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 THE AMERICAN PETROLEUM

INSTITUTE, THE ASSOCIATION OF OIL PIPE

LINES, AND THE AMERICAN GAS

ASSOCIATION AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

_________

MARA E. ZIMMERMAN

MEREDITH B. CODY

AMERICAN PETROLEUM

INSTITUTE

200 Massachusetts Ave., N.W.

Washington, D.C. 20001

(202) 682-8000

Counsel for American

Petroleum Institute

CATHERINE E. STETSON

Counsel of Record

SEAN MAROTTA

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

cate.stetson@hoganlovells.com

Counsel for Amici Curiae

Additional counsel listed on inside cover

STEVEN M. KRAMER

ASSOCIATION OF OIL PIPE LINES

900 Seventeenth Street, N.W., Suite 600

Washington, D.C. 20006

(202) 408-7970

Counsel for Association of

Oil Pipe Lines

TIMOTHY PARR

PAMELA LACEY

AMERICAN GAS ASSOCIATION

400 North Capitol Street, N.W.

Washington, D.C. 20001

(202) 824-7000

Counsel for American

Gas Association

TABLE OF CONTENTS

Page

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

STATEMENT OF INTEREST .................................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 5

I.

CLEAR JURISDICTIONAL RULES

ARE NECESSARY TO ACHIEVE THE

CLEAN WATER ACT’S CORE

OBJECTIVES .................................................... 5

II. THE SCOPE OF FEDERAL

JURISDICTION OVER WETLANDS

REMAINS UNSETTLED ................................ 10

III. THE RAPANOS PLURALITY

PROVIDES A CLEAR,

ADMINISTRABLE RULE ............................... 17

CONCLUSION .......................................................... 22

(i)

ii

TABLE OF AUTHORITIES

Page

CASES:

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ......................................... 6

Georgia v. Wheeler,

418 F. Supp. 3d 1336 (S.D. Ga. 2019) ............... 15

In re EPA & Dep’t of Def. Final Rule,

803 F.3d 804 (6th Cir. 2015) ............................. 15

Northern Cal. River Watch v. City of

Healdsburg,

496 F.3d 993 (9th Cir. 2007) ............................. 12

Precon Dev. Corp. v. U.S. Army Corps of

Eng’rs,

633 F.3d 278 (4th Cir. 2011) ....................... 12, 13

Rapanos v. United States,

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

Sackett v. EPA,

566 U.S. 120 (2012) ................................. 7, 20, 21

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ......................................... 8

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ......................................... 8, 9

United States v. Bailey,

571 F.3d 791 (8th Cir. 2009) ............................. 12

United States v. Chevron Pipe Line Co.,

437 F. Supp. 2d 605 (N.D. Tex. 2006) ......... 13, 20

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009) ............................. 12

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. Donovan,

661 F.3d 174 (3d Cir. 2011)............................... 12

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006) ............................. 12

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006).......................... 12, 13

United States v. Lucas,

516 F.3d 316 (5th Cir. 2008) ............................. 12

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007) ......................... 12

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

578 U.S. 590 (2016) ....................................... 7, 21

STATUTES:

16 U.S.C. § 1536........................................................ 7

33 U.S.C. § 1251(a) ................................................... 5

33 U.S.C. § 1251(b) ............................................... 5, 6

33 U.S.C. § 1255........................................................ 6

33 U.S.C. § 1319........................................................ 7

33 U.S.C. § 1342(a) ................................................... 6

33 U.S.C. § 1344(a) ................................................... 6

33 U.S.C. § 1344(d) ................................................... 6

33 U.S.C. § 1362(7) ................................................... 3

42 U.S.C. § 4332........................................................ 7

REGULATIONS:

40 C.F.R. § 230.10(a) ................................................ 7

40 C.F.R. § 230.10(d) ................................................ 7

iv

TABLE OF AUTHORITIES—Continued

Page

Clean Water Rule,

80 Fed. Reg. 37,054 (June 29, 2015) ........... 15, 20

Consolidated Permit Regulations,

45 Fed. Reg. 33,290 (May 19, 1980)................ 3, 4

Interim Final Rule for Regulatory Programs of the Corps of Engineers,

47 Fed. Reg. 31,794 (July 22, 1982) .................... 4

Navigable Waters Protection Rule,

85 Fed. Reg. 22,250 (Apr. 21, 2020) ............ 15, 16

Revised Definition of “Waters of the

United States,”

86 Fed. Reg. 69,372 (Dec. 7, 2021) .................... 16

OTHER AUTHORITIES:

Jonathan H. Adler, Wetlands, Property

Rights, and the Due Process Deficit in

Environmental Law, Cato Sup. Ct.

Rev. (2012) ......................................................... 20

Jason Scott Johnston, Environmental Permits: Public Property Rights in Private

Lands and the Extraction and Redistribution of Private Wealth, 96 Notre

Dame L. Rev. 1559 (2021) ................................... 7

v

TABLE OF AUTHORITIES—Continued

Page

Revised Memorandum from Benjamin H.

Grumbles, Assistant Administrator for

Water, Env’t Prot. Agency, & John

Paul Woodley, Jr., Assistant Sec’y of

the Army (Civil Works), Dep’t of the

Army, Clean Water Act Jurisdiction

Following the U.S. Supreme Court’s

Decision in Rapanos v. United States &

Carabell v. United States (Dec. 2, 2008)........... 14

Waters, Webster’s New International Dictionary (2d ed. 1954) ......................................... 17

IN THE

Supreme Court of the United States

_________

No. 21-454

_________

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 THE AMERICAN PETROLEUM

INSTITUTE, THE ASSOCIATION OF OIL PIPE

LINES, AND THE AMERICAN GAS ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

_________

STATEMENT OF INTEREST

The American Petroleum Institute (API), the Association of Oil Pipe Lines (AOPL), and the American

Gas Association (AGA) submit this brief as amici curiae in support of Petitioners.1

1

No party or counsel for a party authored this brief in whole or

in part. No party, counsel for a party, or person other than amici

curiae or their counsel made any monetary contribution intended

to fund the preparation or submission of this brief. Petitioners

have consented to the filing of this brief, and Respondents have

filed a blanket consent with the Clerk.

(1)

2

API is a national trade association that represents

nearly 600 members involved in the oil and natural

gas industry. API’s members include corporations

that produce, process, store, transport, and market oil

and natural gas products, as well as companies that

support the oil and natural gas sector. With over 30

active chapters in 12 states, API harnesses its members’ expertise to research and advocate for economically-efficient and environmentally-sound approaches

to the production and supply of energy resources.

AOPL is a nonprofit national trade association that

represents the interests of liquid pipeline owners and

operators. Together, AOPL’s members operate pipelines carrying nearly 97 percent of the crude oil and

petroleum products moved by pipeline throughout the

United States, extending over 225,000 miles in total

length. AOPL frequently engages with federal regulators and legislators to facilitate environmentally-responsible, safe, and cost-effective pipeline policies.

AGA is a national trade association that represents

over 200 energy companies involved in the natural gas

industry. AGA’s members advocate for the safe, reliable, and environmentally-responsible delivery of natural gas across the country. AGA works closely with

federal agencies to craft policies and regulations that

protect the environment and account for the special

needs of the natural gas industry.

Amici’s members have a deep interest in the outcome of this case. As entities that conduct operations

on property potentially subject to the Clean Water

Act’s requirements, amici’s members understand the

complexities of determining whether federal jurisdiction attaches to a particular piece of property and the

profound consequences that follow. Amici are also

3

intimately familiar with the regulatory and legal issues at the heart of this case. For years, amici have

worked with federal regulators to develop administrable standards under the Clean Water Act, submitting

comments in response to proposed definitions of “waters of the United States” by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

In addition, amici have filed briefs in prior court cases

involving the Clean Water Act, shedding light on the

proper scope of federal jurisdiction under the statute

and detailing the real-world impacts of jurisdictional

determinations. Amici write to offer that same insight

here.

SUMMARY OF ARGUMENT

This case concerns a question that has vexed federal

agencies and courts for decades: When does a patch

of wet ground constitute “waters of the United States”

and what legal standard should be used to decide?

The Clean Water Act grants the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of

Engineers (“the Corps”) limited regulatory authority

over “navigable waters,” which Congress defined as

“waters of the United States, including the territorial

seas.” 33 U.S.C. § 1362(7). Congress did not further

delineate the meaning of “waters of the United

States,” but rather left it to EPA and the Corps to define.

In the early 1980s, EPA and the Corps converged on

a common definition. Under it, “waters of the United

States” included, but were not limited to, traditional

navigable waters and their tributaries, interstate waters and wetlands, and wetlands adjacent to such waters and their tributaries. See Consolidated Permit

Regulations, 45 Fed. Reg. 33,290, 33,424 (May 19,

4

1980) (EPA’s definition); Interim Final Rule for Regulatory Programs of the Corps of Engineers, 47 Fed.

Reg. 31,794, 31,810-11 (July 22, 1982) (the Corps’ definition). Although that core definition has remained

largely consistent over the years, the agencies have

repeatedly struggled to clarify its scope. The agencies

have defined—and in some cases redefined—the

meaning of “wetlands,” “tributaries,” and “adjacent.”

They have also attempted to create workable standards to help guide their assertion of federal jurisdiction in individual cases. But at every step of the way,

the agencies, courts, and regulated parties have become embroiled in disputes over the Clean Water Act’s

limits. And despite decades of litigation and rulemaking, the extent of federal authority under the Act is

anything but clear.

That lack of clarity is particularly apparent in the

case of wetlands. As the law currently stands, there

is no one rule for determining whether a wetland falls

within the Clean Water Act’s reach. Some courts apply the significant-nexus test from Justice Kennedy’s

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

(2006), while others apply the significant-nexus test

and the bright-line rule set out by the Rapanos plurality. EPA and the Corps, for their part, have incorporated one or both of these tests in four different ways

over the past 14 years. But neither the courts nor the

agencies have sufficiently clarified what a significant

nexus means.

The absence of a clear rule as to what lands are in

and what lands are out is not just a good-governance

problem. It is detrimental to the Clean Water Act’s

success. In order to protect “waters of the United

States,” the statute requires regulated parties to

5

obtain a permit before engaging in certain activities

on covered property—and imposes severe civil and

criminal penalties for a party’s failure to do so. If regulated parties lack adequate notice that their property is subject to the Act, they run the risk of damaging protected waters and exposing themselves to crippling liability in the process.

The Clean Water Act also depends on a clear division of regulatory authority between the federal government and the States. Under the Clean Water Act,

the States retain primary responsibility over land and

water resources, and EPA and the Corps’ jurisdiction

is limited to waters that come within the meaning of

“waters of the United States.” But the more ambiguous that definition is, the less of a limitation it becomes.

The uncertainty over the Clean Water Act’s reach

has persisted for far too long. And the consequences

of perpetuating that uncertainty are far too serious.

The plurality’s test in Rapanos provides the clarity

that EPA, the Corps, courts, and regulated entities

need. The Court should adopt that test once and for

all.

ARGUMENT

I. CLEAR JURISDICTIONAL RULES ARE

NECESSARY TO ACHIEVE THE CLEAN

WATER ACT’S CORE OBJECTIVES.

In enacting the Clean Water Act, Congress sought to

achieve two primary goals: restore and protect the

country’s waters, and preserve States’ traditional

power to regulate water and land use within their borders. See 33 U.S.C. § 1251(a)-(b); Rapanos, 547 U.S.

at 722-723 (plurality opinion).

To protect the

6

country’s water, Congress prohibited the discharge of

pollutants into “navigable waters” without a permit

from EPA or the Corps. See 33 U.S.C. § 1342(a) (authorizing EPA to issue permits for the discharge of

pollutants as a general matter); id. § 1344(a), (d) (requiring a permit from the Corps to discharge dredged

or fill material). To preserve the States’ traditional

powers, Congress left any water outside the Clean

Water Act’s purview to the States’ regulatory control

and provided financial and technical support to the

States to assist their own regulatory efforts. See, e.g.,

id. §§ 1251(b), 1255; County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1471-72 (2020) (explaining

that waters not covered by EPA and the Corps’ permitting authority were generally left to the States to

protect).

Taken together, these twin purposes form the backbone of the Clean Water Act’s statutory scheme. Clear

jurisdictional rules are necessary to give them both

their full effect.

1. When Congress enacted the Clean Water Act in

1972, it put in motion an ambitious strategy for curbing pollution of our nation’s waters. Among the principal mechanisms for pollution control was a complex

permitting system, in which the Corps and EPA would

closely regulate the discharge of pollutants on property containing “waters of the United States.” These

permits are no small matter. They can be difficult to

obtain and the consequences of failing to acquire them

can be ruinous.

Applying for a permit is an onerous process: It can

take years to complete and it comes with a hefty price.

The average applicant for coverage under a general

permit spends “313 days and $28,915” completing the

7

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

578 U.S. 590, 595 (2016). And the average applicant

for an individual permit “spends 788 days and

$271,596” obtaining a permit. Id. at 594 (internal

quotation marks omitted).

These costs are further compounded by the agencies’

avoidance and mitigation requirements, which can require applicants to forgo development of a specific

area of property or redesign their entire project to

minimize potential adverse effects. See 40 C.F.R.

§ 230.10(a), (d). If the project requires National Environmental Policy Act or the Endangered Species Act

review, applicants must also engage in lengthy environmental review and consultation procedures. See,

e.g., 42 U.S.C. § 4332; 16 U.S.C. § 1536. Given the

difficulty of complying with this panoply of requirements, developers often end up abandoning their

plans in whole or in part, and the value of their regulated land may end up dropping. See Jason Scott

Johnston, Environmental Permits: Public Property

Rights in Private Lands and the Extraction and Redistribution of Private Wealth, 96 Notre Dame L. Rev.

1559, 1560-62 (2021).

If a regulated entity fails to comply with a permit’s

conditions—or fails to obtain one in the first place—

the Clean Water Act imposes substantial civil and

criminal penalties. Those penalties apply to both negligent and willful violations of the statute or conditions of a permit, and a party found liable can face

thousands of dollars in fines or even be jailed. See,

e.g., 33 U.S.C. § 1319; Sackett v. EPA, 566 U.S. 120,

132 (2012) (Alito, J., concurring) (highlighting the

“draconian penalties” that the Clean Water Act imposes).

8

These harsh features of the permitting system are

what make permits an effective regulatory tool: They

deter activities that can potentially lead to pollution

and ensure that regulated entities minimize environmental impacts. But in order for permits to accomplish these purposes, it is essential to have clear rules

for determining when permitting requirements apply.

Without a clear jurisdictional rule, regulated entities

may lack fair notice that their property is subject to

the Clean Water Act’s requirements. That lack of notice raises serious due-process questions because the

lack of predictable rules “invite[s] arbitrary enforcement.” See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204,

1223 (2018). It also makes it more difficult to prevent

pollution of navigable waters, which is the point of the

permitting process. If regulated parties do not know

their property is protected under the Clean Water Act,

they may start a project that is unknowingly subject

to EPA and the Corps’ oversight. But if the Clean Water Act’s scope is easily discernable, regulated parties

can apply for a permit and minimize adverse effects

from the outset.

2. Clear jurisdictional rules are also necessary to respect the Clean Water Act’s careful balance between

federal and state authority. As this Court has reiterated, “navigable waters” are the dividing line between

federal and state jurisdiction over water and land use.

See, e.g., Solid Waste Agency of N. Cook Cnty. v. U.S.

Army Corps of Eng’rs, 531 U.S. 159, 172-174 (2001)

(“SWANCC”). “Navigable waters”—that is, “waters of

the United States”—are subject to the agencies’ permitting requirements, while all other land and water

are left to the States to regulate. See Rapanos, 547

U.S. at 737 (plurality opinion) (emphasizing that Congress intended to “preserv[e] the primary rights and

9

responsibilities of the States” over water and land use,

not bring “virtually all planning of the development

and use of land and water resources by the States under federal control”) (cleaned up).

Accordingly, whenever EPA and the Corps define

“waters of the United States,” significant federalism

concerns are implicated. An overly broad interpretation of the term may expand federal jurisdiction beyond the Clean Water Act’s intended limits, encroaching upon the power that Congress expressly reserved

for the States. See SWANCC, 531 U.S. at 172-174 (rejecting the Corps’ application of permitting requirements to “nonnavigable, isolated, intrastate waters”

because asserting federal authority over such waters

“would result in a significant impingement of the

States’ traditional and primary power over land and

water use”).

In the absence of any clear demarcation between

federal and state authority, infringements upon

States’ traditional regulatory powers are all the more

likely to occur. When they do, States may have to wait

years for their authority to be restored while challenges to the agencies’ jurisdiction work their way

through the courts. See, e.g., Rapanos, 547 U.S. at

719-721 (plurality opinion) (describing a twelve-year

litigation process over the Corps’ assertion of federal

jurisdiction under the Clean Water Act). And given

the uncertainty over the extent of EPA and the Corps’

reach, States may have little incentive to develop and

implement regulatory programs to protect waters that

may—or may not—fall within the agencies’ purview.

A clear jurisdictional rule avoids these concerns and

preserves Congress’s carefully calibrated scheme.

When regulators can readily identify the scope of their

10

own authority, they can devote more time and energy

to environmental protection and less time litigating

what they are allowed to protect. Similarly, when

clear, predictable rules set the outer bounds of EPA

and the Corps’ power under the Clean Water Act,

States can confidently invest resources in protecting

their lands and waters, armed with the knowledge

that certain waterbodies will not become subject to the

agencies’ control.

In short, the Clean Water Act reflects a balance.

Federal authorities are charged with regulating the

discharge of pollutants into navigable waters through

stringent permitting requirements; state authorities

retain their traditional power over land and water

use. Certainty over the scope of federal jurisdiction

does more than make the Clean Water Act administrable; it makes the system work.

II. THE SCOPE OF FEDERAL JURISDICTION

OVER WETLANDS REMAINS UNSETTLED.

For more than a decade, courts, agencies, and regulated parties have tried to clarify the Clean Water

Act’s reach. But in spite of those efforts, the boundaries of federal jurisdiction have become more blurred

than clear. That is especially true for wetlands, which

have bedeviled courts and regulators for years.

This Court last addressed the scope of federal jurisdiction over wetlands in Rapanos v. United States.

See 547 U.S. at 729-730 (plurality opinion). Rapanos

concerned the Corps’ assertion of authority over wetlands located “near ditches or man-made drains that

eventually empty into traditional navigable waters.”

Id. at 729 (plurality opinion). The Court vacated the

lower court’s decision upholding the Corps’ jurisdictional determination. But a majority of the Court

11

could not agree on a framework to govern EPA and the

Corps’ jurisdiction.

A plurality of the Court turned to the dictionary definition of “waters” to conclude that federal permitting

jurisdiction extends only to “continuously present,

fixed bodies of water.” Id. at 733 (plurality opinion).

Against that backdrop, a wetland adjacent to a tributary leading to navigable water would be subject to

federal permitting jurisdiction if (1) “the adjacent

channel contains a ‘wate[r] of the United States,’ (i.e.,

a relatively permanent body of water connected to traditional interstate navigable waters);” and (2) “the

wetland has a continuous surface connection with

that water, making it difficult to determine where the

‘water’ ends and the ‘wetland’ begins.” Id. at 742 (plurality opinion).

Justice Kennedy proposed a different analytical approach. Under Justice Kennedy’s test, federal jurisdiction attaches so long as the waterbody in question

has a “ ‘significant nexus’ to waters that are or were

navigable in fact or that could reasonably be so made.”

Id. at 759 (Kennedy, J., concurring in the judgment).

To properly assert jurisdiction, EPA and the Corps

would need to “establish a significant nexus on a caseby-case basis.” Id. at 782 (Kennedy, J., concurring in

the judgment). And in the wetlands context, the “requisite nexus” would exist “if the wetlands, either alone

or in combination with similarly situated lands in the

region, significantly affect the chemical, physical, and

biological integrity of other covered waters more readily understood as ‘navigable’ ” under the Clean Water

Act. Id. at 780 (Kennedy, J., concurring in the judgment).

12

These tests are not just analytically different. They

can lead to results that are diametrically opposed. See

id. at 810 n.14 (Stevens, J., dissenting) (noting the

possibility for outcome-determinative differences between the two approaches). For that reason, courts

and regulators have struggled to determine what rule,

if any, Rapanos endorses. Those attempts have only

made the uncertainty over the scope of the Clean Water Act worse.

1. In the lower courts, the rule turns on where a suit

is brought. In the Seventh, Ninth, or Eleventh Circuits, Justice Kennedy’s significant-nexus test determines EPA and the Corps’ permitting jurisdiction.

See, e.g., United States v. Gerke Excavating, Inc., 464

F.3d 723, 725 (7th Cir. 2006) (per curiam); Northern

Cal. River Watch v. City of Healdsburg, 496 F.3d 993,

999-1000 (9th Cir. 2007); United States v. Robison,

505 F.3d 1208, 1222 (11th Cir. 2007). In the First,

Third, or Eighth Circuits, a court will uphold the

agencies’ assertion of federal jurisdiction over wetlands so long as their determination passes muster

under either the plurality or Justice Kennedy’s tests.

United States v. Johnson, 467 F.3d 56, 66 (1st Cir.

2006); United States v. Donovan, 661 F.3d 174, 184 (3d

Cir. 2011); United States v. Bailey, 571 F.3d 791, 799

(8th Cir. 2009). And some circuits will apply the test

the parties agree on, see, e.g., Precon Dev. Corp. v. U.S.

Army Corps of Eng’rs, 633 F.3d 278, 288 (4th Cir.

2011), while others will apply both tests just to be

safe, see, e.g., United States v. Cundiff, 555 F.3d 200,

210 (6th Cir. 2009); United States v. Lucas, 516 F.3d

316, 325-327 (5th Cir. 2008).

The pronounced uncertainty in the courts over the

scope of EPA and the Corps’ jurisdiction does not stop

13

there. For courts analyzing the agencies’ assertion of

authority under Justice Kennedy’s test, questions remain over how to best interpret the test and how to

apply it in a given case. Some courts have called attention to the test’s “broad” instructions that are

“open for considerable interpretation.” See Precon

Dev. Corp., 633 F.3d at 292. Others have lamented

the difficulty of discerning “exactly what is ‘significant’ ” and how “a ‘nexus’ [is] determined” under Justice Kennedy’s test. United States v. Chevron Pipe

Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006);

see also Johnson, 467 F.3d at 66 (Torruella, J., concurring in part and dissenting in part) (expressing doubt

that “Justice Kennedy’s seemingly opaque ‘significant

nexus’ test is a constitutional measure of federal regulatory jurisdiction”); see also Rapanos, 547 U.S. at

756 n.15 (plurality opinion) (describing Justice Kennedy’s test as “perfectly opaque”).

None of this is to relitigate the case for certiorari

that this Court has already granted. Rather, it shows

that if this Court kicks the can on giving the lower

courts a clear, administrable standard, then the circuits will fall into disarray once more, to the detriment

of all involved.

2. The agencies’ attempts to clarify the scope of federal jurisdiction over wetlands have only exacerbated

the problem. Over the last 14 years, EPA and the

Corps have proposed four different approaches to define “waters of the United States.” Yet at every turn,

the agencies have floundered in determining how to

account for Justice Kennedy’s significant-nexus test.

In a 2008 guidance document issued in Rapanos’s

wake, EPA and the Corps endorsed a jurisdictional

approach that explicitly incorporated aspects of both

14

the plurality’s and Justice Kennedy’s tests. See Revised Memorandum from Benjamin H. Grumbles, Assistant Administrator for Water, Env’t Prot. Agency,

& John Paul Woodley, Jr., Assistant Sec’y of the Army

(Civil Works), Dep’t of the Army, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United

States (Dec. 2, 2008). In the guidance, the agencies

divided “waters” into three different groups: those

that were categorically within EPA and the Corps’ jurisdiction under the Clean Water Act, those that could

fall within their jurisdiction on a case-by-case basis,

and those that were categorically excluded from their

jurisdiction. See id. at 1.

The first and third categories included phrases

pulled directly from the plurality’s approach: “[N]onnavigable tributaries of traditional navigable waters

that are relatively permanent” and “adjacent wetlands that have a continuous surface connection to

such tributaries” were included among the waters categorically within the agencies’ reach. Id. at 6. Ditches

that lacked a “relatively permanent flow of water”

were excluded. Id. at 1. The second category, meanwhile, expressly borrowed from Justice Kennedy’s

test. Waters in this category would be subject to federal jurisdiction if, “based on a fact-specific analysis,”

the agencies found “a significant nexus with a traditional navigable water.” Id.

This second category proved unruly at best. In EPA

and the Corps’ own words, the case-by-case “significant nexus” inquiry involved a “time and resource intensive process” that could “result in inconsistent interpretation[s] of [Clean Water Act] jurisdiction and

perpetuate ambiguity over where the [statute]

15

applies.” Clean Water Rule, 80 Fed. Reg. 37,054,

37,056 (June 29, 2015).

In a quest for a clearer rule, the agencies reformulated their jurisdictional approach in the Clean Water

Rule of 2015. The Clean Water Rule purported to

again incorporate both the plurality’s and Justice

Kennedy’s tests. See id. Yet in reality, the rule included little from the plurality’s approach—eschewing

the specific language it had previously adopted from

the plurality opinion—and asserted jurisdiction over

waters that would plainly be excluded under the plurality’s test. Compare, e.g., id. at 37,079 (extending

jurisdiction to ditches with intermittent flow), with

Rapanos, 547 U.S. at 739 (plurality opinion) (“The

phrase [‘waters of the United States’] does not include

channels through which water flows intermittently or

ephemerally.”).

At the same time, the Clean Water Rule applied Justice Kennedy’s opinion in a way that limited case-bycase determinations and provided a more administrable framework than the agencies’ 2008 Guidance.

Even then, EPA and the Corps’ interpretation of Justice Kennedy’s approach caused trouble. Lawsuits

across the country challenged the Clean Water Rule

for not aligning with Justice Kennedy’s opinion and

for misconstruing the significant-nexus test. See, e.g.,

In re EPA & Dep’t of Def. Final Rule, 803 F.3d 804,

807 (6th Cir. 2015); Georgia v. Wheeler, 418 F. Supp.

3d 1336, 1381-82 (S.D. Ga. 2019).

Returning to the drawing board, EPA and the Corps

repealed the Clean Water Rule and issued the Navigable Waters Protection Rule in 2020. See 85 Fed.

Reg. 22,250 (Apr. 21, 2020). This rule retreated from

Justice Kennedy’s significant-nexus test and largely

16

codified the plurality’s rule instead. Id. at 22,273.

This rule, too, was quickly challenged in court, on the

ground that the agencies had, among other things, improperly jettisoned the significant-nexus test and

failed to adequately account for their changed position. See, e.g., Complaint ¶¶ 68-69, Pascua Yaqui

Tribe v. U.S. EPA, No. 4:20-cv-00266-RM (D. Ariz.

June 22, 2020).

EPA and the Corps have now come full circle. In

December 2021, the agencies published a new proposed rule, incorporating principles from both Rapanos tests once again. See Revised Definition of “Waters of the United States,” 86 Fed. Reg. 69,372, 69,373

(Dec. 7, 2021). In this most recent iteration, the agencies have interpreted their jurisdiction under the

Clean Water Act to include wetlands adjacent to tributaries that satisfy either the “relatively permanent

standard” or the significant-nexus test. Id.

Like the other tests that have come before, the agencies’ new interpretation will pose legal and practical

challenges. For one, the Proposed Revision applies

the significant-nexus test to waters other than wetlands—a step beyond what Justice Kennedy’s opinion

contemplated and what EPA and the Corps have done

in the past. See id. at 69,440. For another, the agencies appear to have construed the significant-nexus

test in a way that allows for virtually limitless assertions of jurisdiction. For instance, the agencies envision analyzing the cumulative effects of a wide variety

of waterbodies within a broad geographic region. Id.

at 69,439-40. But the agencies’ determination of the

general number, type, and location of waterbodies to

include in that analysis relies on their subjective

views of what counts as significant—meaning that a

17

finding of significance is already baked into the analytical framework ostensibly used to determine

whether a significant nexus exists.

From the circuit split and regulatory whiplash, this

much is clear: the scope of federal jurisdiction over

wetlands is a moving target, and the significant-nexus

test creates more problems than it solves. The resulting uncertainty does a disservice to all parties involved. And it prevents the Clean Water Act from

achieving its laudable goals.

III. THE RAPANOS PLURALITY PROVIDES A

CLEAR, ADMINISTRABLE RULE.

To best carry out the Clean Water Act, regulated

parties, courts, and the federal government need clarity over what EPA and the Corps can and cannot regulate. The plurality opinion—standing alone—provides exactly that.

1. The plurality’s approach is at once easy to understand and easy to apply. It defines “waters of the

United States” based on the dictionary definition of

“waters.” See Rapanos, 547 U.S. at 732-733 (plurality

opinion). In so doing, the plurality aligns with “the

commonsense understanding of the term.” Id. at 734

(plurality opinion). Accordingly, under the plurality’s

approach, “waters of the United States”—and therefore federal jurisdiction under the Clean Water Act—

has the meaning that one would expect: “[R]elatively

permanent, standing or continuously flowing bodies of

water ‘forming geographic features’ that are described

in ordinary parlance as ‘streams[,] * * * oceans, rivers,

[and] lakes.’ ” Id. at 739 (plurality opinion) (quoting

Waters, Webster’s New International Dictionary 2882

(2d ed. 1954)).

18

The plurality’s approach not only establishes the

outer limits of federal jurisdiction under the Clean

Water Act, but also provides a bright-line test for determining whether a particular wetland comes within

EPA and the Corps’ reach. As a general matter, a wetland will be subject to federal jurisdiction if it has “a

continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” Id. at

742 (plurality opinion). A wetland adjacent to a tributary that empties into a traditional navigable water

will meet that definition if two requirements are met.

First, the “adjacent channel [must] contain[] a ‘wate[r]

of the United States.’ ” Id. Second, the wetland must

share “a continuous surface connection with that water, making it difficult to determine where the ‘water’

ends and the ‘wetland’ begins.” Id.

By drawing a clear line between jurisdictional and

non-jurisdictional waters, the plurality’s approach facilitates EPA and the Corps’ permitting process and

furthers environmental protection. With the plurality’s test as the governing law, landowners and developers can readily predict whether or not their wetland

is subject to federal permitting requirements: “Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ ”

are outside EPA and the Corps’ jurisdiction. Id. Wetlands that “possess[] a continuous surface connection”

to waters “containing a relatively permanent flow” are

within the agencies’ jurisdiction. Id. at 757 (plurality

opinion). This ability to anticipate the assertion of jurisdiction enables landowners and developers to take

the necessary precautions from the start and seek a

permit before any adverse environmental effects can

begin. See supra at 8. Moreover, by affording landowners and developers proper notice of their

19

obligations, the plurality’s approach reduces the

amount of agency resources spent defending jurisdictional determinations in court, allowing them to focus

their resources on crafting and enforcing permitting

conditions instead.

The plurality’s bright-line rule preserves the balance between federal and state jurisdiction as well.

By clearly delineating the difference between jurisdictional “waters,” land, and property where the boundary between the two is too difficult to discern, the plurality’s approach ensures federalism is a fundamental

feature of the test—not merely an aspirational goal or

theoretical concern. That close attention to federalism is by design. In rejecting the Corps’ assertion of

jurisdiction over wetlands adjacent to channels with

intermittent or ephemeral flow, the plurality highlighted the need for a clear division between regulation of “waters” and land. As the plurality saw it, the

more the property in question resembled land, the

greater the encroachment on States’ “quintessential”

authority to regulate land use. Rapanos, 547 U.S. at

738 (plurality opinion). And the more the agencies became “de facto regulator[s] of immense stretches of intrastate land,” the farther away the agencies strayed

from Congress’s stated intent. Id. The plurality

therefore adopted a jurisdictional test that would

guard against such concerns, defining “waters” and

wetlands inextricably bound up with “waters” in unambiguous terms.

Those definitions provide the necessary clarity to enable federal and state authorities to understand and

police the boundaries of their respective powers. Indeed, as four members of this Court previously recognized, they are the “only” definitions “consistent with”

20

the Clean Water Act’s “stated policy” of respecting and

protecting States’ traditional power over land and water resources. Id. at 737 (plurality opinion) (emphasis

added) (internal quotation marks omitted).

In sum, the plurality’s test provides precisely what

the Clean Water Act requires: a clear, administrable

framework that fosters environmental protection and

honors established parameters of federal and state

authority.

2. To bring the necessary clarity to the current morass, this Court should adopt the plurality’s test as the

governing jurisdictional rule and reject the significant-nexus standard. Two major reasons counsel in

favor.

First, far from promoting the Clean Water Act’s objectives, the significant-nexus test has hindered them.

The test’s case-by-case determinations have deprived

regulated parties of the notice they are due, thereby

limiting the extent to which they can proactively comply with the Act. See, e.g., Jonathan H. Adler, Wetlands, Property Rights, and the Due Process Deficit in

Environmental Law, Cato Sup. Ct. Rev. 139, 161

(2012); Sackett, 566 U.S. at 132 (Alito, J., concurring)

(emphasizing due-process concerns arising from caseby-case determinations). Its ambiguous terms have

proven difficult to interpret and apply, by lower courts

and EPA and the Corps alike. See, e.g., Chevron Pipe

Line, 437 F. Supp. 2d at 613; Clean Water Rule, 80

Fed. Reg. at 37,056. And it lacks the requisite safeguards to preserve the federal-state balance that Congress so carefully struck. See Rapanos, 547 U.S. at

756 (plurality opinion) (noting that the significantnexus test “takes no account” of the Clean Water Act’s

preservation of States’ traditional authority); id. at

21

782 (Kennedy, J., concurring in the judgment) (appearing to acknowledge that in at least some cases involving the regulation of wetlands adjacent to tributaries, the significant-nexus test could create federalism concerns).

Second, even if the significant-nexus test offered a

clear, administrable rule, this Court should not endorse the “either-or” approach that lower courts and

the agencies have proposed. In crafting their respective tests, the plurality and Justice Kennedy intended

to impose a constraint on EPA and the Corps’ reach—

preventing the limitless interpretations of federal jurisdiction that the agencies had promoted in the past.

See, e.g., id. at 731-734 (plurality opinion); id. at 779781 (Kennedy, J., concurring in the judgment). Allowing EPA and the Corps to assert jurisdiction under

one or both tests would undo the very limitation that

each opinion intended to set. Wetlands that one test

sought to exclude from the Clean Water Act’s reach

could fall under federal jurisdiction under the other.

That outcome makes little sense as a legal or practical

matter.

***

As this Court has long acknowledged, the Clean Water Act’s scope is maddeningly unclear. See, e.g.,

Hawkes, 578 U.S. at 594; Sackett, 566 U.S. at 132

(Alito, J., concurring). Over 15 years ago, a plurality

of this Court provided a clear and administrable rule

to resolve that jurisdictional ambiguity. That rule

should now command a majority.

22

CONCLUSION

For the foregoing reasons and those in Petitioners’

brief, the judgment of the Ninth Circuit should be reversed.

Respectfully submitted,

MARA E. ZIMMERMAN

MEREDITH B. CODY

AMERICAN PETROLEUM

INSTITUTE

200 Massachusetts Ave.,

N.W.

Washington, D.C. 20001

(202) 682-8000

CATHERINE E. STETSON

Counsel of Record

SEAN MAROTTA

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

Counsel for American

Petroleum Institute

Counsel for Amici Curiae

STEVEN M. KRAMER

ASSOCIATION OF OIL

PIPE LINES

900 17th Street, N.W.,

Suite 600

Washington, D.C.

20006

(202) 408-7970

TIMOTHY PARR

PAMELA LACEY

AMERICAN GAS ASSOCIATION

400 N. Capitol Street, N.W.

Washington, D.C. 20001

(202) 824-7000

Counsel for Association

of Oil Pipe Lines

APRIL 2022

cate.stetson@hoganlovells.com

Counsel for American

Gas Association