The significant nexus standard similarly represents a
transformative expansion of the agencies’ authority. The
CWA envisioned a limited federal role in the regulation of
water resources, as it expressly “recognize[s], preserve[s],
and protect[s] the primary responsibilities and rights of
States” over “land and water resources.” 33 U.S.C.
§ 1251(b). But as the plurality pointed out—and as the last
fifteen years have shown—the significant nexus test grants
the federal government the wide-ranging authority “to
function as a de facto regulator of immense stretches of
intrastate land.” Rapanos, 547 U.S. at 738 (plurality
opinion).
Third, and finally, the severe penalties imposed for
violations of the CWA underscore that if Congress had
intended to vest authority in the agencies to regulate under
the significant nexus test, such a grant of authority should
have been expressly stated. Under the Fifth
and Fourteenth Amendments, neither the federal
government nor the States may deprive individuals of “life,
liberty, or property without due process of law.” U.S. Const.
amends. V, XIV. That guarantee requires that
governments seeking to take a person’s freedom or
20
possessions adhere to “those settled usages and modes of
proceeding” found in the common law. Murray’s Lessee v.
Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,
277 (1855). Those “settled usages” include the rule that the
law must provide fair notice of what it demands. See
Sessions v. Dimaya, 138 S. Ct. 1204, 1224–25 (2018)
(Gorsuch, J., concurring in part and concurring in
judgment); Connally v. Gen. Const. Co., 269 U.S. 385, 391
(1926). Thus, “[i]n the construction of a penal statute, it is
well settled . . . that all reasonable doubts concerning its
meaning ought to operate in favor of the [defendant].”
Harrison v. Vose, 50 U.S. (9 How.) 372, 378 (1850). These
“longstanding principles of lenity . . . preclude [a court’s]
resolution of the ambiguity . . . on the basis of general
declarations of policy in the statute and legislative history.”
Hughey, 495 U.S. at 422. The rule of lenity applies to
statutes like the CWA that impose both civil and criminal
penalties. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004)
(“Because we must interpret the statute consistently,
whether we encounter its application in a criminal or
noncriminal context, the rule of lenity applies.” (citing
United States v. Thompson/Center Arms Co., 504 U.S. 505,
517–18 (1992) (plurality opinion)).
For this reason, as well, this Court should reject the
easily manipulated significant nexus test in favor of the
Rapanos plurality’s test. As discussed, the plurality
opinion appropriately identifies the “only plausible
interpretation” of the phrase “the waters of the United
States” after applying all the tools of statutory
construction, and thus does not implicate the rule of lenity.
See Wooden, 142 S. Ct. at 1075 (Kavanaugh, J., concurring)
(“a court must exhaust all the tools of statutory
21
interpretation before resorting to the rule of lenity”); id.
1085–86 (Gorsuch, J., concurring) (“Where the traditional
tools of statutory interpretation yield no clear answer, the
judge’s next step . . . is to lenity.”). But even if the phrase
remained ambiguous after applying the relevant tools, the
rule of lenity would require the rejection of the significant
nexus test and the adoption of the plurality’s test.
II.
A Clearly Delineated Understanding of
“Waters of the United States” Is Critical for
Business and Consistent with Environmental
Protection.
A.
Predictability
and
efficiency
are
necessary for key infrastructure and
other economically beneficial projects to
move forward.
CWA permitting can impose significant costs. One
study found that estimated permitting costs range from
$3,100 to $217,600 for general permits and from $10,900 to
$2,376,800 for individual permits, when adjusted to 2020
dollars. David Sunding & Gina Waterfield, Review of the
Environmental Protection Agency and Department of the
Army 2021 Economic Analysis for the Proposed “Revised
Definition of ‘Waters of the United States’” Rule at 12 (Feb.
7, 2022) (Sunding/Waterfield).4 But that is far from all. The
cost of permitting includes not only the expenses associated
with the permitting process itself, but the wide variety of
other expenses that lead up to or arise out of that process,
including costs relating to avoidance or mitigation
https://www.afpm.org/sites/default/files/issue_resources/Fina
l-Exhibit-10.pdf (last visited Apr. 13, 2022).
4
22
measures. Id. at 9–11. Avoidance and minimization
measures, for example, encompass the actions taken to
analyze appropriate alternatives and select the leastdamaging project type, configuration, or location. Id. at 9;
see also 40 C.F.R. § 230.92. Mitigation measures are those
taken to offset unavoidable project impacts. Ibid. These
costs are significant and may exceed those associated with
the actual permitting process itself. Sunding/Waterfield at
9–10.
Pre-construction delays can also “add tens of thousands
to millions of dollars to a project’s bottom line.” U.S.
Chamber of Commerce, Comment Letter on Proposed
Revised Definition of “Waters of the United States” at 1
(Feb. 7, 2022) (Chamber Comment Letter).5 Among other
things, developers waiting for permits must carry capital,
which may increase interest expenses on loans. David
Sunding & David Zilberman, The Economics of
Environmental Regulation by Licensing: An Assessment of
Recent Changes to the Wetland Permitting Process, 42 NAT.
RESOURCES J. 59, 82 (2002). The longer the regulatory
process takes, the greater the total costs. Id. And the more
complex the test for determining jurisdiction, the longer
the regulatory process will take.
A clear and predictable understanding of “waters of the
United States” is needed to reduce these substantial costs
and to ensure they are not imposed more broadly than
required. For example, a small mining company in
Wyoming has incurred thousands of dollars in unnecessary
investigation and analysis costs to determine whether
https://www.regulations.gov/comment/EPA-HQ-OW-2021-06020437 (last visited Apr. 13, 2022).
5
23
certain features were jurisdictional under the CWA and to
complete the CWA section 404 permitting process.
Chamber Comment Letter at 4. The relevant mining
operations are in a part of the arid west where total
participation ranges from 5 to 12 inches annually, about
half of which typically falls as short duration, high
intensity rainstorms and half as winter snow. Ibid. As a
result, most of the drainage flows only in response to these
infrequent precipitation events and would be classed as
ephemeral drainages. Ibid. The Corps ultimately
determined that no Section 404 permit was required, but
only after the company incurred substantial costs in both
time and money. Ibid. Under the plurality’s test, this
mining company would not have had to undergo the
permitting process simply to determine that it never
needed a permit in the first place.
What is more, the reality is that permitting costs can
and do inhibit project development, including important
climate, energy transition, resilience, and water
management projects. To supply electricity while meeting
renewable energy and other climate goals, for instance,
utilities must construct, maintain, repair, and upgrade
thousands of miles of critical infrastructure, which
sometimes must cross wetlands and other waters. Utility
Water Act Group, Comment Letter on Proposed Revised
Definition of “Waters of the United States” at 5 (Feb. 7,
2022).6 Moreover, at existing and new generating facilities,
maintenance and construction are regularly performed on
stormwater conveyances (such as canals, ditches, washes,
swales, and arroyos) and other water management
https://www.regulations.gov/comment/EPA-HQ-OW-2021-06020601 (last visited Apr. 13, 2022).
6
24
features (such as cooling ponds, spill diversion ditches, and
intake and discharge canals). Id. at 7. Overly expansive
and unpredictable CWA jurisdiction inevitably delays and
potentially hinders all of these efforts. Id. at 56; see also
Chamber Comment Letter at 1 (“Efficient [CWA]
permitting is needed to accelerate project delivery that will
promote infrastructure improvements that are needed to
implement the Administration’s plan for economic growth,
including the ambitious policy agenda on the climate,
environmental stewardship, and environmental justice.”).
Uncertain and costly permitting can also hurt
conservation efforts. For example, farmers ordinarily have
an incentive to try to preserve topsoil on their land through
mitigation activities. American Farm Bureau Federation,
et al., Comment Letter on Proposed Revised Definition of
“Waters of the United States” at 6 (Feb. 7, 2022);
Pennsylvania Farm Bureau, Comment Letter on Proposed
Revised Definition of “Waters of the United States” at 3
(Feb. 7, 2022).7 But if they must apply for a federal permit
to determine whether they can engage in those efforts at
all and then incur yet more expense if they must actually
obtain the permit, farmers may simply choose not to
undertake any of these efforts, resulting in environmental
degradation rather than conservation. Ibid.
https://www.regulations.gov/comment/EPA-HQ-OW-2021-06020388 and https://www.regulations.gov/comment/EPA-HQ-OW-20210602-0314, respectively (last visited Apr. 13, 2022).
7
25
B.
Other legal and regulatory tools are
better suited to protecting the water
quality of transitory and ephemeral
waters.
A clearly delineated understanding of “waters of the
United States” is also fully consistent with ensuring the
protection of transitory and ephemeral waters. It is plain
from the CWA that Congress never intended to require
federal CWA permitting over all water resources. The
statute clearly contemplates that some waters are to be
protected through other means—including state, tribal,
and local action, as well as federal action under other
authorities.
To begin with, the CWA contemplates in numerous
provisions a robust role for state and tribal regulation. It
reserves to the States “primary responsibilities and rights”
over “land and water resources.” 33 U.S.C. § 1251(b). And
it expressly allows both States and Tribes to promulgate
regulations stricter than those mandated by the CWA. Id.
§§ 1370, 1377. Moreover, the statute affirmatively requires
States to develop—subject to EPA approval—various state
management plans, water quality standards, and total
maximum daily loads. For example, each State must
promulgate a comprehensive Water Quality Management
Plan that sets forth the best management practices to
control significant nonpoint sources of pollution. Id.
§§ 1288, 1313(e).
Congress also provided in the CWA technical and
financial assistance to state, municipal, and other federal
agency programs that improve water quality. This
assistance includes grants for States to address nonpoint
26
source pollution, id. § 1329, as well as grants related to
sewer stormwater discharge prevention, id. § 1255(a)(1),
and point and nonpoint source pollution in river basins, id.
§ 1255(b). The programs also cover waste-management,
waste-treatment, and pollutant-effects, id. § 1255(d), as
well as reduction of agricultural and sewage pollution in
rural areas, id. § 1255(e).
C.
A decision from this Court adopting the
Rapanos plurality’s test would provide
significant and needed clarity to all
businesses and landowners.
By adopting the Rapanos plurality standard, this Court
would provide significant and needed clarity to the
numerous industries and landowners affected by CWA
jurisdiction. Such a holding would make clear that “waters
of the United States” “includes only those relatively
permanent, standing or continuously flowing bodies of
water ‘forming geographic features’ that are described in
ordinary parlance as ‘streams[,] . . . oceans, rivers, [and]
lakes,’” Rapanos, 547 U.S. at 739 (plurality opinion), and
“only those wetlands with a continuous surface connection
to bodies that are ‘waters of the United States’ in their own
right, so that there is no clear demarcation,” id. at 742.
Importantly, adopting this standard would clarify that
“transitory puddles,” “ephemeral flows of water,” and
“[w]etlands with only an intermittent, physically remote
hydrologic connection to ‘waters of the United States’” are
excluded. Id. at 733, 742.
As shown, many of the problems that have plagued
regulated entities over the past fifteen years have resulted
from the vagueness of the significant nexus test regarding
27
precisely these sorts of land and water features. By
clarifying that such features are not subject to CWA
jurisdiction, this Court will provide much needed certainty
and predictability to regulated entities, while respecting
the statutory text that Congress enacted.8
8 Further questions about the scope of the CWA’s jurisdiction will
undoubtedly remain. For example, the Sacketts did not contest EPA’s
designation of Priest Lake as a traditionally navigable water, and thus
the question of what constitutes a traditionally navigable water is not
presented in this case. Importantly, the Sacketts’ property does not
have a continuous surface connection to any water.
28
CONCLUSION
The decision below should be reversed.
Respectfully submitted,
HUNTON ANDREWS KURTH LLP
ELBERT LIN
Counsel of Record
951 East Byrd Street, East Tower
Richmond, VA 23219
elin@HuntonAK.com
(804) 788-8200
KERRY L. MCGRATH
ERICA N. PETERSON
ANTHONY R. GUTTMAN
HUNTON ANDREWS KURTH LLP
2200 Pennsylvania Avenue, NW,
Suite 900
Washington, D.C. 20037
(202) 955-1500
ANDREW R. VARCOE
STEPHANIE A. MALONEY
U.S. CHAMBER
LITIGATION CENTER
1615 H Street, NW
Washington, D.C. 20062
(202) 463-5337
Counsel for Amicus Curiae
April 18, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.