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

No. 21-454

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------MICHAEL SACKETT & CHANTELL SACKETT,

Petitioners,

v.

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

WYOMING STOCK GROWERS ASSOCIATION,

WYOMING ASSOCIATION OF CONSERVATION

DISTRICTS, AND PROGRESSIVE PATHWAYS

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------KAREN BUDD-FALEN

Counsel of Record

BUDD-FALEN LAW OFFICES LLC

300 East 18th Street

P.O. Box 346

Cheyenne, WY 82003

(307) 632-5105

karen@buddfalen.com

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

iii

INTEREST OF AMICUS CURIAE ......................

1

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

3

ARGUMENT ........................................................

7

A.

“Waters of the United States” 1899 to 2015 ....

8

B.

The 2015 Clean Water Rule used the Significant Nexus Test to assume Jurisdiction over Wetlands not Traditionally

Regulated by the Clean Water Act ............ 16

C.

The 2019 Clean Water Rule Withdrew the

2015 Rule and the 2020 Rule Used the

Rapanos Plurality Test to Define a “Water

of the United States” ................................. 20

D.

The 2021 Proposed Rule Proposes to Revise the Definition of “Waters of the

United States” and Subsequent Announcements from the Army Corps of Engineers

further the Regulatory Uncertainty Suffered by the Public ..................................... 23

E.

A Subjective Jurisdictional Test of Hydrological Connectivity similar to this Court’s

“functional equivalent” Test Developed in

County of Maui will further Burden the

Public ......................................................... 26

CONCLUSION..................................................... 31

ii

TABLE OF CONTENTS – Continued

Page

APPENDIX

Maps – Application of WOTUS Rule................. App. 1

Regulatory Guidance Letter, U.S. Army Corps of

Engineers (June 14, 2005) ............................. App. 3

Navigable Waters Protection Rule Vacatur, U.S. Army

Corps of Engineers (January 5, 2022) ........... App. 8

iii

TABLE OF AUTHORITIES

Page

CASES

Army Corps of Engineers v. Hawkes Co., 578 U.S.

___, 136 S.Ct. 1807 (2016) .......................................26

Bob Jones University v. United States, 461 U.S.

574 (1983) ................................................................13

Cty. of Maui, Hawaii v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ........................... 26, 27, 29, 30

In re E.P.A., 803 F.3d 804 (6th Cir. 2015) ...................21

North Dakota v. EPA, 127 F.Supp.3d 1047

(N.D.N. 2015) ...........................................................21

Pascua Yaqui Tribe v. United States Environmental Protection Agency, No. CV-20-00266TUC-RM, 2021 WL 3855977 (D. Ariz. Aug. 30,

2021) .............................................................. 5, 23, 25

Rapanos v. United States, 547 U.S. 715

(2006) ............................................................... passim

Sackett v. E.P.A., 556 U.S. 120 (2012) .........................23

Solid Waste Agency of Northern Cook County

(SWANCC) v. U.S. Army Corps of Engineers,

531 U.S. 159 ....................................................... 15, 16

State of Colorado v. Environmental Protection

Agency, 989 F.3d 874 (10th Cir. 2021) ................ 6, 23

The Daniel Ball, 77 U.S. 557 (1870) .............................9

U.S. v. Hamilton, 952 F.Supp.2d 1271 (D. Wyo.

2013) .................................................................. 28, 29

iv

TABLE OF AUTHORITIES – Continued

Page

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ......................... 10, 11, 12, 13, 15

United States v. Rutherford, 442 U.S. 544 (1979) ........13

United States v. Wilson, 133 F.3d 251 (4th Cir.

1997) ........................................................................14

Utility Air Regulatory Group v. EPA, 573 U.S.

302 (2014) ................................................................30

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ..................................................10

STATUTES

28 U.S.C. § 2462 ..........................................................26

33 U.S.C. § 1311 ..........................................................26

33 U.S.C. § 1311(a) ........................................................9

33 U.S.C. § 1319 ..........................................................26

33 U.S.C. § 1342 ..........................................................26

33 U.S.C. § 1344 ...................................................... 9, 26

33 U.S.C. § 1362(7) .................................................. 9, 31

33 U.S.C. § 401 ..............................................................9

RULES AND REGULATIONS

2015 Clean Water Rule ............................. 16, 19, 20, 23

2020 Navigable Waters Protection Rule, 86 Fed.

Reg. 69372 (Dec. 7, 2021) ..........................................5

v

TABLE OF AUTHORITIES – Continued

Page

Sup. Ct. R. 37 ................................................................1

Sup. Ct. R. 37.2(a) .........................................................1

Sup. Ct. R. 37.6 .............................................................1

Clean Water Act .................................................. passim

Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, § 502(7), 86 Stat.

816 .............................................................................9

Federal Water Pollution Control Act of 1948, 62

Stat. 1155 ..................................................................9

Rivers and Harbors Appropriations Act of 1899,

30 Stat. 1121 .............................................................9

33 C.F.R. § 323.2 .........................................................11

33 C.F.R. § 323.2(c) .....................................................10

33 C.F.R. § 328.3(a) .......................................................9

33 C.F.R. § 328.3(a)(1)........................................... 18, 22

33 C.F.R. § 328.3(a)(8)........................................... 17, 24

33 C.F.R. § 328.3(b) .....................................................24

33 C.F.R. § 328.3(c) ............................................... 22, 24

33 C.F.R. § 328.3(c)(1) ........................................... 18, 22

33 C.F.R. § 328.3(c)(2) ........................................... 18, 21

33 C.F.R. § 328.3(c)(3) ..................................... 18, 19, 20

33 C.F.R. § 328.3(c)(5) ........................................... 17, 18

40 C.F.R. § 19.4 ...........................................................26

vi

TABLE OF AUTHORITIES – Continued

Page

51 Fed. Reg. 41206 (Nov. 13, 1986) .............................13

53 Fed. Reg. 20764 (June 6, 1988) ..............................13

68 Fed. Reg. 1991, 1995 App. A Joint Memorandum (Jan. 15, 2003) .................................................15

80 Fed. Reg. 37054 (June 29, 2015) .............. 5, 7, 16, 17

84 Fed. Reg. 2059 (Feb. 6, 2019) .................................26

84 Fed. Reg. 56626 (Oct. 22, 2019) .............................21

85 Fed. Reg. 22250 (April 21, 2020) ....................... 5, 21

86 Fed. Reg. 69372 (Dec. 7, 2021) ......................... 23, 24

OTHER AUTHORITIES

Congressional Research Service (CRS), Evolution

of the Meaning of “Waters of the United States”

in the Clean Water Act, R44585 (2019) ............. 13, 15

EPA Regulatory Guidance Letter, No. 05-02

(June 14, 2005) ........................................................25

House Bill 3199, 95th Cong., 1st Sess., §16

(1997) .......................................................................13

Ralph E. Heimilic et al., Economic Research Service, U.S. Dep’t of Agriculture, Wetlands and

Private Interests and Public Benefits, AER765 (1998) ................................................................14

S. Rep. No. 92-414 (1972) reprinted in 1972 U.S.

Code Cong. & Admin. News ....................................12

vii

TABLE OF AUTHORITIES – Continued

Page

Sunding & Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland

Permitting Process, 42 Natural Resources J.

59 (2002) ..................................................................27

USGS: Professional Paper 17 – Preliminary Report on the Geology and Water Resources of

Nebraska West of the One Hundred and Third

Meridian (Streams) (nps.gov) (last accessed

April 6, 2022) .............................................................4

U.S. Dep’t of the Interior, Fish and Wildlife Service., et al., Federal Manual for Identifying

and Delineating Jurisdictional Wetlands

(1989) .......................................................................14

1

INTEREST OF AMICUS CURIAE1

The Wyoming Stock Growers Association (Association) was organized on April 4, 1872 to advance and

protect the interest of the state’s livestock producers.

It was the second state cattlemen’s organization created in the United States. Wyoming Stock Growers

Association was the first association formed in the Wyoming territory. It is the only organization in the state

focused entirely on serving the needs of the cattle industry, which is the largest segment of Wyoming’s agricultural production. The mission of the Association is

to serve the livestock business and families of Wyoming by protecting their economic, legislative, regulatory, judicial, environmental, custom, and cultural

interests. The Association advocates for the protection

of private property rights from overly burdensome regulatory interference. The Association also maintains a

legal fund to enable it to initiate, defend or support litigation on critical issues with the potential to have a

major impact on its members’ ranching enterprises.

The Wyoming Association of Conservation Districts (WACD) provides leadership for the conservation

of Wyoming’s soil and water resources, promotes the

control of soil erosion, promotes and protects the quality of Wyoming’s waters, promotes wise use of Wyoming’s water and all other natural resources, preserves

1

Rule 37 statement: No party’s counsel authored any of this

brief; amicus alone funded its preparation and submission. See

Sup. Ct. R. 37.6. Counsel for the Petitioners consented in writing

to the filing of this amicus and Counsel for the Respondent filed a

blanket consent. See Sup. Ct. R. 37.2(a).

2

and enhances wildlife habitat, protects the tax base

and promotes the health, safety and general welfare of

the citizens of the State of Wyoming through a responsible conservation ethic. The WACD advocates for the

protection of property rights and land and water resources through local solutions to environmental concerns.

Progressive Pathways is an entity formed by private property owners in Wyoming with the continuing

purpose of educating members and other interested

publics regarding pipelines, condemnation and landowners’ rights, especially as these issues affect private

property owners. The association also works to take

whatever steps are necessary to protect local residents

(including schools, farmsteads, and areas of concentrated populations), to address environmental damage

and to help protect and improve landowners’ rights

through legislation, public education, the courts and

any other forum that will further this purpose.

The Amici Curiae represent thousands of agricultural landowners owning tens of thousands of acres of

land in the West. Many of these landowners are similarly situated to the Petitioners because they are part

of the regulated public who face questions regarding

whether their lands fall within the Clean Water Act’s

jurisdiction. As described in greater detail in this brief,

the practical effects of not knowing whether one’s

lands or activities may fall within the auspices of the

Clean Water Act are costly. Decades of ambiguous and

subjective jurisdictional determinations have created

significant uncertainty for landowners who are required

3

to comply with the Clean Water Act as it is currently

being applied by the agencies. A landowner could

spend of thousands of dollars to determine whether

their land or activity falls within the Clean Water Act

in order to avoid spending the hundreds of thousands

of dollars it normally costs to acquire a Clean Water

Act § 404 permit from the Federal agencies. Even more

troublesome, if a landowner guesses the answer wrong,

the owner could face millions of dollars in fines and

prison time for Clean Water Act violations. The ambiguous and subjective enforcement of the Clean Water

Act also creates incalculable opportunity costs for

many. Countless projects and improvements have been

shelved because a landowner does not want to go

through the regulatory burden of undergoing an unpredictable Clean Water Act jurisdictional determination. Accordingly, the amici bring a unique perspective

to this case as to the impact this case will have to all

private property owners and believes that its Amicus

Curiae brief will assist this Court in its ruling.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Since this Court issued its decision in Rapanos v.

United States, 547 U.S. 715 (2006), the Federal agencies have issued inconsistent and vastly divergent regulations and policies defining the terms “waters of the

United States” (WOTUS) under the Clean Water Act

(CWA). Such vast swings in the regulatory definitions

have led private property owners, like the ones represented by amici, to expend thousands of dollars in

4

consulting and attorneys’ fees and hundreds of hours

of time in trying to decide whether the use of their

property could necessitate a permit under the Clean

Water Act. While certainly this determination for a

landowner is simple if their property includes a defined navigable water, but it is not easy for a landowner

in Wyoming whose property includes Lodgepole Creek,

a stream whose headwaters starts on the eastern slope

of the Laramie Mountains in southeastern Wyoming.

That stream crosses private property 15 miles north of

the City of Cheyenne, Wyoming, then turns southeast

and 278 miles later runs into the South Platte River

in Nebraska. The South Platte River is a navigable

water. According to the U.S. Geological Survey, Lodgepole Creek is intermittent for much of its path or becomes “perfectly dry” in the summertime. Additionally,

at times, entire portions of the creek are diverted into

irrigation ditches.2 For those landowners who own

property along the Creek, depending on the Presidential administration in power or the various interpretations of the district and circuit courts, there is

simply no way to know what constitutes a “water of

the United States” for permitting purposes under the

CWA.

The purpose of this brief is to illustrate the breadth

in interpretations of the words “waters of the United

States.” Perhaps the clearest illustration is shown in

2

USGS: Professional Paper 17 – Preliminary Report on the

Geology and Water Resources of Nebraska West of the One Hundred and Third Meridian (Streams) (nps.gov) (last accessed April

6, 2022).

5

the exhibits to amici WACD’s comments to the 2020

Navigable Waters Protection Rule, 86 Fed. Reg. 69372

(Dec. 7, 2021). See App. 1. This is a map of the “waters

of the United States” within the Middle North Platte

Watershed in Natrona County, Wyoming, as defined

under the regulations issued on June 29, 2015. 80 Fed.

Reg. 37054 (June 29, 2015). App. 2 to this brief is a map

of the same location, the Middle North Platte Watershed in Natrona County, Wyoming, as defined under

then-draft Navigable Waters Protection Rule. 85 Fed.

Reg. 22250 (April 21, 2020). These maps clearly demonstrate the need for a clear, easy to understand definition to assist both the private property owners and

Federal agencies in preparing a lasting definition of

“waters of the United States.”

Another reason for the Supreme Court to clarify

the confusion is to provide certainty to private property owners. To illustrate, on June 14, 2005, the COE

issued a Regulatory Guidance Letter that stated that

jurisdictional determinations of wetlands would be

good for five years unless new information warranted

revision of the determination before the five-year expiration date. See Exhibit 3. In contrast, on January 5,

2022, based on a “nationwide injunction” from the Federal District Court for the District of Arizona,3 the COE

3

Although the Federal District Court for the District of Arizona enjoined implementation of the 2019 regulations, No. CV20-00266-TUC-RM, 2021 WL 3855977, at *5 (D. Ariz. Aug. 30,

2021), the Court of Appeals for the Tenth Circuit refused to issue

an injunction, finding that the 2019 rules should remain in effect

pending a decision on the merits. 989 F.3d 874 (10th Cir. 2021).

No decision on the merits has been issued.

6

issued guidance that states that it would not rely on

approved jurisdictional determinations that were issued under the prior Presidential administration that

would have been binding for the five-year period under

the 2005 regulatory guidance. See App. 8.

As applied to the question before this Court, the

Ninth Circuit Court of Appeals affirmed the Federal

agencies’ reliance on the “significant nexus” test from

2008 even though those terms can be widely defined

depending on the Presidential administration in power

at the time. amici urges the Court to reject the Ninth

Circuit Court’s determination that the “significant

nexus” test alone is the proper test for determining

whether a wetland is subject to the permitting requirements of the CWA. Instead, the Amici request that this

Court determine that the definition of a “water of the

United States” must satisfy both the significant nexus

test and the Rapanos plurality’s “relative permanence”

test.

A finding by this Court that a WOTUS should satisfy both the plurality decision and the significant

nexus test would satisfy both Justice Kennedy’s and

Justice Scalia’s concerns as stated in the Rapanos decision. The concern regarding the plurality’s relative

permanence test, as articulated by Justice Kennedy, is

that the test could allow the agency to manipulate the

objective standard to regulate “the merest trickle.” Id.

at 769. On the other hand, historical application of the

significant nexus test has shown that Justice Scalia’s

concerns are valid in that the significant nexus test, as

7

it is applied on a case-by-case basis, would impermissibly expand the scope of the CWA due to the natural

ambiguity and subjectivity of the test. See id. at 75657; see also 80 Fed. Reg. 37054 (June 29, 2015). To address both concerns, the amici suggest this Court

adopt an approach that equally utilizes both tests. The

significant nexus test provides important physical indicators that would allow the Federal agencies and the

regulated public to assess whether a water body or feature on their property that falls actually contributes to

the water quality of a navigable water. The relative

permanence standard adds to this by ensuring that the

agencies are only regulating features which are actually adjacent to a navigable water or share a continuous surface. Combining the tests and requiring that a

water body or feature satisfy both is the best way to

address the concerns highlighted by both Justice Kennedy and Justice Scalia. There would not be federal

regulation of “the merest trickle” and the jurisdictional

scope would follow an objective geographical and scientific baseline.

---------------------------------♦---------------------------------

ARGUMENT

Since this Court’s decision in Rapanos, the Federal

agencies’ interpretations of whether certain wetlands

fall within the definition of a “water of the United

States” have varied widely. In deciding that case, Justice Scalia, joined by the Chief Justice Roberts, Justice

Thomas and Justice Alito concluded that the phrase

8

“waters of the United States” “includes only those relatively permanent, standing or continuously flowing

bodies of water ‘forming geographic features’ that describe in ordinary parlance ‘streams,’ ‘oceans, rivers

[and] lakes.’ ” Rapanos, 547 U.S. at 716 [internal citations omitted]. With regard to the terms “navigable waters,” the Justices held that while “navigable waters” is

broader that the terms “waters of the United States,”

the CWA confers jurisdiction “only over relatively permanent water bodies of water.” Id. Regarding wetlands, the Justices would only find federal regulatory

jurisdiction in cases where the wetland had a continuous surface connection to other jurisdictional waters.

Id. at 7763.

Justice Kennedy, in his concurring opinion, framed

the question before the Court as whether the term navigable water extends to wetlands that do not contain,

and are not adjacent to, waters that are navigable. Id.

at 759. He answered that question by determining that

the Federal agencies would be required to make a

“case-by-case determination” on whether there was a

“significant nexus” between a wetland and an adjacent

non-navigable tributary or a navigable water. Id. at

784.

A. “Waters of the United States” 1899 to 2015

Jurisdiction of the federal government over “waters of the United States” has a vast history. Starting

in 1899, the Rivers and Harbors Appropriations Act

was passed, giving federal jurisdiction over “navigable

9

waters of the United States.” See Rivers and Harbors

Appropriations Act of 1899, 30 Stat. 1121, 1151 (codified in 33 U.S.C. § 401). The term “navigable in fact”

meant that the waters were “used, or are susceptible of

being used, . . . as highways for commerce, over which

trade and travel are or may be conducted in the customary modes of trade and travel on water.” The Daniel

Ball, 77 U.S. 557, 563 (1870).

In 1948, Congress started using the term “interstate waters” to determine federal jurisdiction under

the Federal Water Pollution Control Act of 1948. See

Federal Water Pollution Control Act of 1948, 62 Stat.

1155. These waters were “all rivers, lakes, and other

waters that flow across, or form a part of, a state’s

boundaries.” 62 Stat. at 1161. In 1972, the Federal Water Pollution Control Act Amendments of 1972 (later

known as the Clean Water Act) amended the jurisdictional reach of the federal government to “the waters

of the United States, including the territorial seas.” See

Federal Water Pollution Control Act Amendments of

1972, P.L. 92-500, § 502(7), 86 Stat. 816, 886 (codified

at 33 U.S.C. § 1362(7)).

Originally, under the CWA, 33 U.S.C. § 1311(a),

any discharge of dredged or fill materials into navigable waters, defined as waters of the United States, was

forbidden unless authorized by a permit issued by the

Department of Defense, Army Corp of Engineers

(COE) pursuant to 33 U.S.C. § 1344. In 1978, the COE

issued regulations redefining “WOTUS” to include

“tributaries, interstate waters and their tributaries,

and non-navigable intrastate waters whose use or

misuse could affect interstate commerce.” 33 C.F.R.

10

§ 328.3(a) (1978). The COE also defined the term wetlands to mean those areas that are inundated or saturated by surface or ground water at a frequency and

duration sufficient to support, and that under normal

circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs,

and similar areas. 33 C.F.R. § 323.2(c) (1978).

The application of those regulations was brought

to the Supreme Court in 1985. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). In that

case, the Respondent owned 80 acres of “low-lying,

marshy land” near Lake St. Clair in Macomb County,

Michigan. Id. In 1976, the Respondent began placing

fill materials on its property to prepare to construct a

housing development. Id. The COE filed suit in the

United States District Court for the Eastern District of

Michigan, seeking to enjoin Respondent from filling

the property without the COE’s permission. Id. at 125.

The COE argued that because a portion of the Respondents’ land was below 575.5 feet above sea level,

it was a covered wetland and thus required a permit

before filling. Id.

The lower court determined that “the [COE’s] regulatory authority under the statute and its implementing regulations must be narrowly construed to avoid a

taking without just compensation in violation of the

Fifth Amendment.” Id. at 126. The Supreme Court disagreed on three bases. First, regarding the “regulatory

takings” argument, the Court noted that “land-use regulations to a particular piece of property [are] a taking

only ‘if the ordinance does not substantially advance

11

legitimate state interests . . . or denies an owner economically viable use of his land.’ ” Id. Thus, the Court

concluded that “If neither the imposition of the permit

requirement itself nor the denial of a permit necessarily constitutes a taking, it follows that the Court of

Appeals erred in concluding that a narrow reading of

the [COE] regulatory jurisdiction over wetlands was

‘necessary’ to avoid ‘a serious taking problem.’ ” Id. at

127.

Second, the Supreme Court used the 1978 COE’s

regulations to determine that the land was a wetland

categorized as a jurisdictional WOTUS under the

CWA. Id. at 130. The Court stated:

The District Court found that respondent’s

property was “characterized by the presence

of vegetation that requires saturated soil conditions for growth and reproduction,” and that

the source of the saturated soil conditions on

the property was groundwater. . . . In addition, the court found that the wetland located

on respondent’s property was adjacent to a

body of navigable water, since the area characterized by saturated soil conditions and

wetland vegetation extended beyond the

boundary of respondent’s property to Black

Creek, a navigable waterway. . . . Together,

these findings establish that respondent’s

property is a wetland adjacent to a navigable

waterway. Hence, it is part of the “waters of

the United States” as defined by 33 C.F.R.

§ 323.2 (1985), and if the regulation itself is

valid as a construction of the term “waters of

the United States” as used in the Clean Water

12

Act, a question which we now address, the

property falls within the scope of the [COE’s]

jurisdiction over “navigable waters” under

§ 404 of the Act.

Id. at 130 to 131. (Internal citations omitted)

Finally, the Court looked to the COE’s expertise as

an “adequate basis for a legal judgement.” Id. at 134.

The Court determined that while Congress may not

have specifically suggested that a WOTUS should include waters that are not “navigable in fact,” the intent

of the CWA is to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” Id. at 132 (noting that for the “protection of

aquatic ecosystems, Congress recognized, demanded

broad federal authority to control pollution, for ‘[w]ater

moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.’ ” S.

Rep. No. 92-414, p. 22 (1972) reprinted in 1972 U.S.

Code Cong. & Admin. News, 3668, 3742. This determination was based, in part, on the finding that:

The regulation of activities that cause water

pollution cannot rely on . . . artificial lines . . .

but must focus on all waters that together

form the entire aquatic system. Water moves

in hydrologic cycles, and the pollution of this

part of the aquatic system, regardless of

whether it is above or below an ordinary highwater mark, or mean high tide line, will affect

the water quality of the other waters within

that aquatic system.

Id. at 133 to 134.

13

As an additional justification, the Supreme Court

determined that in 1977, Congress had attempted to

determine the scope of the COE’s jurisdiction under

§ 404 of the CWA. Id. at 136 (citing to House Bill 3199,

95th Cong., 1st Sess., § 16 (1997)). However, no consensus could be reached and the original definition of “waters of the United States” was retained. Id. at 137.

Thus, the Supreme Court determined that Congress’

failure to limit the authority of the COE was significant because “a refusal by Congress to overrule an

agency’s construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has

been brought to Congress’ attention through legislation specifically designed to supplant it.” Id. (citing Bob

Jones University v. United States, 461 U.S. 574, 599–

601 (1983); United States v. Rutherford, 442 U.S. 544,

554 (1979)). Thus, the Court determined that the

COE’s judgement was reasonable to allow federal jurisdiction over wetlands adjacent to navigable waters.

Id. at 134.

Following Riverside Bayview Homes, the COE and

the Environmental Protection Agency (EPA) engaged

in rulemaking to again interpret the CWA. For example, the COE interpreted the CWA to “govern all waters which were used or may have been used by

migratory birds crossing state lines.” 51 Fed. Reg. 41206,

41217 (Nov. 13, 1986). The EPA adopted these same

regulations in 1988. 53 Fed. Reg. 20764, 20765 (June 6,

1988). See also, Congressional Research Service (CRS),

14

Evolution of the Meaning of “Waters of the United

States” in the Clean Water Act, R44585 (2019).

In 1989, additional guidance was issued, this time

to counter the disagreements about the technical

standards used to delineate the physical boundaries of

jurisdictional waters, particularly wetlands. Ralph E.

Heimilic et al., Economic Research Service, U.S. Dep’t

of Agriculture, Wetlands and Private Interests and

Public Benefits, AER-765, 11 (1998). This led to the

first Federal Manual for Identifying and Delineating

Jurisdictional Wetlands in January 1989. See U.S.

Dep’t of the Interior, Fish and Wildlife Service., et al.,

Federal Manual for Identifying and Delineating Jurisdictional Wetlands (1989).

Additional guidance was also issued by the COE

following the Fourth Circuit Court’s decision in United

States v. Wilson, 133 F.3d 251 (4th Cir. 1997). In that

case, a jury convicted three defendants of violating the

CWA when they placed fill material into wetland property located ten miles from the Chesapeake Bay and

six miles from the Potomac River in Maryland. Id. at

254. The defendants argued that the regulatory definition of “waters of the United States” which included all

waters for which the use, degradation, or destruction

of which could affect interstate or foreign commerce exceeded the COE’s statutory authority in the Clean Water Act and Congress’s constitutional authority in the

Commerce Clause. Wilson, 133 F.3d at 256-257. The

Fourth Circuit agreed. Id. Thus, the COE’s 2000 guidance that was issued in response to that case explained

that “within the Fourth Circuit only, ‘isolated waters’

15

must be shown to have an actual connection to interstate or foreign commerce. ‘Isolated waters,’ in Clean

Water Act parlance, are waters that are not navigablein-fact, not interstate, not tributaries of the foregoing,

and not hydrologically connected to such waters – but

whose use degradation or destruction could affect interstate commerce.” CRS R44585 at 18.

In 2001, the Supreme Court heard Solid Waste

Agency of Northern Cook County (SWANCC) v. U.S.

Army Corps of Engineers, 531 U.S. 159. In that case,

the Court evaluated whether the CWA’s jurisdiction

extended to an abandoned sand and gravel pit which

contained water that became habitat for migratory

birds. The Court held that the COE’s assertion of jurisdiction over isolated waters based on their use by migratory birds exceeded their authority. The Court

contrasted SWANCC to Riverside Bayview Homes by

recognizing that the wetlands in question in Riverside

Bayview Homes were adjacent to navigable waters. See

SWANCC, 531 U.S. at 167-68. Emphasis added. In

SWANCC, the waters in question were not adjacent to

open water and therefore lacked a “significant nexus”

to navigable waters.

In January 2003, the COE and EPA issued a notice

of proposed rulemaking, including a joint memorandum, regarding how Federal agency field staff should

address jurisdictional issues under the CWA, including

a revised joint memorandum on the effect of SWANCC.

68 Fed. Reg. 1991, 1995 App. A Joint Memorandum (Jan.

15, 2003). The agencies later abandoned that proposed

16

rulemaking effort, leaving uncertainties regarding interpretations of SWANCC.

B. The 2015 Clean Water Rule used the

Significant Nexus Test to Assume Jurisdiction over Wetlands not Traditionally

Regulated by the Clean Water Act.

Under the guise of following the science, as well as

this Court’s guidance in SWANCC and Rapanos, the

EPA and the COE published a final rule defining the

scope of waters falling under the jurisdiction of the

CWA on June 29, 2015. 80 Fed. Reg. 37054. In its executive summary, the Federal agencies emphasized that

Justice Kennedy’s significant nexus standard was an

important element of their interpretation of the CWA.

Id. at 37056. The agencies further claimed that they

also used the Rapanos plurality’s standard by establishing boundaries on the scope of “waters of the

United States” and in support of the exclusions of their

definition of a WOTUS. Id.

In determining the parameters of the significant

nexus test, the Federal agencies focused on Justice

Kennedy’s words that those bodies of water must ‘‘either alone or in combination with similarly situated

[wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered

waters more readily understood as ‘navigable.’ ’’ Id. at

37065 citing Rapanos, 547 U.S. at 780. Since many of

Justice Kennedy’s terms in his significant nexus test

were left undefined, the agencies liberally interpreted

17

the test based on their objectives. Id. In turn, the agencies used three criteria to analyze whether a water

body fell under the significant nexus test: (1) which waters are ‘‘similarly situated,’’ and thus should be analyzed in combination, with (2) the waters in the

‘‘region,’’ for purposes of a significant nexus analysis;

and (3) the types of functions that should be analyzed

to determine if waters significantly affect the chemical,

physical, or biological integrity of traditional navigable

waters, interstate waters, or the territorial seas. Id.

In using those guiding principles to develop the

2015 rule, the changes to the scope of the CWA compared to the 1980s regulations and the 2008 guidance

document were immense. First, the 2015 CWA rule included all waters located within 4,000 feet of the highwater mark of waters identified as “waters of the

United States” whenever that water body is determined to have a significant nexus with a traditionally

navigable water. 33 C.F.R. § 328.3(a)(8) (2015). The

rule then defined the term “significant nexus” to mean

a water, including wetlands, either alone or in combination with other similarly situated waters in the region, that significantly affects the chemical, physical,

or biological integrity of a water used for (or capable of

being used for) interstate commerce, all interstate waters, and territorial seas. 33 C.F.R. § 328.3(c)(5) (2015).

A water had a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in

the region, contributed significantly to the chemical,

physical, or biological integrity of the nearest water

18

used for interstate commerce, interstate water, or territorial sea. Id. Thus, under the 2015 rule, a body of

water could fall within the jurisdiction of the CWA

even if its individual connection or function may not

independently qualify because it falls within “similarly

situated waters.”

Similar to the 1986 rule, the 2015 CWA rule defined adjacent wetlands as jurisdictional. 33 C.F.R.

§ 328.3(a)(1) (2015). However, the definition of “adjacent” was expanded to include “neighboring” waters.

33 C.F.R. § 328.3(c)(1) (2015). The rule then broadly

defined “neighboring” waters, as including: (1) waters

within 100 feet of a water used for interstate commerce, interstate water, territorial seas, impoundment

of jurisdictional waters, or tributary; (2) waters within

100-year floodplain to a maximum of 1,500 feet of the

ordinary high-water mark; or (3) waters within 1,500

feet of the high tide line. 33 C.F.R. § 328.3(c)(2) (2015).

Additionally, the rule specified that the entire water

was considered “neighboring” even if only a portion of

the body falls into any of the definitions. Id.

Finally, the 2015 rule greatly expanded the jurisdiction of the CWA by specifying that certain tributaries could be considered a WOTUS. The 2015 rule

defined tributaries as those bodies that contribute

flows to a water used for interstate commerce, interstate water, or territorial sea characterized by the presence of physical indicators of a bed and banks and an

ordinary high-water mark. 33 C.F.R. § 328.3(c)(3) (2015).

Tributary may be natural, man-altered, or man-made.

Id. Importantly, no flow metrics measuring a typical

19

standard year were required to determine whether a

tributary fell within jurisdiction of the CWA, instead,

the agency relied on the subjective physical indicators

of having a bank, a bed and an ordinary high-water

mark to determine whether a tributary had a significant nexus to a navigable water. Id.

Ultimately, the 2015 Clean Water rule specifically

inflicted two burdens onto the regulated public. First,

it significantly expanded the floor of what may be considered a jurisdictional water beyond what was ever

previously contemplated by the regulated public. Second, the 2015 rule failed to provide regulatory certainty to the public.

As indicated in App. 1, a map prepared by the

WACD, the 2015 rule widened the reach of the CWA to

include isolated wetlands that fell within a flood plain

or within 4000 feet of an ordinary high-water mark.

Before the 2015 rule many of these waters were never

considered jurisdictional waters and presumably fell

under state and local government jurisdiction. The

2015 rule, however, shifted the presumption to assume

that bodies of water within these buffer zones, even if

they may be isolated, were jurisdictional waters under

the Clean Water Act.

While significantly expanding the theoretical

scope of the CWA, the 2015 rule also failed to provide

regulatory certainty to the public. For example, the

agency relied heavily upon physical indicators as to

whether a tributary may be jurisdictional. In the arid

West, there are ditches and gullies that may receive

20

water flow once a decade (or in some cases, once every

hundred years), but the 2015 regulations did not provide clarity as to whether those ditches or gullies

would have been considered jurisdictional. See 33 C.F.R.

§ 328.3(c)(3) (2015). Thus, the regulated public could

not rely upon the 2015 regulations to determine

whether they would have to acquire a CWA § 404 permit to perform work on an ephemeral or an intermittent tributary located on their property. See App. 1. The

public also had the same problem when determining

whether a feature on their land would become jurisdictional because of “similarly situated waters.” The rule

did not articulate any objective standard or limitation

as to the geographic connectivity or limitation of what

features could be connected, thus, a landowner whose

feature may not individually amount to a significant

nexus connection to a navigable water could suddenly

be grouped in with countless other features in the region to suddenly fall within the agencies’ jurisdiction.

C. The 2019 Clean Water Rule Withdrew

the 2015 Rule and the 2020 Rule Used

the Rapanos Plurality Test to Define a

“Water of the United States.”

With the inauguration of President Trump in

2019, the Clean Water Act regulations changed again.

First, on October 22, 2019, the Federal agencies promulgated a final rule repealing the 2015 rule for its failure to: (1) provide any limitations on the Federal

agencies authorities, including those articulated by

Justice Kennedy in the Rapanos decision; (2) recognize

21

and preserve the State’s primary responsibilities to

“prevent, reduce, and eliminate pollution”; (3) avoid an

unconstitutional encroachment of federal jurisdiction

over State authority; and (4) provide an adequate administrative record support for the 2015 “distancebased” limitations.4 84 Fed. Reg. 56626 (Oct. 22, 2019).

The Federal agencies also repealed the 2015 rule based

upon the myriad of federal court challenges and injunctions to implementing the rule. Those included

North Dakota v. EPA, 127 F.Supp.3d 1047, 1060

(N.D.N. 2015) (enjoining implementation of the 2015

rule in the States of Alaska, Arizona, Arkansas, Idaho,

Iowa, Missouri, Montana, Nebraska, Nevada, North

Dakota, South Dakota, and Wyoming); In re E.P.A., 803

F.3d 804, 808 (6th Cir. 2015) (staying the 2015 rule

based, in part, on the uncertainty in the definitions of

navigable waters and “waters of the United States.”)

The 2019 regulations then instructed that the Federal

agencies were to implement the regulations that existed pre-2015, informed by applicable agency guidance documents and Supreme Court precedent. 84 Fed.

Reg. at 56626.

Second, on April 21, 2020, the Federal agencies issued a new rule defining “waters of the United States,”

“navigable waters” and wetlands. 85 Fed. Reg. 22250

(Apr. 21, 2020). The 2020 rule determined that “waters

of the United States” included:

4

See 33 C.F.R. § 328.3(c)(2) (2015). Compare Exhibit 1 with

Exhibit 2.

22

(1) The territorial seas, and waters which are

currently used, or were used in the past, or

may be susceptible to use in interstate or foreign commerce, including waters which are

subject to the ebb and flow of the tide; (2)

Tributaries; (3) Lakes and ponds, and impoundments of jurisdictional waters; and (4)

Adjacent wetlands.

33 C.F.R. § 328.3(a)(1).

Adjacent wetlands were defined as wetlands that:

(1) “Abut, meaning to touch at least at one point or side

of ”; (2) “Are inundated by flooding in a typical year”;

(3) “Are physically separated but only by a natural

berm, bank, dune, or similar natural feature”; or (4)

“Are physically separated only by an artificial dike,

barrier, or similar artificial structure so long as that

structure allows for a direct hydrologic surface connection between the wetlands and a ‘water of the United

States.’ ” Id. at § 328.3(c)(1). “An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the

structure allows for a direct hydrologic surface connection through or over that structure in a typical year. Id.

The Federal agencies have jurisdiction over “adjacent

wetlands” if they are adjacent to a traditional navigable water, jurisdictional ditches, jurisdictional lakes

and ponds or impoundments of otherwise jurisdictional waters. Id. at § 328.3(c).

Just like the 2015 rule, as soon as the 2020 regulation was finalized litigation ensued. On August 20,

2021, the Federal District Court for the District of

23

Arizona granted the Federal agencies’ request to remand the 2020 rule and then vacated the implementation of the rule. Pascua Yaqui Tribe v. United States

Environmental Protection Agency, No. CV-20-00266TUC-RM, 2021 WL 3855977, at *5 (D. Ariz. Aug. 30,

2021). In contrast, the Tenth Circuit Court of Appeals

held that the Colorado Federal District Court abused

its discretion enjoining the implementation of the 2020

rule pending a decision on the merits of the rulemaking. State of Colorado v. Environmental Protection Agency,

989 F.3d 874 (10th Cir. 2021). In so holding, the Tenth

Circuit included a quotation from the original Sackett

case: “The particulars of this case, like so many others,

flow from the ‘notoriously unclear’ reach of the Clean

Water Act. Sackett v. E.P.A., 556 U.S. 120, 132 (2012)

(Alito, J., concurring).” 989 F.3d at 879 (10th Cir. 2021).

D. The 2021 Proposed Rule Proposes to Revise the Definition of “Waters of the United

States” and Subsequent Announcements

from the Army Corps of Engineers further the Regulatory Uncertainty Suffered by the Public.

On November 18, 2021, the EPA and the COE proposed new regulations that rescinded the 2020 Navigable Waters Protection Rule and revised the

definition of “waters of the United States” to resemble

much of the 2015 Clean Water Rule. 86 Fed. Reg. 69372

(Dec. 7, 2021). However, many aspects of that proposed

rule create even greater regulatory uncertainty than

even the 2015 rules. The agencies also promised that

24

there would likely be a second round of rulemaking

which would build upon the foundation of the proposed

rule. Id. at 69374.

The proposed rule again defined adjacent wetlands to include “neighboring” wetlands. 33 C.F.R.

§ 328.3(c). However, unlike the 2015 rule, the proposed

2021 rule does not define “neighboring,” so the public

is left to wonder if the agency will unofficially use the

broad definition of “neighboring” found in the 2015 rule

or if the agency will use some other undefined test. Id.

Additionally, the proposed rule repeatedly uses the

term “similarly situated waters” as a means to bring

certain waters into the jurisdictional scope of the CWA

by combining those waters with “similarly situated waters.” Similar to the 2015 rule, the agency never articulates what a “similarly situated water” might be.

Thus, the public is left in a similar situation in which

a landowner whose feature may not individually

amount to a significant nexus connection to a navigable water could suddenly be grouped in with countless

other features in the region to fall within the agency’s

jurisdiction. Perhaps most troublesome to the public,

many of the features that were specifically excluded

from the “waters of the United States” definition in the

2015 rule were not included in the 2021 proposed rule.

Some of these features include specific exclusions for

groundwater water, certain ditches with ephemeral

and intermittent flows, and certain features like artificially irrigated areas, stock watering ponds, and

puddles. See 33 C.F.R. § 328.3(b) (2015) compared to

the proposed 33 C.F.R. § 328.3(a)(8) and (9) (2021)

25

(specifically excluding water treatments systems and

prior converted cropland from CWA jurisdiction, but

not including other features and bodies of water previously excluded in 2015 and 2020 regulations). Without

these specific exclusions, the public is left to speculate

whether there are circumstances where those previously excluded waters may fall within the agencies’ interpretation of the CWA’s jurisdictional scope.

Perhaps even more disruptive to the public, the

Federal agencies have now publicly announced that

they may not honor jurisdictional determinations

made under the previous administration. See App. 8, 5

January 2022 – Navigable Waters Protection Rule Vacatur, U.S. Army Corps of Engineers (Jan. 5, 2022). In

discussing the vacatur of the 2020 Navigable Waters

Protection Rule, the COE announced that it would only

honor those approved jurisdictional determinations

that were completed prior to the ruling in Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. Id.

at App. 9. Further, the COE suggested that it could reopen certain approved jurisdictional determinations

that were issued under the prior Presidential administration that would have been binding for the fiveyear period under the 2005 regulatory guidance. See

id. To illustrate how disruptive this stance is to the

public, on June 14, 2005, the COE issued a regulatory

Guidance letter that stated that jurisdictional determinations of wetlands would be good for five years unless

new information warranted revision of the determination before the five-year expiration date. See Exhibit 3

– EPA Regulatory Guidance Letter, No. 05-02 (June 14,

26

2005). Thus, the public now must now decide whether

they will risk relying upon a previous determination

and face possibly regulatory backlash from the agency

in the future.

E. A Subjective Jurisdictional Test of Hydrological Connectivity similar to this

Court’s “functional equivalent” Test

Developed in County of Maui will further Burden the Public.

As illustrated in Justice Alito’s dissent in County

of Maui, Hawaii v. Hawaii Wildlife Fund, the risk of an

individual guessing the CWA jurisdictional question

wrong is immense:

The Clean Water Act imposes a regime of

strict liability, §§ 1311, 1342, 1344, backed by

criminal penalties and steep civil fines,

§ 1319. Thus, “the consequences to landowners even for inadvertent violations can be

crushing.” Army Corps of Engineers v. Hawkes

Co., 578 U.S. ___, ___, 136 S.Ct. 1807, 1816,

195 L.Ed.2d 77 (2016) (Kennedy, J., concurring). The Act authorizes as much as $54,833

in fines per day (or more than $20 million per

year), 40 C.F.R. § 19.4; 84 Fed. Reg. 2059 (Feb.

6, 2019), and contains a 5-year statute of limitations. 28 U.S.C. § 2462. And the availability

of citizen suits only exacerbates the danger to

ordinary landowners. Even when the EPA and

the relevant state agency conclude that a permit is not needed, there is always the possibility that a citizen suit will result in a very

27

costly judgment. The interpretation set out

above, by providing a relatively straightforward rule, provides a measure of fair notice

and promotes good-faith compliance.

Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, 140

S. Ct. 1462, 1489 (Alito, J., dissenting) (2020).

Further, in addition to the cost of getting the answer wrong, the cost to be in compliance is also immense. The plurality in Rapanos perfectly illustrates

this dilemma:

The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for

a nationwide permit spends 313 days and

$28,915 – not counting costs of mitigation or

design changes. Sunding & Zilberman, The

Economics of Environmental Regulation by

Licensing: An Assessment of Recent Changes

to the Wetland Permitting Process, 42 Natural

Resources J. 59, 74-76 (2002). “[O]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits.” Id., at

81. These costs cannot be avoided, because the

Clean Water Act “impose[s] criminal liability,”

as well as steep civil fines, “on a broad range

of ordinary industrial and commercial activities.”

Rapanos v. United States, 547 U.S. 715, 721 (2006).

Landowners in Wyoming have felt the crushing

weight of a zealous agency prosecuting their CWA

28

jurisdictional determination. One example of this is

the case of David Hamilton, a landowner in Worland,

Wyoming. In 2005 David Hamilton undertook reclamation and improvement activities on the Slick Creek irrigation ditch. U.S. v. Hamilton, 952 F.Supp.2d 1271,

1272 (D. Wyo. 2013). Part of his work included filling in

and redirecting the ditch. Id. In the spring of 2009, the

EPA issued a compliance order to Mr. Hamilton claiming that he violated the CWA and that he had to remove the fill material from Slick Creek to restore it to

its previous condition. Id. Mr. Hamilton contested that

Slick Creek was a jurisdictional water of the United

States and claimed that the activities fell within an exception to the CWA. Id. In turn, the EPA brought suit

against Mr. Hamilton seeking an injunction ordering

Mr. Hamilton to restore Slick Creek to its previous conditions and imposed civil fines upon him. Id. After

nearly five years, Mr. Hamilton faced over $62,000,000

in fines. After a lengthy case before the Federal District

Court for the District of Wyoming, and over one million

dollars spent in costs and attorney’s fees, a jury found

that Mr. Hamilton did not violate the CWA. U.S. v.

Hamilton, Case 2:10-cv-00231-ABJ ECF No. 180 *1 (D.

Wyo. Jul. 31, 2014). In its order denying the EPA’s motion for a judgment as a matter of law, the court noted

that “the evidence adduced at trial painted a much

more nuanced picture than was presented at the motion for summary judgment stage . . . The Government

has used and continues to use ‘Slick Creek’ in a unitary

sense, but the trial evidence showed that two separate drainages feed into Slick Creek as it passes

through Hamilton’s property and there is a significant

29

difference in those drainages above and below the influence of irrigation.” Id. at *4. As an additional note,

although requested, Hamilton was not awarded his

costs and fees in defending the action brought against

him. Thus, even though Mr. Hamilton won his case, he

still lost because he could not recover the costs he accumulated from defending a case brought against him

by the government agency.

Cases like Hamilton, as well as the observations

made in Rapanos and County of Maui highlight the

fact that the public needs an objective standard that it

can rely upon. The “functional equivalent” test articulated in County of Maui does not offer such an objective

standard. In County of Maui, this Court articulated

that a § 404 permit is required when there is a direct

discharge from a point source into navigable water or

when there is the functional equivalent of a direct discharge. Cty. of Maui, Hawaii v. Hawaii Wildlife Fund,

140 S. Ct. 1462, 1476 (2020). In creating its ruling that

groundwater may be considered a point source when

the discharge is a functional equivalent to a direct discharge, this Court acknowledged that “there are too

many potential factors applicable to factually different

cases for this Court now to use more specific language.”

Id. However, in addition to five other potential factors,

time and distance will be the most important factors in

most cases, but not necessarily every case. Id. at 1477.

The Court also recognized the difficulty this approach

will have on the regulated public because “it does not,

on its own, clearly explain how to deal with middle instances,” but that this issue can be resolved through

30

the courts who can “provide guidance through decisions on individual cases.” Id. at 1476-77.

Ultimately, the Court’s own words indicate that

following a “time and distance” standard will place the

regulated public in the same position as it currently

sits today. Under such a test, each administration

could direct the agency to either loosen or strengthen

the standards it uses to determine a feature’s jurisdiction under the CWA similar to the regulatory yo-yo the

public has experienced since nearly the inception of the

CWA. As has been noted, CWA includes potential penalties for violating the Act that can amount to thousands of dollars in fines and prison time. Additionally,

having to rely on the whims of each presidential administration violates the “clear-statement” rule articulated by the Court which states that Congress

must speak clearly if it “wishes to assign an agency decision of vast ‘economic and political significance.’ ” See

Cty. of Maui, Hawaii, 140 S. Ct. at 1490 (Alito, J., dissent) citing Utility Air Regulatory Group v. EPA, 573

U.S. 302 (2014) (UARG). Drafting an opinion that

states that a water body or feature must both meet the

significant nexus test and the relative permanence

test will adequately protect the public from the whims

of inconsistent and often overzealous regulatory agencies.

---------------------------------♦---------------------------------

31

CONCLUSION

In sum, amici urge this Court to reject the Ninth

Circuit Court’s test for determining whether wetlands

are “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1362(7). Rather, Amici believe that

the more appropriate standard is the plurality test

articulated by Justice Scalia in the Rapanos case and

with Justice Kennedy’s “significant nexus test.”

Respectfully submitted,

KAREN BUDD-FALEN

Counsel of Record

BUDD-FALEN LAW OFFICES LLC

300 East 18th Street

P.O. Box 346

Cheyenne, WY 82003

(307) 632-5105

karen@buddfalen.com

Counsel for Amicus Curiae