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,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
BRIEF OF SEN. SHELLEY MOORE CAPITO,
REP. SAM GRAVES,
AND A COALITION OF 199
MEMBERS OF CONGRESS
AS AMICI CURIAE SUPPORTING
PETITIONERS
Thomas M. Johnson, Jr.
Counsel of Record
William K. Lane III
William Turner
WILEY REIN LLP
2050 M Street N.W.
Washington, D.C. 20036
(202) 719-7000
tmjohnson@wiley.law
Counsel for Amici Curiae
i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................ 1
SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 6
I.
II.
CONGRESS INTENDED TO ADOPT A
COOPERATIVE APPROACH WITH STATES
UNDER THE CLEAN WATER ACT THAT
WOULD LIMIT FEDERAL CONTROL. ......... 6
A.
The Statutory Terms “Navigable
Waters” and “Waters of the United
States” Have A Limited Meaning
That Protects The Prerogatives of
the States Over Water and Land
Management. ......................................... 6
B.
The
CWA’s
Purposes
and
Structure, Supported by the
Federalism
Canon,
Reinforce
Congress’s
Commitment
To
Partner with the States. ..................... 12
C.
The CWA’s Legislative History,
and Subsequent Congressional
Actions,
Confirm
Congress’s
Intent To Limit Its Jurisdiction To
Traditional Navigable Waters. ........... 16
THIS COURT SHOULD ADOPT JUSTICE
SCALIA’S TEST TO REIN IN AGENCY
OVERREACH THAT DEFIES CONGRESS’S
INTENT AND CAUSES SUBSTANTIAL
ECONOMIC HARM. ...................................... 26
ii
CONCLUSION ......................................................... 30
APPENDIX A – List of Amici Curiae....................... 1a
iii
TABLE OF AUTHORITIES
Page(s)
Cases
BFP v. Resol. Tr. Corp.,
511 U.S. 531 (1994) ........................................... 15
Bragdon v. Abbott,
524 U.S. 624 (1998) ........................................... 10
Brown v. Gardner,
513 U.S. 115 (1994) ........................................... 17
City of Milwaukee v. Illinois and Michigan,
451 U.S. 304 (1981) ..................................... 20, 21
Conroy v. Aniskoff,
507 U.S. 511 (1993) ........................................... 23
The Daniel Ball,
77 U.S. 557 (1870) .......................... 8-9, 11, 18-19
Davis v. Michigan Dep’t of Treasury,
489 U.S. 803 (1989) ........................................... 11
Economy Light & Power Co. v. United
States,
256 U.S. 113 (1921) ............................................. 9
English v. General Elec. Co.,
496 U.S. 72 (1990) ............................................. 15
iv
FERC v. Mississippi,
456 U.S. 742 (1982) ........................................... 16
Food & Drug Admin. v. Brown &
Williamson Tobacco Corp.,
529 U.S. 120 (2000) ........................................... 29
Gibbons v. Ogden,
22 U.S. 1 (1824) ................................................... 7
Lamar, Archer & Cofrin, LLP v. Appling,
138 S. Ct. 1752 (2018) ....................................... 10
Natural Resources Def. Council v. Callaway,
392 F. Supp. 685 (D.D.C. 1975) ........................ 22
New Prime Inc. v. Oliveira,
139 S. Ct. 532 (2019) ......................................... 23
PUD No. 1 of Jefferson Cnty. v. Washington
Dep’t of Ecology,
511 U.S. 700 (1994) ..................................... 12, 13
Rapanos v. United States,
547 U.S. 715 (2006) .................. 1, 4-5, 7-8, 10-12,
14-18, 21, 23-28
Rodriguez v. United States,
480 U.S. 522 (1987) ........................................... 14
Sackett v. EPA,
8 F.4th 1075 (9th Cir. 2021) .............................. 12
v
Solid Waste Agency of N. Cook Cnty. v. U.S.
Army Corps of Eng’rs,
531 U.S. 159 (2001) .................... 10, 16-17, 22, 27
United States v. Appalachian Elec. Power
Co.,
311 U.S. 377 (1940) .............................. 7-9, 11, 19
United States v. Johnson,
467 F.3d 56 (1st Cir. 2006) ................................ 28
United States v. The Montello,
78 U.S. 411 (1870) ............................................... 8
United States v. Rio Grande Dam &
Irrigation Co.,
174 U.S. 690 (1899) ............................................. 7
United States v. Riverside Bayview Homes,
Inc.,
474 U.S. 121 (1985) ........................................... 11
United States Forest Serv. v. Cowpasture
River Preservation Ass’n,
140 S. Ct. 1837 (2020) ....................................... 15
Utility Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) ........................................... 29
vi
U.S. Constitution
U.S. Const. art. I, sec. 8, cl. 3 ................................... 7
Senate Resolution
S.J. Res. 22, 114th Cong. (2016)............................. 24
Statutes
5 Stat. 304 (1838) ...................................................... 8
33 U.S.C. § 1251(a) ................................................. 12
33 U.S.C. § 1251(b) ............................................. 4, 12
33 U.S.C. § 1311(a) ................................................... 9
33 U.S.C. § 1311(b)(1)(C) ........................................ 13
33 U.S.C. § 1313...................................................... 13
33 U.S.C. § 1315(b) ............................................. 4, 13
33 U.S.C. § 1319(a) ............................................. 4, 13
33 U.S.C. § 1341(a) ................................................. 13
33 U.S.C. § 1342(a) ................................................... 4
33 U.S.C. § 1342(b) ............................................. 4, 13
33 U.S.C. § 1344(a) ................................................... 9
33 U.S.C. § 1344(d) ................................................... 9
vii
33 U.S.C. § 1344(f)(1) .............................................. 14
33 U.S.C. § 1362(7) ................................................... 9
33 U.S.C. § 1362(12) ................................................. 9
33 U.S.C. § 1362(12)(A) .......................................... 14
33 U.S.C. § 1362(14) ............................................... 14
Federal Water Power Act of 1920,
41 Stat. 1063 (1920) ........................................ 8, 9
Rivers and Harbors Act of 1899,
30 Stat. 1121 (1899) ............................................ 8
Other Authorities
33 C.F.R. § 209.120(d)(1) (1974) ............................. 22
33 C.F.R. § 328.3(a)(3) ............................................ 27
33 C.F.R. § 328.3(b)(4)(vii) (2015) .......................... 28
Comm. on Pub. Works. Legislative History
of the Water Pollution Control Act
Amendments of 1972 ................................ 3, 18-21
167 Cong. Rec. S453 (2021) .................................... 25
S. Amdt. 655 to S. Con. Res. 5, 117th Cong.
(2021) ................................................................. 25
S. Conf. Rep. No. 92-1236 (1972)............................ 17
viii
S. Rep. No. 95-370 (1977) ....................................... 24
Webster’s New International Dictionary
2882 (2d ed. 1954).............................................. 11
1
INTEREST OF AMICI CURIAE1
Amici are members of the United States Congress,
some of whom sit on committees with jurisdiction over
the Clean Water Act (“CWA”). Amici have an interest
in maintaining Congressional authority to define,
within constitutional limits, the boundaries of federal
jurisdiction. To that end, amici desire to present this
Court with its views on how the text, purposes,
structure, and history of the CWA support a more
limited scope of federal control over “navigable waters”
that is embodied in Justice Scalia’s opinion in Rapanos
v. United States, 547 U.S. 715, 722 (2006) (plurality
op.).
Like the members of Congress that enacted the
CWA, amici support policies that protect the
environment while also ensuring that States retain
their traditional role as the primary regulators of land
and
water
resources,
and
that
farmers,
manufacturers, small business owners, and property
owners like the Petitioners in this case can develop
and use their land free of over-burdensome, job-killing
federal regulations. These entities need certainty
about the scope of “waters of the United States” under
the Clean Water Act, and the Court’s endorsement of
1 No party’s counsel authored this brief in whole or in part,
and no person or entity, other than amici or their counsel, made
a monetary contribution to fund the brief’s preparation or
submission. All parties in this case have consented to amici’s
filing of this brief.
2
the Scalia test would provide that long-needed
certainty.
Senator Shelley Moore Capito is a United States
Senator for West Virginia and Ranking Member of the
U.S. Senate Committee on Environment and Public
Works. Representative Sam Graves is the United
States
Representative
for
Missouri’s
Sixth
Congressional District and Ranking Member of the
U.S. House Committee on Transportation and
Infrastructure. A complete list of amici is provided in
the Appendix to this brief.
3
SUMMARY OF ARGUMENT
Since the earliest days of the Republic, Congress
has exercised its power to regulate the channels of
interstate commerce to adopt regulations governing
the navigable waters of the United States. Starting in
the late nineteenth century and culminating in the
adoption of the Clean Water Act of 1972, Congress
used this authority to keep our Nation’s waters free of
pollution harmful to the environment. The means
Congress has consistently selected to accomplish that
goal is cooperative federalism—“a partnership
approach in environmental legislation”—whereby
neither the Federal Government nor the States tackle
environmental challenges alone. Comm. on Pub.
Works. Legislative History of the Water Pollution
Control Act Amendments of 1972 (“CWA 1972
History”) at 1271 (statement of Sen. Randolph).
Consistent with our constitutional structure,
Congress intended that the Federal Government
would play a limited part in regulating waterways,
while States would retain their historic role as the
principal stewards of lands and waters within their
jurisdiction. This approach reflected a recognition
that the “Federal Government by itself cannot achieve
the kind of environment [Congress] want[s].” Id.
The text, purposes, structure, and legislative
history of the CWA reinforce Congress’s commitment
to cooperative federalism.
Congress limited its
jurisdiction in the statute to “navigable waters,”
defined as “waters of the United States,” whose plain
4
meaning, developed over a century of prior enactments
and judicial decisions, extended only to “relatively
permanent, standing or continuously flowing bodies of
water.” Rapanos, 547 U.S. at 739 (plurality op.).
Confirming this limited understanding, Congress
expressly provided in the text of the CWA that it was
the policy of the United States “to recognize, preserve,
and protect the primary responsibilities and rights of
States . . . to plan the development and use . . . of land
and water resources,” 33 U.S.C. § 1251(b), and
empowered States to protect the quality of waters
within their jurisdiction, see, e.g., id. §§ 1315(b),
1319(a), 1342(a), (b).
Due to uncertainty created by more recent judicial
decisions regarding the scope of “waters of the United
States,” however, the Environmental Protection
Agency (EPA) and the U.S. Army Corps of Engineers
(Corps) have been emboldened over time to infringe on
the role of the States, extending the Federal
Government’s jurisdiction into everything from
mudflats to ponds to prairie potholes.
These
“increasingly broad interpretations” of what
constitutes “waters of the United States” have resulted
in an “immense expansion of federal regulation of land
. . . without any change in the governing statute.”
Rapanos, 547 U.S. at 722, 725 (plurality op.).
In Rapanos, this Court confronted the question of
whether the CWA extended to non-navigable, isolated
wetlands. No opinion of this Court garnered a
majority. As a result, the EPA and the Corps have
5
added further confusion by applying a constantly
changing back and forth set of guidance and rules
starting with the 2008 guidance, followed by a much
broader and overreaching 2015 Clean Water Rule, that
was itself followed by the reasonable and more easily
administrable 2020 Navigable Waters Protection Rule
(“NWPR”), supported by several amici, that adhered to
Justice Scalia’s test. Unfortunately, in 2021, the EPA
and the Corps revoked the 2020 rule and are now
considering an expansion of federal jurisdiction akin to
the 2015 rule.
Justice Scalia’s plurality opinion in Rapanos
recognized that the term “navigable waters” imposed
more meaningful constraints on federal bureaucratic
overreach, consistent with its textual and historical
limitation to “relatively permanent, standing or
continuously flowing bodies of water,” Rapanos, 547
U.S. at 739—constraints to which the agencies have
failed to adhere consistently. Under Justice Scalia’s
test, wetlands could only qualify if they have a
“continuous surface connection” to stable bodies of
water that rendered them “indistinguishable” from
such waters. Id. at 755, 772 (emphasis in original).
By contrast, Justice Kennedy’s separate opinion in
Rapanos proposed a “significant nexus” standard that
would allow federal agencies to regulate local land so
long as it possessed some attenuated ecological
connection to navigable waters. Id. at 759 (Kennedy,
J., concurring). This amorphous, judge-made standard
has given the EPA and the Corps all the leash they
need to undermine Congress’s intent, “exercise[] the
6
discretion of an enlightened despot,” and displace the
judgment of “local zoning board[s].” Id. at 721, 738
(plurality op.).
This Court should resolve the confusion that has
now plagued lower courts for decades and led to
significant regulatory uncertainty by adopting the test
proposed by Justice Scalia. In doing so, it would honor
the more limited, cooperative role Congress intended
for the Federal Government to play in combating
water pollution, consistent with the Constitution, and
recognize the primary role of the States in preserving
our environment.
ARGUMENT
I.
CONGRESS INTENDED TO ADOPT A
COOPERATIVE
APPROACH
WITH
STATES UNDER THE CLEAN WATER ACT
THAT
WOULD
LIMIT
FEDERAL
CONTROL.
A.
The Statutory Terms “Navigable
Waters” and “Waters of the United
States” Have A Limited Meaning
That Protects The Prerogatives of
the States Over Water and Land
Management.
In enacting the CWA, Congress drew upon over
150 years of history, precedent, and prior legislation
that established the limited contours of the key
statutory terms “navigable waters” and “waters of the
United States.” That extensive pre-enactment history
7
establishes that the plain meaning of these terms
require that covered waters must, at minimum, be
“relatively permanent, standing or continuously
flowing bodies of water,” Rapanos, 547 U.S. at 739
(Scalia, J.). While the Corps initially interpreted these
terms in the CWA consistently with Congress’s
intended meaning, decades of judicial and
administrative improvisation have resulted in federal
overreach, confusion, and crippling costs on property
owners like the Sacketts. This Court should stanch
the bleeding and respect the boundaries of the CWA
that Congress originally put in place.
When Congress uses the phrase “navigable
waters,” it invokes its traditional power to regulate
interstate commerce under the U.S. Constitution. See
U.S. Const. art. I, sec. 8, cl. 3. As Chief Justice
Marshall recognized in Gibbons v. Ogden, 22 U.S. 1,
21-22 (1824), “the United States possess the general
power over navigation, and, of course, ought to control,
in general, the use of navigable waters,” and to do so
“for purposes of trade and navigation.” (Emphasis
omitted). Throughout our Nation’s history, this Court
has repeatedly recognized Congress’s power “to secure
the uninterrupted navigability of all navigable
streams within the limits of the United States.”
United States v. Rio Grande Dam & Irrigation Co., 174
U.S. 690, 703 (1899); see also United States v.
Appalachian Elec. Power Co., 311 U.S. 377, 407-08
(1940). While both Congress and the courts expanded
over time what they understood could fall within the
contours of “navigable waters,” the accepted
understanding of this term never expanded beyond the
8
relatively permanent bodies of water described in
Justice Scalia’s plurality opinion in Rapanos.
The history of Congress’s legislative efforts in this
area starts roughly in 1838, when Congress enacted a
statute that made it unlawful for a steamboat operator
to transport goods “in or upon the bays, lakes, rivers,
or other navigable waters of the United States”
without a license. 5 Stat. 304 (1838). This Court later
interpreted the statute’s phrase “navigable waters of
the United States,” consistent with its constitutional
underpinnings, to mean those waters that are
“navigable in fact,” or in other words “are used, or are
susceptible of being used, in their ordinary condition,
as highways for commerce . . . .” The Daniel Ball, 77
U.S. 557, 563 (1870); accord United States v. The
Montello, 78 U.S. 411 (1870). This Court then applied
the same “basic concept of navigability” in several
subsequent cases. Appalachian Elec. Power Co., 311
U.S. at 406 n.22 (collecting cases).
Against this backdrop, Congress repeatedly
adopted the term “navigable waters” in later statutes
in a similar manner to encompass continuous bodies of
water. The Rivers and Harbors Act of 1899, for
example, the Nation’s first federal environmental
statute, made it unlawful to discharge refuse into “any
navigable
water
of
the
United
States
. . . whereby navigation shall or may be impeded or
obstructed.” 30 Stat. 1121 (1899). And in the Federal
Water Power Act of 1920, Congress defined “navigable
waters” as “those parts of streams or other bodies of
water . . . which either in their natural or improved
9
condition . . . are used or suitable for use for the
transportation of persons or property in interstate or
foreign commerce . . . .” 41 Stat. 1063 (1920).
Whatever the precise formulation Congress used,
this Court continued to apply and develop the test for
“navigable waters” elaborated in Daniel Ball and
similar cases. See Appalachian Elec. Power Co., 311
U.S. at 406-07. For example, the Court extended the
concept of “navigable waters” to those that were once
navigable in fact, Economy Light & Power Co. v.
United States, 256 U.S. 113, 123 (1921), and those that
could with reasonable improvement become navigable
in fact, Appalachian Elec. Power Co., 311 U.S. at 40709; see also Petitioners Br. 35-36. But the waters at
issue were still relatively permanent standing or
flowing bodies of water.
Such was the state of the law when, in 1972,
Congress enacted the Clean Water Act, which made
unlawful the discharge or “addition of any pollutant to
navigable waters from any point source,” 33 U.S.C.
§§ 1311(a), 1362(12), and defined “navigable waters”
as “waters of the United States, including the
territorial seas,” id. § 1362(7). Despite its general
prohibition on covered discharges, the Act authorized
the EPA and the Corps to issue permits for releasing
pollutants into “navigable waters.” Id. §§ 1311(a),
1344(a), (d).
Congress’s use of the phrase “navigable waters” in
the CWA followed over a hundred years of
Congressional enactments and constitutional and
10
statutory elucidation in the courts. Indeed, given
Congress’s repeated readoption of the phrase following
numerous decisions of this Court, “it presumptively
was aware of the longstanding judicial interpretation
of the phrase and intended for it to retain its
established meaning.” Lamar, Archer & Cofrin, LLP
v. Appling, 138 S. Ct. 1752, 1762 (2018); see also
Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (noting
that “repetition of the same language in a new statute”
reflects incorporation of prior judicial decisions that
“settled [its] meaning”). Accordingly, as this Court
observed, the phrase “navigable waters” has “the
import of showing us what Congress had in mind as its
authority for enacting the CWA: its traditional
jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so
made.” Solid Waste Agency of N. Cook Cnty. v. U.S.
Army Corps of Eng’rs, 531 U.S. 159, 172 (2001)
(“SWANCC”).
To be sure, Congress in the CWA defined
“navigable waters” as “waters of the United States,”
rather than use the collective phrase “navigable
waters of the United States,” as it had in some prior
statutes. But as this Court observed, this “separate
definitional use” does not “constitute[] a basis for
reading the term ‘navigable waters’ out of the statute.”
Id. As recognized in Justice Scalia’s plurality opinion,
“the Act’s use of the traditional phrase ‘navigable
waters’ . . . confirms that it confers jurisdiction only
over relatively permanent bodies of water.” Rapanos,
547 U.S. at 734 (plurality op.) (emphasis in original).
In short, Congress’s unremarkable decision to make
11
“navigable waters” a defined term in the CWA cannot
be read as sufficient intent to depart from over a
century of established statutory usage and case law.
Cf. Davis v. Michigan Dep’t of Treasury, 489 U.S. 803,
813 (1989) (presuming that Congress intends to adopt
past judicial interpretations of a concept “absent an
express statement to the contrary”).
Even apart from that history, the plain meaning of
the term “waters of the United States” is not broad
enough to authorize the EPA and the Corps to regulate
subsurface or soggy land unconnected to any navigable
waterway. As Justice Scalia explained in his plurality
opinion in Rapanos, the ordinary public meaning of
that term at the time Congress adopted it
encompassed
“streams
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.” 547 U.S.
at 732 (quoting Webster’s New International
Dictionary 2882 (2d ed. 1954)). Therefore, “waters of
the United States” must “include only relatively
permanent, standing or flowing bodies of water.” Id.
And this Court’s case law, both before and after
adoption of the CWA, confirms that the term “waters”
was never extended so far as to encompass ephemeral
streams or intermittent flows. See Daniel Ball, 77 U.S.
at 563 (using “waters” and “rivers” as synonyms);
Appalachian Elec. Power Co., 311 U.S. at 407-09
(using
“navigable
waters”
and
“waterways”
interchangeably); United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 131 (1985) (describing
12
“rivers, streams, and other hydrographic features
more conventionally identifiable as ‘waters’”).
B.
The CWA’s Purposes and Structure,
Supported by the Federalism Canon,
Reinforce Congress’s Commitment
To Partner with the States.
The CWA’s express statutory purposes reinforce
the statute’s operative text. One such purpose, as the
Ninth Circuit in this case noted, is to “restore and
maintain the chemical, physical, and biological
integrity of the Nation’s waters.” Sackett v. EPA, 8
F.4th 1075, 1079 (9th Cir. 2021) (quoting 33 U.S.C.
§ 1251(a)). But the Ninth Circuit gave short shrift to
the CWA’s complementary policy “to recognize,
preserve, and protect the primary responsibilities and
rights of States . . . to plan the development and
use . . . of land and water resources . . . .” 33 U.S.C.
§ 1251(b). As this Court has previously noted, the
CWA “establishes distinct roles for the Federal and
State Governments” with respect to environmental
protection.
PUD No. 1 of Jefferson Cnty. v.
Washington Dep’t of Ecology, 511 U.S. 700, 704 (1994).
And contrary to what the EPA or the Corps may argue,
there is no reason why “the state and local
conservation efforts that the CWA explicitly calls for
are in any way inadequate for the goal of
preservation.” Rapanos, 547 U.S. at 745 (plurality
op.).
Federal regulation is not the end-all, be-all, and
States can and do protect water quality under State
13
law. In fact, as explained in the States’ amici brief in
support of the petition for certiorari, “many States
have implemented laws and regulations that are more
protective of their waters than if the CWA alone
applied. Many define the ‘state waters’ over which
they assert jurisdiction more broadly that ‘waters of
the United States.’” States Br. 6. In many States,
“state waters” include wetlands and most other waters
including ephemeral streams and subsurface waters
that are not waters of the United States. Id. at 6-7.
The principle of cooperative federalism runs
throughout the structure of the statute. For instance,
the CWA “requires each State, subject to federal
approval, to institute comprehensive water quality
standards establishing water quality goals for all
intrastate waters.” PUD No. 1, 511 U.S. at 704 (citing
33 U.S.C. §§ 1311(b)(1)(C), 1313). States are then
responsible for enforcing those standards, 33 U.S.C.
§ 1319(a), and providing a water quality certification
before the Federal Government may issue a license for
activities that could result in pollution of intrastate
waters, id. § 1341(a). States may even administer,
with federal approval, their own permit programs for
discharges into waters within their jurisdiction. See
id. § 1342(b). The CWA also charges States with
monitoring, and reporting biennially to the Federal
Government on, the quality of all waters within the
States’ purview. See id. § 1315(b).
Other structural considerations reinforce the
Federal Government’s limited jurisdictional role. For
example, the CWA distinguishes “navigable waters”
14
from “point sources,” and prohibits the discharge or
“addition of any pollutant to navigable waters from
any point source.” 33 U.S.C. § 1362(12)(A) (emphases
added). Unlike “navigable waters,” which constitute
relatively permanent bodies of water, “point sources”
include land-based features like “ditch[es], channel[s],
and conduit[s]” that only intermittently carry water
from one location to another. Rapanos, 547 U.S. at
735-36 (plurality op.) (citing 33 U.S.C. § 1362(14)). It
would make no sense to describe such land-based
conveyances as a “point source” for discharge to
“navigable waters” if the dry land were itself covered
“waters of the United States” subject to federal
permitting.
Indeed, Congress did not even intend for all
possible point sources and discharges to be covered by
the CWA, as “no legislation pursues its purposes at all
costs.” Rodriguez v. United States, 480 U.S. 522, 52526 (1987). For example, the CWA does not forbid the
discharge of dredged or fill material when it involves
activities like farming or ranching; maintaining or
rebuilding damaged dikes, dams, or levees; building
farm stock ponds; and, in some cases, creating or
maintaining farm or service roads, among other
things. 33 U.S.C. § 1344(f)(1). These exceptions to the
discharge prohibition would be rendered meaningless
if Congress had intended federal regulators’
permitting authority, via the phrase “navigable
waters,” to reach every patch of occasionally wet earth.
The carefully balanced and reticulated scheme
created by Congress in the CWA cannot operate as
15
intended so long as the EPA and the Corps can
interpret the term “navigable waters” to reach every
local, isolated, or intermittent deposit of water.
Indeed, the “extensive federal jurisdiction urged by the
Government would authorize the Corps to function as
a de facto regulator of immense stretches of intrastate
land—an authority the agency has shown its
willingness to exercise with the scope of discretion that
would befit a local zoning board.” Rapanos, 547 U.S.
at 738 (plurality op.).
Even absent Congress’s clear textual expressions
of purpose, reinforced by structure, to empower the
States to act as the principal regulators of local lands
and waters, ordinary canons of construction would
prohibit federal agencies from adopting such
expansive superintendence of state and local affairs.
That is because, “[t]o displace traditional state
regulation in such a manner, the federal statutory
purpose must be ‘clear and manifest.’” BFP v. Resol.
Tr. Corp., 511 U.S. 531, 544 (1994) (quoting English v.
General Elec. Co., 496 U.S. 72, 79 (1990)).
This Court has repeatedly described the
regulation of private property as “an essential state
interest” requiring a clear statement from Congress.
Id.; see also United States Forest Serv. v. Cowpasture
River Preservation Ass’n, 140 S. Ct. 1837, 1849-50
(2020) (requiring “exceedingly clear language” to
“significantly alter the balance between federal and
state power and the power of the Government over
private property”). And “[r]egulation of land use, as
through the issuance of the development permits
16
sought by [the EPA and the Corps under the CWA], is
a quintessential state and local power.” Rapanos, 547
U.S. at 738 (plurality op.) (citing FERC v. Mississippi,
456 U.S. 742, 767-68 (1982)).
Applying this canon to the CWA, this Court has
“f[ound] nothing approaching a clear statement from
Congress” to justify agency action that would “result
in a significant impingement of the States’ traditional
and primary power over land and water use.”
SWANCC, 531 U.S. at 174. That is unsurprising. Far
from a clear statement to displace traditional state
and local power, the CWA expressly empowers States
to take the reins of ensuring water quality within their
boundaries. And even assuming that phrases like
“navigable waters” or “waters of the United States”
“were ambiguous as applied to intermittent [water]
flows”—they are not—such latent ambiguity “hardly
qualifies” as a clear statement capable of supporting
an “unprecedented intrusion into traditional state
authority.” Rapanos, 547 U.S. at 737-38 (plurality
op.).
C.
The CWA’s Legislative History, and
Subsequent Congressional Actions,
Confirm Congress’s Intent To Limit
Its Jurisdiction To Traditional
Navigable Waters.
Because “the text and reasonable inferences from
it give a clear answer against the Government”—and
its practically boundless assertion of authority under
the CWA—“that, as we have said, is the end of the
17
matter.” Brown v. Gardner, 513 U.S. 115, 120 (1994)
(internal quotation marks omitted). There is thus no
need for this Court to read tea leaves from the
legislative history debates to discern the CWA’s plain
meaning. But to the extent the Court deems it
relevant, the CWA’s legislative history and
subsequent Congressional actions corroborate the
limitations in federal authority contained in the plain
text, express purposes, and structure of the statute,
and reinforce support for Justice Scalia’s Rapanos test.
Legislative History. The Senate Conference
Report accompanying the CWA did not define
“navigable waters,” but it included a statement that
the conferees “intend that the term ‘navigable waters’
be given the broadest possible constitutional
interpretation.” S. Conf. Rep. No. 92-1236, p. 144
(1972). While the EPA and the Corps have attempted
to use this language as support for expansive federal
authority, this Court has correctly deduced that
“neither this [statement], nor anything else in the
legislative history to which [the federal agencies]
point, signifies that Congress intended to exert
anything more than its commerce power over
navigation.” SWANCC, 531 U.S. at 168 n.3. That
inference is sound, as it would have been odd for
Congress in 1972 to suddenly invoke something other
than its historic power to regulate navigable waters,
which even the dissent in SWANCC conceded
“continued nearly a century of usage.” Id. at 182
(Stevens, J., dissenting).
18
What the conferees meant, instead, was that the
traditional test for navigable waters (first described in
Daniel Ball) had since developed to encompass all
relatively stable, continuous bodies of water (even if
not navigable in fact), consistent with Justice Scalia’s
approach. The history does not support, however, any
desire by Congress to extend its reach to any activity,
on any parcel of land, that might have some
attenuated ecological connection to traditional bodies
of water, as Justice Kennedy proposed in Rapanos.
Related legislative history confirms this Court’s
understanding of the conferees’ limited meaning. For
example, the CWA’s chief architect, Senator Edmund
Muskie, in explaining the Conference Report,
concurred that the term “navigable waters” should be
construed broadly. CWA 1972 History at 178. But for
Muskie, that meant that the term should “include all
water bodies, such as lakes, streams, and rivers,
regarded as public navigable waters in law which are
navigable in fact.” Id. (emphasis added). In Muskie’s
view, echoing the test set forth in Daniel Ball and its
progeny, “such waters shall be considered to be
navigable in fact when they form, in their ordinary
condition by themselves or by uniting with other
waters or other systems of transportation . . . a
continuing highway over which commerce is or may
be . . . conducted today.” Id.
Representative John Dingell, too, citing the
Conference Report, rejected a “narrow” or “technical”
definition of “navigable waters.” Id. at 250. But for
Dingell, like Muskie, that simply meant a fulsome
19
view of what constitutes relatively stable bodies of
water. For example, Dingell rejected the idea that
waters needed to actually cross state lines, recognizing
that “it is enough that the waterway serves as a link
in the chain of commerce among the States as it flows
in the various channels of transportation.” Id. at 250.
“The gist of the Federal test,” Dingell explained, “is the
waterway’s use as a highway.” Id. (internal citation
and quotation marks omitted).
Dingell also believed that the term “navigable
waters” encompassed two developments in the case
law since the time of Daniel Ball. Specifically,
navigable waterways included those “susceptible of
being used . . . with reasonable improvement,” and
waterways “which include sections presently
obstructed by falls, rapids, sand bars, currents,
floating debris, et cetera.” Id. (citing cases, including
Appalachian Elec. Power Co., 311 U.S. at 407-10).
While individual legislators may have differed in
their precise understanding of the scope of the CWA,
these statements reinforce the plain meaning of the
words “navigable waters” and “waters of the United
States” as limited to relatively permanent bodies of
water. Neither Muskie, Dingell, nor the conferees,
suggested that isolated waters or lands intermittently
occupied by water could be considered “waters of the
United States” via some ecological connection with
distant rivers or seas.
This conclusion finds further support in
legislators’ understanding of the CWA’s general
20
approach to cooperative federalism.
As Senator
Jennings Randolph remarked, the Senate Committee
on Public Works that drafted the CWA “has continued
the emphasis on a partnership approach in
environmental legislation so that State and local
governments are involved to a high degree in pollution
abatement and control.” CWA 1972 History at 1271.
The Committee members, he continued, “realize[d]
that a clean environment cannot be created and
sustained by legislative action alone,” and that “the
Federal Government by itself cannot achieve the kind
of environment we want.” Id. That cooperative
approach also augurs a circumscribed definition of
“navigable waters.”
In support of broader authority to regulate local
lands and waters, the EPA and the Corps may point to
parts of the legislative history that describe the CWA
as enacting a “comprehensive” regime for regulating
environmental pollution. City of Milwaukee v. Illinois
and Michigan, 451 U.S. 304, 317-19 & n.12 (1981)
(collecting relevant floor statements). But as this
Court understood, Congress’s adoption of a
comprehensive federal approach to pollution control
merely forecloses courts from applying federal common
law, or “often vague and indeterminate nuisance
concepts and maxims of equity jurisprudence,” to
displace or supplement the specific measures chosen
by Congress. Id. at 316-17. One paragraph earlier,
the Court reasoned that more rigorous “evidence of a
clear and manifest purpose” would be required to
prevent the States from exercising their historic police
powers. Id. As explained above, such evidence is
21
lacking from, and indeed is refuted by, the text and
structure of the CWA (and even its legislative history).
The Court in City of Milwaukee itself recognized that
the CWA established a partnership between the State
and Federal Governments for combating pollution.
See id. at 327.
By honoring the traditional division of labor
between the Federal and State Governments inherent
in the terms “navigable waters” and “waters of the
United States,” courts show respect for the
“comprehensive” scheme adopted by Congress in the
CWA. Indeed, it was Congress’s hope that the
statute’s specificity would mean Congress would not
have to “continually . . . look over the shoulders of the
administrators” applying it. CWA 1972 History at
1272 (statement of Sen. Randolph). Unfortunately,
that has not proven true, as courts have slackened the
reins that Congress put in place around the Federal
Government’s authority. The resulting uncertainty
could be eliminated through adoption of Justice
Scalia’s textually and historically supported test. By
contrast, courts that apply the freewheeling
“significant nexus” test invented by Justice Kennedy
in Rapanos or similar tests do precisely what the Court
in City of Milwaukee deemed impermissible—fashion
vague and indeterminate judge-made rules to further
the perceived equitable purposes of the statute.
Despite the agencies’ recent revisionist reading of
the legislative history, the Corps initially correctly
understood the limited nature of federal jurisdiction
under the CWA. In 1974, the Corps defined “navigable
22
waters” to mean “those waters of the United States
which are subject to the ebb and flow of the tide, and/or
are presently, or have been in the past, or may be in
the future susceptible for use for purposes of interstate
or foreign commerce.” 33 C.F.R. § 209.120(d)(1) (1974).
That construction echoed the traditional test for
“navigable waters” suggested by the Conference
Report and the statements of Muskie and Dingell.
That
reasonable
and
textually
supported
interpretation was vacated, however, in a short order
issued by a federal district court in Natural Resources
Defense Council v. Callaway, 392 F. Supp. 685 (D.D.C.
1975)—setting in motion a decades-long exercise in
judicial and administrative lawmaking that led
ultimately to this case.
The district court’s error in NRDC v. Callaway
consisted in misreading the Senate Conference Report
as indicating that Congress “asserted federal
jurisdiction over the nation’s waters to the maximum
extent permissible under the Commerce Clause of the
Constitution.” 392 F. Supp. at 686. But as explained
above, and affirmed by this Court in SWANCC,
Congress had the more modest ambition of
incorporating into the CWA, pursuant to its authority
over navigation, all relatively permanent, stable,
continuous bodies of water.
Even assuming, however, that “the [CWA’s]
legislative history is somewhat ambiguous,”
SWANCC, 531 U.S. at 168 n.3, the appropriate
response to that would be to apply the “plain text and
original understanding of [the] statute.” Id. at 169 n.5.
23
Eschewing clear text in favor of selective reliance on
some legislators’ statements, but not others, is an
exercise akin to “entering a crowded cocktail party and
looking over the heads of the guests for one’s friends.”
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,
concurring).
By reading selections of legislative history to
discern an unbridled purpose of regulating any
activity with a tenuous connection to the Nation’s
waters at any cost, opinions like the Rapanos dissent
(see 547 U.S. at 804 (Stevens, J., dissenting)) apply a
Through the Looking Glass approach to statutory
interpretation, giving pride of place to a partial view of
Congressional goals over the balance reflected in the
enacted text. “If courts fe[el] free to pave over . . .
statutory texts in the name of more expeditiously
advancing a policy goal, [they] risk failing to take
account of legislative compromises essential to a law’s
passage and, in that way, thwart rather than honor
the effectuation of congressional intent.” New Prime
Inc. v. Oliveira, 139 S. Ct. 532, 543 (2019) (cleaned up).
By adopting Justice Scalia’s approach, courts would
honor Congress’s conscious choice of a cooperative
federalism regime that provides significant federal
oversight of major waterways but leaves States as the
principal regulators of their own lands and waters.
Subsequent Actions.
Congressional actions
following the 1972 adoption of the CWA further show
that, despite increasingly aggressive agency
interpretations of the statute, Congress has not
wavered in its traditional understanding of the term
24
“navigable waters.”
In 1977, Congress made
amendments to the CWA, but without changing or
elaborating on the terms “navigable waters” or “waters
of the United States.” The Senate Report, describing
the draft ultimately adopted by Congress, confirmed
that “[t]he [C]ommittee [on Public Works’] amendment
does not redefine navigable waters.” S. Rep. No. 95370, 75 (1977). Rather, Congress sought to “assure
continued protection of all the Nation’s waters, [while]
allow[ing] States to assume the primary responsibility
for protecting those lakes, rivers, streams, swamps,
marshes, and other portions of the navigable waters
outside the [C]orps program.” Id. Congress in 1977,
therefore, continued to respect both the limited
understanding of federal jurisdiction over “navigable
waters” and the cooperative federalism approach
embedded in the CWA.
In more recent years, as the EPA and the Corps
adopted ever more expansive constructions of what
constitute “waters of the United States,” Congress has
either expressed its disapproval of such novel and
aggressive agency interpretations or tried to rein them
in. For example, Congress passed a bipartisan joint
resolution under the Congressional Review Act to
overturn a 2015 rule that the EPA and the Army Corps
of Engineers issued that had an expansive definition
of “waters of the United States” building off of Justice
Kennedy’s significant nexus test from Rapanos. S.J.
Res. 22, 114th Cong. (2016). This rule survived
Congressional nullification only because President
Obama—whose EPA wrote the 2015 rule—vetoed the
resolution.
25
Further, a recent Congressional budget resolution
applauded the “Navigable Waters Protection Rule,”
(NWPR) a policy that limits the reach of the Federal
Government under the Clean Water Act. S. Amdt. 655
to S. Con. Res. 5, 117th Cong. (2021). As Senator
Capito explained in support of the latter resolution,
the EPA’s efforts at expanding the definition of
“waters of the United States” beyond the traditional
understanding of “navigable waters” “would
completely redefine and reframe all water policy,”
creating uncertainty that would “devastate farmers,
manufacturers, and small business owners”—a
prediction that has proven prescient. 167 Cong. Rec.
S453 (2021). As Senator Capito and her colleagues
thus recognized, the EPA’s approach represented a
break from, rather than a continuation of, Congress’s
long-held understanding of the term. Further, the
NWPR closely adhered to the statute and the test
proposed by Justice Scalia.
Congress therefore
endorsed Justice Scalia’s test embodied in the NWPR
under the budget resolution as the proper reading of
the statute and Congress’s intent.
Far from failing to act in response to aggressive
agency overreach, contra Rapanos, 547 U.S. at 797
(Stephens, J., dissenting), these Congressional actions
show that Congress has consistently maintained its
position on the limited, traditional scope of the term
“navigable waters” in the CWA—endorsing Justice
Scalia’s test while disapproving Justice Kennedy’s
test. The post-enactment history of the CWA stands
in continuity with prior legislative enactments and
case law, dating back to the early days of the Republic,
26
that understood “navigable waters” as limited to
relatively permanent bodies of water. At minimum,
there is nothing that has happened in Congress since
1972 that could constitute the “overwhelming evidence
of acquiescence” in an agency interpretation required
to overcome the “plain text and original understanding
of a statute.” SWANCC, 531 U.S. at 169-70 & n.5;
Rapanos, 547 U.S. at 749-50 (plurality op.).
II.
THIS COURT SHOULD ADOPT JUSTICE
SCALIA’S TEST TO REIN IN AGENCY
OVERREACH
THAT
DEFIES
CONGRESS’S INTENT AND CAUSES
SUBSTANTIAL ECONOMIC HARM.
This case presents an ideal opportunity for the
Court to honor Congress’s intent to limit federal
jurisdiction under the CWA. That result would respect
the Congressionally appointed and constitutionally
supported role for the States under the statute. It also
would provide much needed guidance to lower courts
and clarity to farmers, ranchers, businesses, and
property owners like the Petitioners. Moreover, it
would place the EPA and the Corps on sound footing
moving forward, as they have historically taken a mile
whenever this Court has given them an inch of
interpretive legroom, leading to constantly changing
federal jurisdiction and associated harm to regulated
entities and States.
This Court has not hesitated to conclude that the
“plain text and import” of the CWA rules certain
27
agency interpretations out of bounds. SWANCC, 531
U.S. at 169-70; see also Rapanos, 547 U.S. at 731-32
(plurality op.). This Court, for example, invalidated
the EPA’s “Migratory Bird Rule,” which would have
subjected “ponds and mudflats” contained in an
“abandoned sand and gravel pit,” and isolated from
any traditional waterway, to federal jurisdiction.
SWANCC, 531 U.S. at 174. To provide certainty, now
is the time to set clearer guardrails for all water
features, emphasizing once and for all, as Justice
Scalia put it, that “[t]he plain language of the statute
simply does not authorize this ‘Land Is Waters’
approach to federal jurisdiction.” Rapanos, 547 U.S.
at 734 (plurality op.).
This Court could curb agencies’ discretion by
limiting it to those cases where, in Justice Scalia’s
formulation, wetlands’ “physical connection” to
navigable waterways “makes them as a practical
matter indistinguishable from waters of the United
States.” Id. at 755 (plurality op.) (emphasis in
original). Without a clearly worded decision endorsing
Justice Scalia’s test, the definition of “waters of the
United States” will continue to whipsaw from one
Administration to the next. These ever-changing
regulatory definitions continue to create (as it has
already created) confusion and havoc in the lives of
unsuspecting farmers, small businesses, and property
owners. Armed with an amoebic “significant nexus”
test, the EPA and the Corps have been emboldened to
extend federal jurisdiction into isolated and
intermittent wet patches like mudflats, sandflats,
ponds, and even prairie potholes. See 33 C.F.R.
28
§ 328.3(a)(3). Unable to predict where the EPA or the
Corps will claim authority next, homeowners are
caught unawares when the Federal Government
comes knocking. That mission creep carries not only
threats to individual liberties, but also a steep price
tag, with average permit applicants spending over two
years and $271,596 (as of 2006) to complete the
process—separate and apart from the legal fees often
required to contest federal jurisdiction. See Rapanos,
547 U.S. at 721 (plurality op.).
As has been observed time and again, the EPA’s
preferred definition of “waters of the United States” is
so expansive that it would embrace even the most
inconsequential accumulations of water. See, e.g.,
United States v. Johnson, 467 F.3d 56, 66 (1st Cir.
2006) (Torruella, J., dissenting) (noting that the
“significant nexus” “leaves the door open to continued
federal overreach”). Indeed, in recognition of how farreaching its asserted regulatory authority extended,
the EPA in 2015 felt the need specifically to exempt
“[p]uddles” because they would “otherwise meet the
terms” of its seemingly limitless definition. 33 C.F.R.
§ 328.3(b)(4)(vii) (2015).
The draconian economic and expansive political
consequences of this position further illustrate the
extent to which federal agencies have deviated from
Congressional intent by creatively reimagining the
scope of the terms “navigable waters” and “waters of
the United States” under the CWA. This Court can
have “confiden[ce] that Congress could not have
intended to delegate a decision of such economic and
29
political significance to an agency in so cryptic a
fashion.” Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 160 (2000). Rather, the
EPA’s “claim to extravagant statutory power over the
national economy” is “unreasonable” because it would
bring “about an enormous and transformative
expansion in EPA’s regulatory authority without clear
congressional authorization.” Utility Air Regulatory
Grp. v. EPA, 573 U.S. 302, 324 (2014). Congress must
“speak clearly if it wishes to assign to an agency
decisions of [such] vast economic and political
significance.” Id. (internal quotation marks omitted).
Far from clearly authorizing federal agencies to
act as nationwide land czars, Congress made clear its
intent in legislative text, structure, and history to
establish a limited federal regulatory presence in
cooperation with the States. In the CWA, Congress
selected language that, from practically the Founding,
was understood both to exercise limited jurisdiction
and to preserve the States’ traditional role as the
principal regulators of local waters and lands. But this
intent has now been turned on its head. Through the
“significant nexus” test, the EPA and the Corps can
instead use any ecological connection between land
and nearby water as a pretext for intrusive central
planning. This case presents an opportunity for the
Court to finally put the genie back in the bottle and
endorse the historically grounded and administrable
test proposed by Justice Scalia. Only then will
Congress’s dual purposes of cooperative federalism
and environmental protection in the CWA be fully
vindicated.
30
CONCLUSION
For the foregoing reasons, and those stated by the
petitioners, the Court should reverse the Ninth
Circuit.
Respectfully submitted,
April 18, 2022
Thomas M. Johnson, Jr.
Counsel of Record
William K. Lane III
William Turner
WILEY REIN LLP
2050 M Street N.W.
Washington, D.C. 20036
(202) 719-7000
tmjohnson@wiley.law
Counsel for Amici Curiae
APPENDIX
1a
APPENDIX A
The Members of Congress participating as amici are:
Senator Shelley Moore Capito of West Virginia
Senate Republican Leader Mitch McConnell of
Kentucky
Representative Sam Graves of Missouri
6th Congressional District
Minority Leader Kevin McCarthy of California
23rd Congressional District
Senator John Barrasso, M.D., of Wyoming
Senator Marsha Blackburn of Tennessee
Senator Roy Blunt of Missouri
Senator John Boozman of Arkansas
Senator Mike Braun of Indiana
Senator Richard Burr of North Carolina
Senator Bill Cassidy, M.D., of Louisiana
Senator John Cornyn of Texas
Senator Tom Cotton of Arkansas
Senator Kevin Cramer of North Dakota
Senator Mike Crapo of Idaho
2a
Senator Ted Cruz of Texas
Senator Steve Daines of Montana
Senator Joni K. Ernst of Iowa
Senator Deb Fischer of Nebraska
Senator Lindsey O. Graham of South Carolina
Senator Charles E. Grassley of Iowa
Senator William F. Hagerty of Tennessee
Senator Josh Hawley of Missouri
Senator John Hoeven of North Dakota
Senator Cindy Hyde-Smith of Mississippi
Senator James M. Inhofe of Oklahoma
Senator Ron Johnson of Wisconsin
Senator John Kennedy of Louisiana
Senator James Lankford of Oklahoma
Senator Cynthia M. Lummis of Wyoming
Senator Roger Marshall, M.D., of Kansas
Senator Jerry Moran of Kansas
Senator Lisa Murkowski of Alaska
3a
Senator Rand Paul, M.D., of Kentucky
Senator Rob Portman of Ohio
Senator James E. Risch of Idaho
Senator Marco Rubio of Florida
Senator Ben Sasse of Nebraska
Senator Rick Scott of Florida
Senator Tim Scott of South Carolina
Senator Richard Shelby of Alabama
Senator Dan Sullivan of Alaska
Senator John Thune of South Dakota
Senator Thom Tillis of North Carolina
Senator Pat Toomey of Pennsylvania
Senator Tommy Tuberville of Alabama
Senator Roger F. Wicker of Mississippi
Senator Todd Young of Indiana
Representative Steve Scalise of Louisiana
1st Congressional District
Representative David Rouzer of North Carolina
7th Congressional District
4a
Representative Robert B. Aderholt of Alabama
4th Congressional District
Representative Rick W. Allen of Georgia
12th Congressional District
Representative Mark Amodei of Nevada
2nd Congressional District
Representative Kelly Armstrong of North Dakota
At-Large Congressional District
Representative Jodey C. Arrington of Texas
19th Congressional District
Representative Brian Babin, D.D.S., of Texas
36th Congressional District
Representative James R. Baird of Indiana
4th Congressional District
Representative Jim Banks of Indiana
3rd Congressional District
Representative Andy Barr of Kentucky
6th Congressional District
Representative Cliff Bentz of Oregon
2nd Congressional District
Representative Jack Bergman of Michigan
1st Congressional District
Representative Stephanie Bice of Oklahoma
5th Congressional District
5a
Representative Andy Biggs of Arizona
5th Congressional District
Representative Dan Bishop of North Carolina
9th Congressional District
Representative Lauren Boebert of Colorado
3rd Congressional District
Representative Mike Bost of Illinois
12th Congressional District
Representative Mo Brooks of Alabama
5th Congressional District
Representative Ken Buck of Colorado
4th Congressional District
Representative Larry Bucshon, M.D., of Indiana
8th Congressional District
Representative Ted Budd of North Carolina
13th Congressional District
Representative Tim Burchett of Tennessee
2nd Congressional District
Representative Michael C. Burgess, M.D., of Texas
26th Congressional District
Representative Kat Cammack of Florida
3rd Congressional District
Representative Jerry L. Carl of Alabama
1st Congressional District
6a
Representative Earl L. “Buddy” Carter of Georgia
1st Congressional District
Representative Steve Chabot of Ohio
1st Congressional District
Representative Liz Cheney of Wyoming
At-Large Congressional District
Representative Ben Cline of Virginia
6th Congressional District
Representative Andrew S. Clyde of Georgia
9th Congressional District
Representative James Comer of Kentucky
1st Congressional District
Representative Eric A. “Rick” Crawford of Arkansas
1st Congressional District
Representative Dan Crenshaw of Texas
2nd Congressional District
Representative John R. Curtis of Utah
3rd Congressional District
Representative Rodney Davis of Illinois
13th Congressional District
Representative Scott DesJarlais, M.D., of Tennessee
4th Congressional District
Representative Jeff Duncan of South Carolina
3rd Congressional District
7a
Representative Neal P. Dunn, M.D., of Florida
2nd Congressional District
Representative Jake Ellzey of Texas
6th Congressional District
Representative Tom Emmer of Minnesota
6th Congressional District
Representative Randy Feenstra of Iowa
4th Congressional District
Representative A. Drew Ferguson IV of Georgia
3rd Congressional District
Representative Michelle Fischbach of Minnesota
7th Congressional District
Representative Chuck Fleischmann of Tennessee
3rd Congressional District
Representative Russ Fulcher of Idaho
1st Congressional District
Representative Matt Gaetz of Florida
1st Congressional District
Representative Mike Gallagher of Wisconsin
8th Congressional District
Representative Andrew R. Garbarino of New York
2nd Congressional District
Representative Mike Garcia of California
25th Congressional District
8a
Representative Bob Gibbs of Ohio
7th Congressional District
Representative Carlos Gimenez of Florida
26th Congressional District
Representative Louie Gohmert of Texas
1st Congressional District
Representative Bob Good of Virginia
5th Congressional District
Representative Lance Gooden of Texas
5th Congressional District
Representative Paul A. Gosar, D.D.S., of Arizona
4th Congressional District
Representative Garret Graves of Louisiana
6th Congressional District
Representative Mark Green, M.D., of Tennessee,
7th Congressional District
Representative H. Morgan Griffith of Virginia
9th Congressional District
Representative Glenn Grothman of Wisconsin
6th Congressional District
Representative Michael Guest of Mississippi
3rd Congressional District
Representative Brett Guthrie of Kentucky
2nd Congressional District
9a
Representative Andy Harris, M.D., of Maryland
1st Congressional District
Representative Vicky Hartzler of Missouri
4th Congressional District
Representative Kevin Hern of Oklahoma
1st Congressional District
Representative Yvette Herrell of New Mexico
2nd Congressional District
Representative Jaime Herrera Beutler of Washington
3rd Congressional District
Representative Jody Hice of Georgia
10th Congressional District
Representative Clay Higgins of Louisiana
3rd Congressional District
Representative French Hill of Arkansas
2nd Congressional District
Representative Ashley Hinson of Iowa
1st Congressional District
Representative Richard Hudson of North Carolina
8th Congressional District
Representative Bill Huizenga of Michigan
2nd Congressional District
Representative Darrell Issa of California
50th Congressional District
10a
Representative Ronny L. Jackson of Texas
13th Congressional District
Representative Chris Jacobs of New York
27th Congressional District
Representative Bill Johnson of Ohio
6th Congressional District
Representative Dusty Johnson of South Dakota
At-Large Congressional District
Representative Mike Johnson of Louisiana
4th Congressional District
Representative Jim Jordan of Ohio
4th Congressional District
Representative John Joyce, M.D., of Pennsylvania
13th Congressional District
Representative John Katko of New York
24th Congressional District
Representative Mike Kelly of Pennsylvania
16th Congressional District
Representative Trent Kelly of Mississippi
1st Congressional District
Representative Young Kim of California
39th Congressional District
Representative Darin LaHood of Illinois
18th Congressional District
11a
Representative Doug LaMalfa of California
1st Congressional District
Representative Doug Lamborn of Colorado
5th Congressional District
Representative Robert E. Latta of Ohio
5th Congressional District
Representative Jake LaTurner of Kansas
2nd Congressional District
Representative Debbie Lesko of Arizona
8th Congressional District
Representative Julia Letlow of Louisiana
5th Congressional District
Representative Billy Long of Missouri
7th Congressional District
Representative Barry Loudermilk of Georgia
11th Congressional District
Representative Blaine Luetkemeyer of Missouri
3rd Congressional District
Representative Nancy Mace of South Carolina
1st Congressional District
Representative Nicole Malliotakis of New York
11th Congressional District
Representative Tracey Mann of Kansas
1st Congressional District
12a
Representative Thomas Massie of Kentucky
4th Congressional District
Representative Tom McClintock of California
4th Congressional District
Representative David B. McKinley, P.E., of West
Virginia
1st Congressional District
Representative Cathy McMorris Rodgers of
Washington
5th Congressional District
Representative Daniel Meuser of Pennsylvania
9th Congressional District
Representative Carol D. Miller of West Virginia
3rd Congressional District
Representative Mary E. Miller of Illinois
15th Congressional District
Representative Mariannette Miller-Meeks, M.D.,
of Iowa
2nd Congressional District
Representative John R. Moolenaar of Michigan
4th Congressional District
Representative Alex X. Mooney of West Virginia
2nd Congressional District
Representative Barry Moore of Alabama
2nd Congressional District
13a
Representative Blake Moore of Utah
1st Congressional District
Representative Markwayne Mullin of Oklahoma
2nd Congressional District
Representative Gregory F. Murphy, M.D., of North
Carolina
3rd Congressional District
Representative Troy E. Nehls of Texas
22nd Congressional District
Representative Dan Newhouse of Washington
4th Congressional District
Representative Ralph Norman of South Carolina
5th Congressional District
Representative Jay Obernolte of California
8th Congressional District
Representative Burgess Owens of Utah
4th Congressional District
Representative Steven M. Palazzo of Mississippi
4th Congressional District
Representative Greg Pence of Indiana
6th Congressional District
Representative Scott Perry of Pennsylvania
10th Congressional District
14a
Representative August Pfluger of Texas
11th Congressional District
Representative Bill Posey of Florida
8th Congressional District
Delegate Aumua Amata Coleman Radewagen of
American Samoa
At-Large Congressional District
Representative Guy Reschenthaler of Pennsylvania
14th Congressional District
Representative Hal Rogers of Kentucky
5th Congressional District
Representative John Rose of Tennessee
6th Congressional District
Representative Matthew M. Rosendale, Sr., of
Montana
At-Large Congressional District
Representative Chip Roy of Texas
21st Congressional District
Representative John H. Rutherford of Florida
4th Congressional District
Representative Austin Scott of Georgia
8th Congressional District
Representative Mike Simpson of Idaho
2nd Congressional District
15a
Representative Adrian Smith of Nebraska
3rd Congressional District
Representative Jason Smith of Missouri
8th Congressional District
Representative Pete Stauber of Minnesota
8th Congressional District
Representative Michelle Steel of California
48th Congressional District
Representative Elise M. Stefanik of New York
21st Congressional District
Representative Chris Stewart of Utah
2nd Congressional District
Representative Claudia Tenney of New York
22nd Congressional District
Representative Glenn “GT” Thompson of
Pennsylvania
15th Congressional District
Representative Tom Tiffany of Wisconsin
7th Congressional District
Representative David G. Valadao of California
21st Congressional District
Representative Jeff Van Drew of New Jersey
2nd Congressional District
16a
Representative Beth Van Duyne of Texas
24th Congressional District
Representative Ann Wagner of Missouri
2nd Congressional District
Representative Tim Walberg of Michigan
7th Congressional District
Representative Jackie Walorski of Indiana
2nd Congressional District
Representative Michael Waltz of Florida
6th Congressional District
Representative Randy Weber of Texas
14th Congressional District
Representative Daniel Webster of Florida
11th Congressional District
Representative Bruce Westerman of Arkansas
4th Congressional District
Representative Roger Williams of Texas
25th Congressional District
Representative Robert J. Wittman of Virginia
1st Congressional District
Representative Steve Womack of Arkansas
3rd Congressional District
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.