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, ET UX.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to

The United States Court of Appeals

For the Ninth Circuit

BRIEF OF AMICUS CURIAE STATE OF

ALASKA IN SUPPORT OF PETITIONERS

TREG R. TAYLOR

Attorney General

State of Alaska

DAVID A. WILKINSON*

JULIE PACK

Assistant Attorneys General

1031 W. 4th Ave., Ste 200

Anchorage, AK 99501

(907) 269-5100

david.wilkinson@alaska.gov

*Counsel of Record

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE STATE OF

ALASKA ...................................................................... 1

INTRODUCTION AND SUMMARY OF THE

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

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

The “significant nexus” test empowers

unchecked overreach in Alaska ....................... 4

II.

The Court should provide jurisdictional

certainty by reading the Act in line with

text, precedent, and respect for state authority over local matters .............................. 13

III.

States like Alaska responsibly manage

their waters and will continue to do so ......... 22

CONCLUSION ......................................................... 27

Cases

TABLE OF AUTHORITIES

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935).......................................... 21, 22

Baker Botts L.L.P. v. ASARCO LLC,

576 U.S. 121 (2015)................................................ 22

BFP v. Resolution Trust Corp.,

511 U.S. 531 (1994)................................................ 21

Bond v. United States,

572 U.S. 844 (2014).................................... 14, 20, 21

Cty. of Maui v. Haw. Wildlife Fund,

__ U.S. __, 140 S.Ct. 1462 (2020) .................... 19, 20

Dist. of Columbia v. Schramm,

631 F.2d 854 (D.C. Cir. 1980) ................................ 19

Gregory v. Ashcroft,

501 U.S. 452 (1991)................................................ 20

N. Cal. River Watch v. City of Healdsburg,

496 F.3d 993 (9th Cir. 2007) ................................... 5

Precon Dev. Corp., Inc. v. U.S. Army Corps of Eng’rs,

633 F.3d 278 (4th Cir. 2011) ................................... 5

Precon Dev. Corp., Inc. v. U.S. Army Corps of Eng’rs,

984 F. Supp. 2d 538 (E.D. Virg. 2013) .................... 5

iii

Rapanos v. United States,

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

Sackett v. Envtl. Prot. Agency,

566 U.S. 120 (2012)............................................ 8, 18

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159 (2001) ............ passim

The Daniel Ball,

10 Wall. 557 (1871) ................................................ 14

Tulkisarmute Native Cmty. Council v. Heinze,

898 P.2d 935 (Alaska 1995) ................................... 25

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

578 U.S. 590 (2016)................................................ 16

U.S. Forest Serv. v. Cowpasture River Preservation

Ass’n, __ U.S. __, 140 S.Ct. 1837 (2020) ................ 20

United States v. Appalachian Elec. Power Co.,

311 U.S. 377 (1940).......................................... 14, 15

United States v. HVI Cat Canyon, Inc.,

314 F. Supp. 3d 1049 (C.D. Cal. 2018) .................... 5

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985).......................... 4, 14, 15, 17, 18

West v. State, Bd. of Game,

248 P.3d 689 (Alaska 2010) ................................... 23

Constitution and Statutes

33 U.S.C. § 1251(a) .................................................... 23

33 U.S.C. § 1251(b) ............................................ 1, 3, 19

33 U.S.C. § 1311(a) .................................................... 14

33 U.S.C. § 1344(a) .................................................... 14

33 U.S.C. § 1344(g)(1) ................................................ 15

33 U.S.C. § 1362(7) .................................................... 13

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

Alaska Const., art. VIII, § 4 ...................................... 23

Alaska Stat. § 16.05.871 ............................................ 26

Alaska Stat. § 16.05.881 ............................................ 26

Alaska Stat. § 16.05.896 ............................................ 26

Alaska Stat. § 16.05.901 ............................................ 26

Alaska Stat. § 46.03.020 ............................................ 23

Alaska Stat. § 46.03.100 ............................................ 24

Alaska Stat. § 46.03.710 ............................................ 23

Alaska Stat. § 46.03.900(20) ..................................... 23

Alaska Stat. §§ 46.15.010-.270 .................................. 25

Regulations

33 C.F.R. § 328.3(c)(16) ............................................... 6

86 Fed. Reg. 69,372 (Dec. 7, 2021) ............................ 11

Alaska Admin. Code tit. 5, § 95.520.......................... 26

Alaska Admin. Code tit. 11, § 21.010........................ 25

Alaska Admin. Code tit. 11, § 21.120........................ 25

Alaska Admin. Code tit. 11, § 95.825........................ 25

Alaska Admin. Code tit. 18, ch. 69............................ 24

Alaska Admin. Code tit. 18, ch. 70............................ 24

Alaska Admin. Code tit. 18, ch. 72............................ 24

Alaska Admin. Code tit. 18, ch. 83............................ 24

Alaska Admin. Code tit. 18, § 70.015........................ 24

Alaska Admin. Code tit. 18, § 75.345........................ 24

Alaska Admin. Code tit. 18, § 83.310........................ 24

Alaska Admin. Code tit. 18, § 83.610........................ 24

Other Authorities

Alaska Water and Sewer Challenge, Alaska Dep’t

of Envtl. Conservation,

https://dec.alaska.gov/water/water-sewerchallenge/ ................................................................. 8

Samuel Taylor Coleridge, The Rime of the Ancient

Mariner (D. Appleton & Co. ed., 1857) ................... 3

Lindsey Flagstad et al., Univ. of Alaska

Anchorage, Wetlands Across Alaska: Statewide

Wetland Map and Assessment of Rare Wetland

Ecosystems (2018) ................................................ 6, 7

Impacts of the Proposed Waters of the United

States Rule on State and Local Government and

Stakeholders: Hearing before the Subcomm. on

Fisheries, Water, & Wildlife, Comm. on Env’t &

Pub. Works, 114th Cong. 3 (2015) ......................... 11

Letter from Jason Brune, Comm’r, Alaska Dep’t of

Envtl. Conservation, to Vance Stewart III and

John Goodin, Off. of the Assistant Sec’y of the

Army & Off. of Wetlands, Oceans &

Watersheds, U.S. Envtl. Prot. Agency 2 (Sept. 3,

2021), https://go.usa.gov/xur6H .............................. 6

Karl N. Llewellyn, The Common Law Tradition

(Little, Brown ed., 1960) ........................................ 16

John Muir, My First Summer in the Sierra

(Houghton Mifflin ed., 1911) ................................. 16

vii

Permafrost and Periglacial Hazards, Alaska Dep’t

of Nat. Res., https://go.usa.gov/xur6V ..................... 6

Antonin Scalia, The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) .............................. 16

Storm Water Program, Alaska Dep’t of Envtl.

Conservation, https://go.usa.gov/xuYq5 ................ 25

The Alaska Constitutional Convention, Proposed

Constitution for the State of Alaska: A Report to

the People of Alaska (1956) .................................... 23

U.S. Army Corps of Eng’rs, Regional Supplement

to the Corps of Engineers Wetland Delineation

Manual: Alaska Region (2007),

https://go.usa.gov/xurHu ................................. 2, 6, 7

U.S. Senate Comm. on Env’t and Pub. Works,

From Preventing Pollution of Navigable and

Interstate Waters to Regulating Farm Fields,

Puddles and Dry Land: A Senate Report on the

Expansion of Jurisdiction Claimed by the Army

Corps of Engineers and the U.S. Environmental

Protection Agency under the Clean Water Act

(2016).................................................................... 7, 8

Webster’s New International Dictionary 2882 (2d

ed. 1954) ................................................................. 14

INTEREST OF AMICUS CURIAE STATE OF

ALASKA 1

Alaska takes seriously its “traditional and primary power over land and water use.” Solid Waste

Agency of N. Cook Cty. (SWANCC) v. U.S. Army Corps

of Eng’rs, 531 U.S. 159, 174 (2001). The State has

strict environmental laws and skilled regulators to

manage and protect its vast quantities of local, nonnavigable water, working in balance with the Environmental Protection Agency and Army Corps of Engineers’ limited authority over navigable waters. The

text of the Clean Water Act supports that balance. The

Act was intended to “recognize, preserve, and protect

the primary responsibilities and rights of States.” 33

U.S.C. § 1251(b).

But, emboldened by the Ninth Circuit’s and

other lower courts’ endorsement of a far-reaching,

atextual interpretation of “navigable waters,” federal

agencies have asserted jurisdiction over land and water that fall plainly within the sphere of state and local

authority. This drains meaning from the Act’s recognition of state authority. And it burdens Alaska in particular.

With more land, water, and wetlands than any

other State—and a unique need to build infrastructure and develop and protect its resources—Alaska is

Petitioners have consented to Alaska filing an amicus

brief in this matter and Respondents have provided blanket consent. See this Court’s Rule 37.3(a).

disproportionately harmed by the agencies’ “immense

expansion of federal regulation of land use,” including

to over “half of Alaska.” Rapanos v. United States, 547

U.S. 715, 722 (2006) (plurality opinion). Alaska has a

strong interest in this Court construing “navigable

waters” in a way that remains true to the Act’s text

and respects state authority over local land and water.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Alaska is home to over three million lakes, more

than 900,000 navigable rivers and streams, and 63

percent of the Nation’s wetlands. Over 174 million

acres of Alaska’s 365-million-acre landmass have been

classified as wetlands. U.S. Army Corps of Eng’rs, Regional Supplement to the Corps of Engineers Wetland

Delineation Manual: Alaska Region 4 (2007),

https://go.usa.gov/xurHu (Regional Supplement).

Alaska has an immense diversity of climates and landforms. Its northern and western regions are characterized by “[v]ast expanses of treeless tundra.” Id. at 5.

There, temperatures and precipitation are low and

subterranean permafrost traps water near the surface. Alaska’s southeastern region is humid and temperate; precipitation is abundant and bedrock is shallow. Alaska’s interior has rolling hills, mountainous

slopes, snaking rivers, and expansive lowland forests.

The federal agencies have deemed millions of acres of

features in these diverse regions to be wetlands potentially subject to the Act—from “wet and moist tundra”

overlaying permafrost in the north and west, to muskegs and floodplains in the interior, to forested slopes

in the rainy southeast. See id. at 5–6. In Alaska, it

seems, federal agencies find “water, water, everywhere,” even without “any drop to drink.” Samuel Taylor Coleridge, The Rime of the Ancient Mariner 17 (D.

Appleton & Co. ed., 1857).

Alaska’s ubiquitous non-navigable water and

wetlands—the vast majority of which remain undeveloped—make the State disproportionately burdened by

federal incursion into public infrastructure projects

and private development. Under an expansive reading

of the Clean Water Act’s key jurisdictional phrases,

the State’s ability to manage its land and water is

hampered. The Act was crafted to “recognize, preserve, and protect the primary responsibilities and

rights of States to prevent, reduce and eliminate pollution [and] to plan the development and use . . . of

land and water resources.” 33 U.S.C. § 1251(b). It

should be read to do just that, not to unnecessarily

tether States and the public to an albatross of regulatory uncertainty, inefficiency, and expense.

Alaska respectfully urges the Court to bear in

mind the impact of its ruling on States, and Alaska in

particular, and to provide clear direction on the scope

of federal jurisdiction under the Act. Construing the

statutory terms “navigable waters” and “waters of the

United States” in line with their traditional, ordinary

meanings will give States and the public needed jurisdictional certainty. Under such a reading, Alaska may

count on federal authority covering only those wetlands that are indistinguishable from plainly jurisdictional waters, such as those waters that form “relatively permanent, standing, or continuously flowing

bodies.” Rapanos v. United States, 547 U.S. 715, 739

(2006) (plurality opinion). This plain, common-sense

reading most faithfully aligns with text, precedent,

and respect for state and local authority—authority

States like Alaska have the expertise and will to exercise.

ARGUMENT

The “significant nexus” test empowers unchecked overreach in Alaska.

Wetlands are often at the Clean Water Act’s jurisdictional frontier. Though wetlands are not themselves traditionally “navigable waters,” the Court has

upheld the application of the Act to wetlands that

physically abut them. United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 135 (1985). This

alone has placed a cloud of potential federal authority

on wetlands that sit at the banks of Alaska’s hundreds

of thousands of miles of traditionally navigable rivers

and streams. And with the Ninth Circuit definitively

adopting the “significant nexus” test as “the governing

standard,” Pet. App. A-26, vastly more wetlands may

fall under the Act. Nearly half of Alaska’s landmass is

now shrouded with jurisdictional uncertainty.

Rapanos’s fractured decision provided little

concrete guidance. See Rapanos v. United States, 547

U.S. 715, 758 (2006) (Roberts, C.J., concurring). Writing alone, Justice Kennedy would have deemed wetlands to be “navigable waters” if they shared a “significant nexus” with actual navigable waters; that is, if

the wetlands “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 (Kennedy, J., concurring in the judgment).

Resting on thin ecological threads woven between distant lands and waters, federal agencies and

lower courts have unfortunately applied the significant nexus test to subsume most local, non-navigable

waters and wetlands. See, e.g., N. Cal. River Watch v.

City of Healdsburg, 496 F.3d 993, 1000–01 (9th Cir.

2007) (holding a gravel pit was jurisdictional and noting, in addition to overflow, shared animal populations

and seepage through wetlands and an underground

aquifer); United States v. HVI Cat Canyon, Inc., 314 F.

Supp. 3d 1049, 1063 (C.D. Cal. 2018) (holding usually

dry drainages had a significant nexus to navigable water ten miles away); Precon Dev. Corp., Inc. v. U.S.

Army Corps of Eng’rs, 984 F. Supp. 2d 538, 540 (E.D.

Virg. 2013) (applying the significant nexus test as a

“flexible ecological inquiry”). The decision below is no

different, applying the significant nexus test to find

jurisdiction through linkages between a property, a

wetland, a creek, and a lake. Pet. App. A-35.

A. Jurisdictional ambiguity propels jurisdictional expansion. That is particularly troubling for

Alaska. Under the “significant nexus” test’s “flexible

ecological inquiry,” Precon Dev. Corp., Inc. v. U.S.

Army Corps of Eng’rs, 633 F.3d 278, 294 (4th Cir.

2011), any local water can eventually be linked to a

navigable waterbody. This leads to a “significant impingement of the States’ traditional and primary

power over land and water use” on an especially grand

scale in Alaska. See Solid Waste Agency of N. Cook

Cty. (SWANCC) v. U.S. Army Corps of Eng’rs, 531 U.S.

159, 174 (2001). That is true both because of Alaska’s

sheer quantity of water and its unique northern environments. Three examples stand out: permafrost wetlands, wetland mosaics, and forested wetlands.

Nearly 85 percent of Alaska’s landmass rests on

permafrost—layers of frozen rock, soil, and sediment.

Permafrost and Periglacial Hazards, Alaska Dep’t of

Nat. Res., https://go.usa.gov/xur6V (last visited Apr.

13, 2022). By blocking drainage, permafrost can cause

seasonally thawed surface soils to retain water and

show characteristics of wetlands (like hydric soils and

hydrophytic vegetation). 33 C.F.R. § 328.3(c)(16).

These permafrost wetlands can thus subject

“broad swaths of Alaska’s North Slope” to federal jurisdiction. See Letter from Jason Brune, Comm’r,

Alaska Dep’t of Envtl. Conservation, to Vance Stewart

III and John Goodin, Off. of the Assistant Sec’y of the

Army & Off. of Wetlands, Oceans & Watersheds, U.S.

Envtl.

Prot.

Agency

(Sept.

2021),

https://go.usa.gov/xur6H. Permafrost may also allow

the agencies to reach beyond arctic tundra and into

forests and up hillsides. The Corps, for example, has

identified patches of permafrost on north-facing slopes

as wetlands candidates. See Regional Supplement 6.

Changing temperatures will make the jurisdictional

landscape all the more uncertain, with thawing permafrost making some locations display more wetlandlike characteristics and others display less. See id. at

23–24; Lindsey Flagstad et al., Univ. of Alaska Anchorage, Wetlands Across Alaska: Statewide Wetland

Map and Assessment of Rare Wetland Ecosystems 9

(2018). Permafrost can make for unstable ground, but

it should not do the same for federal jurisdiction.

Alaska is also home to wetland mosaics, areas

described by the Corps as landscapes “where wetland

and non-wetland components are too closely associated to be easily delineated or mapped separately.” Regional Supplement 97. That is because mosaics do not

exist as discernable bodies of water, but as land with

“complex microtopography”—like one-foot gaps between tussocks or ten-foot dips between hummocks.

Ibid. The Corps has noted examples of mosaics in myriad settings, including in north-facing slopes or in areas where wildfires have damaged permafrost. Ibid.

Including mosaics as complexes of “similarly situated”

wetlands under the significant nexus test significantly

overrepresents the extent of jurisdictional wetlands in

Alaska. See Pet. App. A-35 n.14 (noting historical evidence of “a single wetland complex”); Flagstad 25 (explaining that excluding mosaics and lands that could

be classified as either wetland or upland reduces the

estimate of wetlands in Alaska from 43 percent of the

landmass to 22 percent).

Alaska also has unique forested wetlands. In regions like coastal southeast Alaska, 70-inch annual

rainfall leads to hydrophytic vegetation and pockets of

hydric soils on hillsides and slopes. These can have no

connection to a navigable waterbody other than

groundwater flow. But with subsurface connections as

an allowable criterion under the significant nexus

test, these forests too can be deemed jurisdictional.

See Pet. App. at A-35 n.14; U.S. Senate Comm. on

Env’t and Pub. Works, From Preventing Pollution of

Navigable and Interstate Waters to Regulating Farm

Fields, Puddles and Dry Land: A Senate Report on the

Expansion of Jurisdiction Claimed by the Army Corps

of Engineers and the U.S. Environmental Protection

Agency under the Clean Water Act 7 (2016) (“[T]he

Corps has already begun to claim that movement of

water through a groundwater aquifer is a hydrologic

connection that expands the Corps’ jurisdiction.”).

B. Unchecked agency overreach under the significant nexus test impedes Alaska’s ability to meet its

social and economic needs. As Justice Alito has observed, “[a]ny piece of land that is wet at least part of

the year is in danger of being classified by EPA employees as wetlands covered by the Act.” Sackett v. Envtl. Prot. Agency, 566 U.S. 120, 132 (2012) (Alito, J.,

concurring). In Alaska, this has real impacts on the

ability to develop critical infrastructure and access resources.

Take for example the State’s work assisting

with the design of basic sanitation infrastructure in

Chefornak, a western Alaska village that, like many

others, has no community-wide wastewater facility.

There, a majority of homes lack flush toilets and collect waste in “honey buckets” that are dumped in a

pond. Over 3,300 homes throughout Alaska are in this

situation, with resulting rates of invasive pneumococcal disease that are “among the highest in the world.”

Alaska Water and Sewer Challenge, Alaska Dep’t of

Envtl. Conservation, https://dec.alaska.gov/water/water-sewer-challenge/ (last visited Apr. 13, 2022). The

State has been working with the community to find an

economical solution—one that will meet basic sanitation needs at a cost that can be sustained. Alaska’s efforts, however, have been stymied by expansive interpretations of the Act’s reach.

As is common in Alaska, Chefornak is near water, with a river, lakes, and wetlands at hand. A boardwalk traverses the village. The only feasible area for a

wastewater lagoon is surrounded by wetlands that the

Corps has classified as “waters of the United States.”

As a result, wastewater needs to be fully compliant

with water quality standards before discharge. This

makes the only legal option a full-fledged, lined, twocell wastewater treatment plant. That would cost, at a

minimum, $8 million to build (an average of $20,259

per resident) plus operating expenses that would add

$115 per month to utility bills. In rural Alaska those

costs are simply prohibitive. As a result, the project

has been suspended.

An expansive interpretation of the Act forecloses creative solutions in communities like this.

Were “waters of the United States” read more narrowly, the State could work with the community to

build an economical, partially lined lagoon designed to

use the surrounding wetlands’ natural filtration functions. This could be made to satisfy water quality

standards before water reaches the nearest traditionally navigable waterbody—meeting the community’s

basic needs while ensuring that navigable waters are

protected. As it stands now, that is not an option and

the status quo continues—with consequences for the

environment and human health alike.

Or take the construction of an airport in Angoon, a coastal southeast community accessible only

by boat or seaplane. A land-based airport will help Angoon connect to essential services, including emergency medical transport. Much of the area is surrounded by temperate rainforest. The Corps concluded

the project area included nearly 300 acres of jurisdictional wetlands. The bulk of these were “bog forests”—

areas that can be populated by tall conifers and dense

undergrowth and that under any common understanding of the phrase, would not be considered “waters.” The Corps issued a permit under the Act, but it

came at no small cost: the Corps required the State to

pay $3.6 million for wetlands mitigation credits and

$60,000 toward removing abandoned boats in a nearby

bay. Of course, the airport construction itself was designed to protect the aquatic environment, with

stream diversions protecting fish passage and minimizing impact on surrounding habitat. The State

should be able to build critical infrastructure in an environmentally sound manner without the Corps compelling it to funnel public funds to mitigation banks.

Alaska also bears the cost of the agencies’ fluctuating interpretations of “waters of the United

States.” The regulatory climate is unpredictable, with

an agency determining one year that a project is in a

jurisdictional wetland and then, after a change of administration, that it is not. This is precisely what happened at three commercial facilities near the City of

North Pole. First, the Corps applied its 2015 definition

to determine that the facilities could be regulated. The

facilities applied for the necessary permits and adjusted their operations. Then years later, the Corps

shifted its definition of “waters of the United States”

and determined the facilities were not covered. The determination might flip again. Indeed, the agencies’

most recent proposed rulemaking would adopt a version of the “significant nexus” test that largely eliminates any discernable boundaries. See 86 Fed. Reg.

69,372, 69,430 (Dec. 7, 2021) (defining “significant” as

“more than speculative or insubstantial effects”). With

no certainty, the public is left making decisions in the

dark—and subject to criminal and civil liability for

guessing wrong.

Jurisdictional uncertainty makes critical infrastructure development all the more difficult in

Alaska’s already challenging environment. And the

federal permitting process itself leads to delays and

increased costs. Much of Alaska has an extremely

short summer construction season. But a standard

dredge-and-fill permit takes the Corps about half a

year (the Angoon airport permit took seven months),

and permits for large projects can take several years.

Development opportunities are missed season after

season. See Impacts of the Proposed Waters of the

United States Rule on State and Local Government

and Stakeholders: Hearing before the Subcomm. on

Fisheries, Water, & Wildlife, Comm. on Env’t & Pub.

Works, 114th Cong. 3 (2015) (statement of Michelle

Hale, Dir., Div. of Water, Alaska Dep’t of Envtl. Conservation).

C. Alaska’s government also experiences substantial costs from broad, shifting interpretations of

the federal agencies’ jurisdiction. As the Act’s reach

expands, Alaska’s Department of Environmental Conservation must do more mandatory inspections and reporting under its delegated Clean Water Act section

402 program and more section 401 certification analyses. It faces more litigation as parties challenge its

work implementing the Act. The department is actively redesigning its permitting system to increase

predictability, but keeping pace with changing definitions squanders state resources.

The State also shoulders the costs of complying

with the Act as a developer and landowner. Alaska’s

Department of Transportation and Public Facilities,

which secures the largest number of section 404 permits in Alaska, faces more analyses under the National Environmental Policy Act and more expensive

compensatory mitigation. With little degraded wetlands needing improvement and the limited availability of private land (only 12 percent of the State), compensatory mitigation in Alaska is particularly difficult. The Corps has rejected proposals to create a

state-managed in-lieu-fee program that could provide

alternatives to project-specific mitigation or expensive

mitigation credits. And the Corps often directs the use

of project lands for mitigation avoidance or imposes

costly project modifications. This restricts Alaska’s

ability to use its own lands. Alaska’s Department of

Natural Resources, the State’s landholding agency,

has more difficulty developing resources on state

lands that could secure rental, royalty, and tax revenues.

In short, the federal agencies and lower courts’

broad interpretation of the Act’s jurisdictional reach

has burdened Alaska’s governments, industries, and

communities.

II.

The Court should provide jurisdictional

certainty by reading the Act in line with

text, precedent, and respect for state authority over local matters.

Adopting a limited, textual reading of the Act

will clear the cloud of jurisdictional uncertainty that

hampers necessary projects in States like Alaska. Jurisdictional waters should be relatively permanent,

geographic waterbodies aligned with the ordinary understanding of the key phrases “the waters of the

United States” and “navigable waters.” The Court

should read the Act to confer federal authority over intrastate wetlands only when they are indistinguishable from and comprise the borders of waters that are

themselves jurisdictional. In line with principles of

federalism that lie at the core of the Act and the Constitution, States should have authority to independently manage and protect what is clearly local

land and water.

A. The Court should read the Act in a way that

is true to its text. In defining “navigable waters,” Congress chose not to refer to water in general, but to “the

waters of the United States.” 33 U.S.C. § 1362(7). This

distinction carries meaning. See Rapanos, 547 U.S. at

732 (plurality opinion). As the Rapanos plurality explained, “the waters” means water “ ‘[a]s found in

steams and bodies forming geographical features such

as oceans, rivers, [and] lakes,’ or ‘the flowing or moving masses, as of waves or floods, making up such

streams or bodies.’ ” Ibid. (alterations in original)

(quoting Webster’s New International Dictionary 2882

(2d ed. 1954)). The ordinary meaning of the term does

not independently capture wetlands—be they the

Sacketts’ soggy parcel or damp tundra overlaying permafrost. Instead, it captures “relatively permanent,

standing or flowing bodies of water.” Ibid.

Reading “waters” as relatively permanent bodies of water is bolstered by the Act’s prohibition of discharges into “navigable waters.” 33 U.S.C. §§ 1311(a),

1344(a), 1362(12). Though the Court described the

phrase “navigable waters” as having “limited import”

because the Act employs it as a defined term, Riverside

Bayview, 474 U.S. at 133, the Court should not disregard its ordinary and traditional meaning. “In settling

on a fair reading of a statute, it is not unusual to consider the ordinary meaning of a defined term, particularly where there is dissonance between the ordinary

meaning and the reach of the definition.” Bond v.

United States, 572 U.S. 844, 861–62 (2014) (refusing

to “brush aside the ordinary meaning” of the term

“chemical weapon” despite a far-reaching statutory

definition).

The Act should not be read to confer jurisdiction

over features that “no one would ordinarily describe”

as navigable waters. Id. at 862. Traditionally, “navigable waters” had to be discrete bodies of water that

were “ ‘navigable in fact’ or readily susceptible of being

rendered so.” Rapanos, 547 U.S. at 723 (plurality opinion) (citing The Daniel Ball, 10 Wall. 557, 563 (1871);

United States v. Appalachian Elec. Power Co., 311

U.S. 377, 406 (1940)). No ordinary meaning of “navigable waters” would allow for the agencies’ assertion

of jurisdiction over complexes of wetlands, expanses of

tundra, or temperate rainforests physically separated

from or tenuously linked to traditionally navigable

waterways.

Moreover, reading text in line with its ordinary

meaning does not do away with all federal authority

over wetlands. Instead, wetlands can be included as

part of “navigable waters” where they share a physical

surface connection to those waters that makes them

“as a practical matter indistinguishable.” Id. at 755

(emphasis in original). Jurisdictional wetlands would

thus be identified where there is “boundary-drawing

ambiguity” on the banks of a navigable water. Id. at

748–49. This conforms to the Court’s affirmance of jurisdiction over “a wetland that actually abuts on a

navigable waterway” in Riverside Bayview, 474 U.S.

at 135. And it is true to the Act’s use of the word “wetlands” in its reservation of federal dredge-and-fill authority over “those waters which are presently used,

or are susceptible to use . . . as a means to transport

interstate or foreign commerce shoreward . . . including wetlands adjacent thereto.” 33 U.S.C. § 1344(g)(1).

Any other application of the Act to wetlands—

such as one tied to water’s inherent interconnectivity

across ecosystems—substitutes a feature that may affect navigable waters for navigable waters themselves.

See Rapanos, 547 U.S. at 755 (plurality opinion). Language intended to set jurisdictional boundaries then

becomes boundless.

That is what has happened under the lower

courts’ application of Justice Kennedy’s “significant

nexus” test. Indecipherable jurisdictional borders continue “to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., 578

U.S. 590, 603 (2016) (Kennedy, J., concurring). This

results from wedding jurisdictional boundaries to the

chemical, physical, and biological interplay between

wetlands and downgradient waters. See Rapanos, 547

U.S. at 780 (Kennedy, J., concurring in the judgment).

But ecological connections are ill-suited for boundary

drawing; after all, in ecology, “[w]hen we try to pick

out anything by itself, we find it hitched to everything

else in the universe.” John Muir, My First Summer in

the Sierra 211 (Houghton Mifflin ed., 1911). Congress’s invocation of “navigable waters” and “waters of

the United States” as jurisdictional markers could not

have been intended to capture such breadth. As the

Rapanos plurality explained, “exclusive focus on ecological factors,” paired with “total deference to the

Corps’ ecological judgments, would permit the Corps

to regulate the entire country as ‘waters of the United

States.’ ” 547 U.S. at 749.

“Predictability, or . . . ‘reckonability,’ is a needful characteristic of any law worthy of the name.” Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.

Chi. L. Rev. 1175, 1179 (1989) (quoting Karl N. Llewellyn, The Common Law Tradition 17 (Little, Brown

ed., 1960)). A textual reading of “the waters of the

United States” would give States like Alaska just that.

Rather than a roving search for jurisdiction in the water-logged gaps between grassy tussocks, among the

trees of a mist-soaked hillside, or in the permafrost lying under millions of acres of tundra, the agencies’ jurisdiction would be distinctly bounded at the banks of

Alaska’s navigable streams and waterbodies.

B. A limited, textual reading is also supported

by the Court’s precedent. In first upholding the application of the Act to a wetland in Riverside Bayview,

the Court emphasized the boundary-drawing context

in which the question arose. 474 U.S. at 132. The reality is that “the transition from water to solid ground

is not necessarily or even typically an abrupt one,” yet

as the Court explained, the Corps was still tasked with

finding “some point at which water ends and land begins.” Ibid. Recognizing that “problem of defining the

bounds of its regulatory authority,” the Court condoned the agency’s reliance on the Act’s “concern for

protection of water quality and aquatic ecosystems” to

determine that it may “encompass wetlands adjacent

to waters as more conventionally defined.” Id. at 132–

33. The Court thus upheld the application of the Act

to “a wetland that actually abuts on a navigable waterway.” Id. at 135.

After Riverside Bayview, the federal agencies

pushed their jurisdictional claim further, but were rebuffed. In SWANCC, the Court rejected the agencies’

habitat-based assertion of jurisdiction over an abandoned sand and gravel pit. 531 U.S. at 167. The Court

was clear that the Act’s jurisdictional phrase “navigable waters” still had meaning—it showed Congress

rested its enacting authority on “traditional jurisdiction over waters that were or had been navigable in

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

The Court emphasized the import of the wetland’s adjacency—noting that “was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview

Homes.” Id. at 167. The Act extended no jurisdiction,

the Court held, over “ponds that are not adjacent to

open water.” Id. at 168 (emphasis in original).

In Rapanos, the Court considered whether a

wetland that was also “not adjacent to navigable-infact waters” could be “waters of the United States.”

See Sackett, 566 U.S. at 124 (describing Rapanos). The

Court answered “no.” Ibid. Under either the plurality

decision or Justice Kennedy’s concurrence, the Court’s

precedent would not allow the agencies to claim jurisdiction over wetlands linked to distant navigable waters through remote or insubstantial connections. See

Raponos, 547 U.S. 735 (plurality opinion) (explaining

that in Riverside Bayview “nowhere did [the Court]

suggest that the ‘waters of the United States’ should

be expanded to include, in their own right, entities

other than hydrographic features more conventionally

identifiable as ‘waters ’ ” (internal quotation marks

omitted) (quoting Riverside Bayview, 474 U.S. at

131)); id. at 780 (Kennedy, J., concurring in the judgment) (“The Corps’ theory of jurisdiction in these consolidated cases—adjacency to tributaries, however remote and insubstantial—raises concerns that go beyond the holding of Riverside Bayview; and so the

Corps’ assertion of jurisdiction cannot rest on that

case.”).

The Court’s precedent does not support the

agencies and lower courts’ sweeping interpretation of

“navigable waters” to include wetlands lacking discernable surface connections to bodies of water. Moreover, by simply defining wetlands as “navigable waters,” the agencies can duck the Act’s limited authority

over point-source discharges to groundwater. See Cty.

of Maui v. Haw. Wildlife Fund, __ U.S. __, 140 S.Ct.

1462, 1476 (2020); see also id. at 1478 (Kavanaugh, J.,

concurring) (noting the holding “adheres to Justice

Scalia’s analysis in Rapanos”). Rather than determine

if a discharge to a wetland reaches a navigable water

in a manner similar to a direct discharge, id. at 1476,

the agencies may simply deem the wetland itself a

“navigable water” and regulate the discharge out of

the gate.

C. A limited, textual reading is further supported by the Act’s and the Constitution’s respect for

state authority over local matters. “Regulation of land

use, as through the issuance of the development permits”—at issue both in Rapanos and here—“is a quintessential state and local power.” Rapanos, 547 U.S. at

738 (plurality opinion). The Act should be read in a

manner that allows States to wield that authority.

A “strong current of federalism” runs through

the Act. Dist. of Columbia v. Schramm, 631 F.2d 854,

863 (D.C. Cir. 1980). Congress elected to “recognize,

preserve, and protect the primary responsibilities and

rights of the States to prevent, reduce, and eliminate

pollution, [and] to plan the development and use (including restoration, preservation, and enhancement)

of land and water resources.” 33 U.S.C. § 1251(b). The

Court has highlighted this time and again. SWANCC,

531 U.S. at 174; Rapanos, 547 U.S. at 737 (plurality

opinion); see also Cty. of Maui, 140 S.Ct. at 1471, 1476.

The Act does not intend for the Corps and the EPA to

oversee ordinary homebuilding, local wastewater facility design, or rural airport construction where none

of it occurs in a navigable waterbody.

Recognition of States’ authority over local matters goes beyond the Act, too; it is central to our constitutional framework. “In our federal system, the National Government possesses only limited powers; the

States and the people retain the remainder.” Bond,

572 U.S. at 854. Differences in federal and state authority exist for a reason: within “the tension between

federal and state power lies the promise of liberty.”

Gregory v. Ashcroft, 501 U.S. 452, 459 (1991). Legislating “in areas traditionally regulated by States,”

therefore, is “an extraordinary power in a federalist

system” and one that the Court “must assume Congress does not exercise lightly.” Id. at 460.

The Court should read the Act’s jurisdictional

phrases to limit, not expand, the federal agencies’

reach into traditional state territory. It is a “well-established principle that ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ the ‘usual constitutional balance of federal and state powers.’ ” Bond, 572

U.S. at 858 (cleaned up) (quoting Gregory, 501 U.S. at

460); see also U.S. Forest Serv. v. Cowpasture River

Preservation Ass’n, __ U.S. __, 140 S.Ct. 1837, 1849–

50 (2020). That intent must be shown in the statute’s

text: “if the Federal Government would ‘radically readjust the balance of state and national authority,

those charged with the duty of legislating must be reasonably explicit’ about it.” Bond, 572 U.S. at 858

(cleaned up) (quoting BFP v. Resolution Trust Corp.,

511 U.S. 531, 544 (1994)); see also ibid. (citing

SWANCC, 531 U.S. at 174). This is particularly important where a law, like the Act, may control intrastate crimes. See id. at 859–60. Here there is no indication that the Act intended to usurp state authority.

To the contrary, it “explicitly calls for” “state and local

conservation efforts.” Rapanos, 547 U.S. at 745 (plurality opinion).

Moreover, the Act should be read to prevent the

agencies and lower courts from continuing to “stretch[]

the outer limits of Congress’s commerce power.” Rapanos, 547 U.S. at 738 (citing SWANCC, 531 U.S. at

173). Congress’s Commerce Clause authority is broad,

but “not unlimited.” SWANCC, 531 U.S. at 173.

Sweeping assertions of jurisdiction over local water

and land “raise significant constitutional questions.”

See ibid. An activity impacting the natural environment may always have downstream effects, however

imperceptible, just like any local commercial activity

might, in theory, have some impact on interstate commerce. “Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at

the center.” A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495, 554 (1935) (Cardozo, J., concurring). But that does not make it constitutionally permissible to regulate without limit.

Applying the Act to wetlands that are remote

from traditionally navigable waters and connected

only through a chain of ecological relationships “would

obliterate the distinction between what is national

and what is local.” Ibid. Congress provided no clear

statement that it intended to so push its Commerce

Clause authority. To the contrary, by tying jurisdiction to “navigable waters” it invoked its “traditional

jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.”

SWANCC, 531 U.S. at 172.

Resting the interpretation of the Act “plainly

and simply, upon the limited meaning that can be

borne by the phrase ‘waters of the United States’ ” preserves the Act’s respect for State’s powers and avoids

straying to the edges of the Commerce Clause. Rapanos, 547 U.S. at 753 (plurality opinion). And although it may ultimately be the Court’s “job . . . to follow the text even if doing so will supposedly undercut

a basic objective of the statute,” Baker Botts L.L.P. v.

ASARCO LLC, 576 U.S. 121, 135 (2015) (internal quotation marks omitted), here the Court can follow the

text and further the Act’s objectives. As Congress contemplated, the States can continue to exercise their

authority to protect local water quality.

III.

States like Alaska responsibly manage

their waters and will continue to do so.

Water that is not a “water of the United States”

is not, for that reason, unprotected. Instead, it is protected by state rather than federal law. Greater state

authority over waters would not undermine the Act’s

objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,”

33 U.S.C. § 1251(a)—it would simply leave space for a

different governmental body to further this objective.

States have the prerogative and incentive to fill this

space and to balance their power with facilitating local

needs. Alaska, for its part, is well-poised to maintain

the chemical, physical, and biological integrity of its

waters.

A. Enshrined in Alaska’s constitution is a directive to manage replenishable natural resources—

everything from fish to forests—under a “sustained

yield principle.” Alaska Const., art. VIII, § 4. This balances “maximum use of natural resources with their

continued availability to future generations.” West v.

State, Bd. of Game, 248 P.3d 689, 696 (Alaska 2010)

(quoting The Alaska Constitutional Convention, Proposed Constitution for the State of Alaska: A Report to

the People of Alaska (1956)). Embedded in this directive is a promise to protect Alaska’s waters.

Alaska law broadly prohibits “pollution of the

air, land, subsurface land, or water of the state.”

Alaska Stat. § 46.03.710. It defines “pollution” to include “the contamination or altering of water, land, or

subsurface land,” in ways that create nuisances or

make them “unclean, or noxious, or impure, or unfit.”

Id. § 46.03.900(20). And it empowers the State to prevent, control, and abate this pollution. Id. § 46.03.020.

The State exercises its power responsibly. Following the Exxon Valdez oil spill, for example, Alaska

amended its environmental laws to make them more

protective, created an oil spill contingency plan requirement to prevent similar spills, and annually revisits the standards. The State has adopted an antidegradation policy which requires all state waters to

meet federal water quality standards. Alaska Admin.

Code tit. 18, § 70.015. And it has adopted state-level

water quality protections that are more stringent than

federal standards—including quantitative groundwater and surface water cleanup standards for oil and

hazardous substances. See, e.g., id. § 75.345.

Alaska’s regulatory programs are comprehensive in scope. Alaska regulates discharges to waters

and wetlands, manages wastewater treatment and

disposal, provides financial assistance for water and

wastewater facilities, supports waterbody assessment

and remediation, and monitors and reports on water

quality. See id. chs. 70, 72, 83. It oversees several water quality programs, covering everything from pointsource discharges to stormwater runoff, nonpointsource pollution, and even cruise ship releases. See

Alaska Stat. § 46.03.100; Alaska Admin Code tit. 18,

ch. 69; id. §§ 83.310, 83.610. The State meticulously

tracks metrics affecting its water quality—collecting

information like temperature, turbidity, and pH, as

well as biological, habitat, soil, and sediment data.

The scope of monitoring extends beyond specific projects, to include streams, beaches, impaired waters,

and priority areas.

All of these programs are rigorous. And they apply equally to surface water, wetlands, and groundwater, regardless of whether they are deemed “waters of

the United States.”

B. State-level programs can be nimbler and

more tailored. Alaska, for example, has developed a

general permitting system for stormwater runoff (a

common source of harmful pollution) that covers construction activities affecting at least one acre. This

system regulates both stormwater and non-stormwater pollution. Storm Water Program, Alaska Dep’t

of Envtl. Conservation, https://go.usa.gov/xuYq5 (last

visited Apr. 13, 2022). Housing disparate activities in

a single authorization reduces costs for the regulators

and regulated alike. And efficiency does not compromise effectiveness: stormwater runoff is still cleaned

up to water quality standards.

State-level programs also allow States to manage their public resources in ways that meet local

needs. In Alaska, the State holds and manages approximately 60 million acres of tidelands, shorelands,

and submerged lands, as well as all water in the State.

Alaska requires that any “use of water” be in the public interest and considers impacts “on water quality,

navigation, and fish and wildlife.” Alaska Stat. §§

46.15.010–.270; Tulkisarmute Native Cmty. Council v.

Heinze, 898 P.2d 935, 950 (Alaska 1995). Alaska also

enforces specific water protections for its unique public areas. For example, users of forest land must monitor and report likely impacts on water quality. Alaska

Admin. Code tit. 11, § 95.825. Water-related activities

are restricted in a state preserve to protect nesting

bald eagles. See, e.g., id. §§ 21.010, .120. And streams

bearing Alaska’s abundant anadromous fish (like

salmon) are protected, with developers needing approval from the State’s habitat biologists for any activ-

ity that may pollute specified anadromous waterbodies, or else face penalties or a misdemeanor prosecution. Alaska Stat. §§ 16.05.871, .881, .896, .901.

Alaska’s habitat biologists are a microcosm of the

wealth of expertise that Alaska has protecting its waters. Habitat biologists alone scrutinize over 1,500

permit applications each year and monitor permitted

projects to ensure they will not harm fish habitat. For

special areas, habitat biologists develop comprehensive management plans to protect fish, wildlife, and

their water and wetland habitats. E.g., Alaska Admin.

Code tit. 5, § 95.520. Like many of Alaska’s agency experts, habitat biologists are essential for ensuring that

the State’s replenishable natural resources are available for future generations.

State-level efforts, like Alaska’s, are tailored to

local conditions and leverage local insight. And they

reflect States’ prerogatives to balance their local ecological and economic needs. Burdensome federal encroachment on States’ powers over local lands and waters hinders States’ abilities to meet their unique

needs and, ultimately, is unnecessary to maintain the

chemical, physical, and biological integrity of local water.

***

Alaska urges the Court to consider the disproportionate burden that States like Alaska bear from

unnecessary, overbroad interpretations of the Clean

Water Act. Alaska respectfully supports a narrow, textual understanding of the Act’s key jurisdictional

phrases. By reading the Act to confer federal jurisdiction over only waterbodies in the traditional sense and

wetlands that are indistinguishable from and comprise the borders of those waterbodies, the Court can

align its interpretation with the Act’s text and its respect for state authority over state water. The Clean

Water Act allows for nothing more.

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted.