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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF FREEPORT-MCMORAN INC.

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JEREMY C. MARWELL

Counsel of Record

BENJAMIN S. LIPPARD

MARGARET PELOSO

JAMES T. DAWSON

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jmarwell@velaw.com

TABLE OF CONTENTS

Page

Table of Authorities .................................................... II

Interest of Amicus Curiae ….……. .............................. 1

Introduction and Summary of Argument ................... 5

Argument ..................................................................... 9

I.

This Court Should Restore Statutory and

Constitutional Limits on the Scope of Clean

Water Act Jurisdiction. ......................................... 9

II. A Decision Here Could Affect the Scope of

Clean Water Act Jurisdiction in Numerous

Other Contexts, Including in the Arid

Southwest. ........................................................... 14

III. Any Durable and Defensible Interpretation of

“Waters of the United States” Should

Recognize that Certain Features, Including

Arid Ephemeral Drainages, Are Unlikely to Be

Subject to Federal Jurisdiction. .......................... 20

Conclusion .................................................................. 26

(I)

II

TABLE OF AUTHORITIES

Cases:

Page(s)

Rapanos v. United States,

547 U.S. 715 (2006) ...................................... 3, 16, 18

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

Army Corps of Eng’rs, 531 U.S. 159 (2001) ........... 16

The Daniel Ball,

77 U.S. 557 (1870) .................................................. 14

Statutes:

33 U.S.C. § 1251........................................................... 1

33 U.S.C. § 1313(c) ....................................................... 1

33 U.S.C. § 1313(d) ...................................................... 1

33 U.S.C. § 1321........................................................... 1

33 U.S.C. § 1342........................................................... 1

33 U.S.C. § 1344........................................................... 1

33 U.S.C. § 1362(7) ...................................................... 2

Administrative Materials:

Clean Water Rule: Definition of “Waters of

the United States,” 80 Fed. Reg. 37,053

(June 29, 2015) ............................................. 2, 10, 16

Definition of “Waters of the United States”—

Recodification of Pre-Existing Rules,

84 Fed. Reg. 56,626 (Oct. 22, 2019) ......................... 2

Navigable Waters Protection Rule:

Definition of “Waters of the United States,”

85 Fed. Reg. 22,250 (Apr. 21, 2020)......................... 2

Revised Definition of “Waters of the

United States,” 86 Fed. Reg. 69,372

(Dec. 7, 2021) .................................... 3, 16, 19, 23, 24

III

Other Authorities:

Page(s)

Climate in Bonner County, Idaho, Sperling’s

Best Places, https://bit.ly/3O9Ao0O ...................... 15

Comments of Freeport-McMoRan Inc., Docket

ID EPA-HQ-OW-2011-0880-14135 (filed Nov.

12, 2014), https://bit.ly/2LBYLJ3) ......................... 10

Comments of Freeport-McMoRan, Inc., Docket

ID EPA-HQ-OW-2018-0149-8958 (filed Apr.

15, 2019), http://bit.ly/3r77DGz ......................... 4, 12

Comments of Freeport-McMoRan, Inc., Docket

ID EPA-HQ-OW-2021-0602-0597 (filed Feb. 7,

2022), https://bit.ly/3vfc5pG............................... 4, 25

Comments of the Arizona Mining Association,

Docket ID EPA-HQ-OW-2011-0880 (filed Nov.

12, 2014), https://bit.ly/3JG3IJ2 .............................. 4

Comments of the Arizona Mining Association,

Docket ID EPA-HQ-OW-2021-0602 (filed Feb.

7, 2022), https://bit.ly/37TstEa .............................. 25

Doyle, Martin W. & Jason P. Julian, Assessing

Potential Waters of the U.S. and Connectivity

in Arid Regions – Technical Comments on the

Applicability of the Clean Water Rule on

Jurisdictional Waters Determination in Arid

Landscapes (Apr. 12, 2019) .............. 4, 12, 21, 22, 23

Doyle, Martin W. & Jason P. Julian, Technical

Comments on the Applicability of the Proposed

Rule of Jurisdictional Waters Determination

in Arid Landscapes (2014) ................................. 4, 24

IV

Other Authorities—Continued:

Page(s)

Julian, Jason P., Significant Nexus of

Ephemeral Streams to Foundational Waters

in the Arid Southwestern United States –

Technical Comments on the Applicability

of the 2021 Revised Definition of “Waters

of the United States” in Arid Landscapes

(Feb. 5, 2022) ...................................................... 4, 21

Letter from William E. Cobb, Vice President,

Freeport-McMoRan Copper & Gold, to Jim

Laity, White House Off. Mgmt. & Budget

(Feb. 12, 2014) ........................................................ 10

Natural Resources Component Bonner County

Comprehensive Plan, Bonner Cty. Planning

Dep’t (May 2003), https://bit.ly/3jCah4U .............. 15

Parkhurst, Benjamin R., Comments on U.S.

Environmental Protection Agency’s (2013)

Draft Report “Connectivity of Streams and

Wetlands to Downstream Waters: A

Review and Synthesis of the Scientific

Evidence” (Nov. 5, 2013) .................................... 4, 24

INTEREST OF AMICUS CURIAE 1

Freeport-McMoRan Inc. (“Freeport”) is a leading

international mining company headquartered in Phoenix, Arizona. Freeport is the parent company of subsidiaries that operate large, long-lived, and geographically diverse assets with significant proven and probable reserves of copper, gold, and molybdenum. Freeport subsidiaries own and operate copper mining operations in arid regions of Arizona and New Mexico, and

molybdenum mines in Colorado.

Freeport has a direct and substantial interest in

the scope of federal jurisdiction under the Clean Water

Act (“CWA”), 33 U.S.C. § 1251 et seq., and in particular how the CWA applies in arid regions in the southwestern United States. Freeport’s mining operations

are subject to multiple regulatory programs under the

Clean Water Act, including the National Pollutant

Discharge Elimination System permit program under

CWA § 402, the discharge permitting program for

dredged and fill material in CWA § 404, the Spill Prevention Control and Countermeasures program under

CWA § 311, surface water quality standards under

CWA § 303(c), and the impaired waters program in

CWA § 303(d), among others. The ongoing lack of clarity concerning the extent of federal jurisdiction under

the Clean Water Act has introduced significant uncertainties, delay, and costs into various permitting processes for Freeport’s operations.

1 No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amicus curiae and its

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief. Pursuant to Supreme

Court Rule 37.3, this brief has been filed with the written consent

of all parties.

(1)

2

For more than a decade, Freeport has participated

actively in informal and formal federal administrative

processes regarding the meaning of the phrase “waters

of the United States” as used in the Clean Water Act.

See 33 U.S.C. § 1362(7). One of Freeport’s key goals

has been to support the investigation of the unique hydrology of water systems in arid desert regions of the

southwestern United States where Freeport operates.

Those regions are under-studied as compared to more

humid and water-rich environments prevalent in

other parts of the United States. Freeport has also

sought to ensure that efforts to regulate desert environments under the Clean Water Act are consistent

with science and the law, including constitutional and

statutory limitations on the scope of federal jurisdiction.

Over the course of the last decade, the Environmental Protection Agency (“EPA”) and the U.S. Army

Corps of Engineers (“Corps,” and, together with EPA,

the “Agencies”) have promulgated several rules concerning the scope of federal jurisdiction under the

Clean Water Act. The Obama Administration’s Clean

Water Rule was finalized in June 2015 (“2015 Rule”),2

but was subsequently repealed in October 20193 and

then replaced with the Trump Administration’s Navigable Waters Protection Rule in April 2020 (“2020

Rule”).4 In December 2021, the Biden Administration

2 Clean Water Rule: Definition of “Waters of the United States,”

80 Fed. Reg. 37,053 (June 29, 2015).

3 Definition of “Waters of the United States”—Recodification of

Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019).

4 Navigable Waters Protection Rule: Definition of “Waters of the

United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020).

3

published a proposed rule that would again redefine

the scope of the waters protected by the Clean Water

Act (“2021 Proposed Rule”).5

The past several rulemaking efforts have reflected

a range of interpretative and analytic approaches to

defining “waters of the United States,” drawing on the

various opinions from Rapanos v. United States, 547

U.S. 715 (2006). The Obama Administration’s 2015

rulemaking, for instance, gave heavy weight to Justice

Kennedy’s “significant nexus” framework. The 2015

Rule sought to justify expansive assertions of federal

jurisdiction based on a concept of “connectivity” between certain kinds of upstream and uplands features

(considered individually and in the aggregate) and

downstream navigable waters. The 2020 Rule took a

narrower approach that focused on the statutory text,

as informed by (among other things) the Rapanos plurality. The 2021 Proposed Rule again takes an expansive approach to the concept of “connectivity”; among

other things, it would find a “significant nexus” whenever an upstream feature has anything more than an

insubstantial or insignificant effect on downstream

waters.

While recent rulemakings have taken different analytical approaches to defining “waters of the United

States,” each rulemaking docket has included expert

reports authored by leading scientists studying the hydrology of watersheds in the arid Southwest (the

5 Revised Definition of “Waters of the United States,” 86 Fed.

Reg. 69,372 (Dec. 7, 2021).

4

“Technical Reports”). 6 These Technical Reports

demonstrate that the frequency, magnitude, and duration of flows in ephemeral features in the arid

Southwest do not generally provide the kind of hydrologic “connectivity” to downstream traditional navigable waters as do channels elsewhere in the country,

and thus do not have the same effects on downstream

jurisdictional waters. To the contrary, the Technical

Reports conclude that arid ephemeral drainages “are

unlikely to be hydrologically connected to downstream

Traditionally Navigable Waters.” 2019 Technical Report at 1.

6 See Comments of Freeport-McMoRan, Inc., Docket ID EPAHQ-OW-2021-0602-0597 (filed Feb. 7, 2022), https://bit.ly/

3vfc5pG (“2022 Freeport Comments”) (attaching Jason P. Julian,

Significant Nexus of Ephemeral Streams to Foundational Waters

in the Arid Southwestern United States – Technical Comments on

the Applicability of the 2021 Revised Definition of “Waters of the

United States” in Arid Landscapes (Feb. 5, 2022) (“2022 Technical

Report”)); Comments of Freeport-McMoRan, Inc., Docket ID

EPA-HQ-OW-2018-0149-8958 (filed Apr. 15, 2019), http://bit.ly/

3r77DGz (“2019 Freeport Comments”) (attaching Martin W.

Doyle & Jason P. Julian, Assessing Potential Waters of the U.S.

and Connectivity in Arid Regions – Technical Comments on the

Applicability of the Clean Water Rule on Jurisdictional Waters

Determination in Arid Landscapes (Apr. 12, 2019) (“2019

Technical Report”), and Martin W. Doyle & Jason P. Julian,

Technical Comments on the Applicability of the Proposed Rule of

Jurisdictional Waters Determination in Arid Landscapes (2014)

(“2014 Technical Report”)); Comments of the Arizona Mining

Ass’n, Docket ID EPA-HQ-OW-2011-0880 (filed Nov. 12, 2014),

https://bit.ly/3JG3IJ2 (attaching Benjamin R. Parkhurst, Comments on U.S. Environmental Protection Agency’s (2013) Draft

Report “Connectivity of Streams and Wetlands to Downstream

Waters: A Review and Synthesis of the Scientific Evidence” (Nov.

5, 2013) (“2013 Technical Report”)).

5

This case involves questions about the proper test

for when wetlands constitute “waters of the United

States.” But the Court’s resolution of that issue may

have implications for the scope of federal Clean Water

Act jurisdiction in other important contexts nationwide, including in the arid Southwest. This amicus

brief seeks to draw to the Court’s attention areas of

legal, conceptual, and analytical overlap between the

scope of jurisdiction over wetlands and the scope of

Clean Water Act jurisdiction in more arid environments. The brief identifies the serious concerns that

have arisen when the Agencies have used certain theories of federal jurisdiction—i.e., past efforts to interpret “waters of the United States”—to justify sweeping

assertions of federal authority over broad swaths of

bone-dry American desert. The brief also highlights

scientific evidence about the characteristics of the

kinds of ephemeral erosional features that represent

the vast majority of “streams” in the arid Southwest,

and explains that the Court should guard against the

possibility of future federal overreach in arid (and

other) environments, as it crafts a test in this case for

when wetlands constitute “waters of the United

States.”

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. Petitioners and their amici have vividly illustrated the range of legal, practical, and constitutional

concerns that have arisen from vague and overbroad

interpretations of “waters of the United States” in the

16 years since Rapanos. E.g., Pet’r Br. 5, 18-22. The

Sacketts here challenge EPA’s assertion of jurisdiction

over their residential building lot in Idaho. But the

history of the Agencies’ over-expansive approach to

6

Clean Water Act jurisdiction has hardly been limited

to wetlands. For example, the Agencies’ 2015 Rule categorically asserted jurisdiction over a vast array of

erosional desert features with physical indicators of a

bed, bank, and so-called “ordinary high water mark,”

even if water flowed across them only in response to a

decades-past precipitation event. That formulation in

turn led the Agencies to classify as “waters” a variety

of features that any ordinary person would regard as

dry land. A similar approach is reflected in the 2021

Proposed Rule, where the Agencies have suggested

that even isolation between waters can serve as evidence of supposed “connectivity,” thereby supporting

an assertion of jurisdiction.

2. This Court granted certiorari to address the

“proper test” for deciding when wetlands can constitute “waters of the United States.” But this Court’s

decision may have significant implications for Clean

Water Act jurisdiction in many other contexts, including over ephemeral features in America’s arid Southwest. Indeed, the evolution of the “significant nexus”

test—which was originally developed in a case about

ponds and mudflats, and then applied to wetlands, and

then applied to various other hydrological features—

demonstrates that whatever guidance this Court offers here will likely be interpreted to have applicability outside the specific context of wetlands. Moreover,

the history of expansive agency assertions of jurisdiction in the arid Southwest, and the legal theories on

which those assertions have rested, provide important

context for this Court’s interpretation of the Clean Water Act’s central jurisdictional term, “waters of the

United States.”

7

A textually sound and legally durable interpretation of “waters of the United States” should take into

account several foundational principles: First, different regions of the United States are characterized by

dramatic hydrological diversity, with more water-rich

areas presenting distinct practical, legal, interpretative, and regulatory challenges than those encountered in the desert Southwest. An enduring interpretation of “waters of the United States” should be sensitive to the range of contexts in which it will need to

apply. Second, the presence and contribution of actual

water flows is a critical consideration in drawing a

lawful and administrable line between non-jurisdictional upland and upstream features, and jurisdictional, downstream traditional navigable waters.

Third, regulated entities, States, and federal regulators all urgently need a clearer and more easily-administrable standard in this notoriously unsettled

area.

3. Given that the jurisdictional term “waters of the

United States” delineates Clean Water Act jurisdiction

across the entire country, the Court should be sensitive to the variety of different regions, including the

arid Southwest, that may be affected by the interpretation adopted in this case. With regard to the particular characteristics of arid regions, scientific literature confirms that ephemeral erosional features in the

arid Southwest are, as a general matter, unlikely to be

connected to traditional navigable waters in a manner

that would support the kinds of broad assertions of

federal jurisdiction seen in some recent rulemakings.

Water channels located in more water-rich environments tend to flow in predictable places for long

8

stretches of time. In contrast, desert erosional features often carry water only for short periods of time

in direct response to infrequent precipitation events,

and even then tend to follow variable paths due to the

erodibility and highly porous nature of desert soil. Because water flows in the arid Southwest are so often

discontinuous, ephemeral drainages in this region are

unlikely to be connected in a meaningful way—if at

all—to downstream waters. Moreover, arid ephemeral

features are characterized by either the absence of

flow (their normal condition) or “flashy” high flows (in

direct response to rain). These features therefore generally do not play a significant role in the kinds of

chemical and biological processes that affect the integrity of downstream waters, which depend on watermediated transformations that do not occur in flows of

this type.

Although this case does not involve agency attempts to regulate arid ephemeral features in the desert Southwest, the Court’s decision here will likely

play a critical role in restoring meaningful limits on

the scope of federal Clean Water Act jurisdiction nationwide, consistent with the plain language of the

statute and constitutional constraints. Whatever test

this Court adopts should account for, and avoid endorsing, the problematic, overly expansive legal theories on which the Agencies have relied in the past, including in seeking to justify sweeping assertions of

federal jurisdiction. Absent such care, the Agencies

may craft rules that allow for the overbroad conceptions of federal jurisdiction reflected in (among other

things) the 2015 Rule, which asserted Clean Water Act

jurisdiction over vast swaths of dry American desert,

including arid washes and erosional features that no

9

ordinary speaker of English would ever characterize

as “waters of the United States.”

ARGUMENT

I.

This Court Should Restore Statutory and

Constitutional Limits on the Scope of Clean

Water Act Jurisdiction.

As Petitioners and their other amici compellingly

demonstrate, the years following this Court’s decision

in Rapanos have been characterized not only by persistent ambiguity about the scope of federal jurisdiction, but also by expansive agency assertions of federal

regulatory authority. This case presents the Court

with an opportunity to provide much-needed clarity

about the statutory and constitutional limits on the

scope of the Clean Water Act, and to break the cycle of

agency rulemaking and litigation.

The facts of this case, involving an assertion of wetlands jurisdiction on a small residential lot near Priest

Lake, Idaho, illustrate how uncertainty in the lower

courts about the proper interpretation of Rapanos has

invited regulatory overreach. But the need for clarity

is by no means limited to the wetlands context. Of particular interest to Freeport is a history of expansive

assertions of federal jurisdiction in the desert Southwest, including under the 2015 Rule (which categorically asserted federal jurisdiction over vast swaths of

dry desert land) and under the most recent proposed

rule (which reflects an aggressive approach to concepts

of connectivity and aggregation).

Indeed, numerous examples illustrate how a lack

of clarity concerning the meaning of “waters of the

United States” has historically led to significant over-

10

reach in the arid Southwest. The Obama Administration’s 2015 Rule, for instance, categorically asserted

jurisdiction over “tributaries,” a term that rule defined

to include any land feature with physical indicators of

“a bed and banks and an ordinary high water mark”

that “contributes flow either directly or through another water” to a traditional navigable water, even if

that flow was ephemeral. 2015 Rule, 80 Fed. Reg. at

37,105-06. In practice, that sweeping assertion of jurisdiction over “tributaries” captured a wide variety of

geographic features not plausibly understood as “waters.” To take just a few examples, Figure 1 on the

following page of this brief depicts minor ephemeral

washes at the Hyder Valley Solar Project in Arizona

that the Agencies understood to exhibit high-water

mark features. 7 These features—which ordinary

speakers of English would characterize as dry desert

lands—would have been treated as “waters of the

United States” under the 2015 Rule.

7 See Letter from William E. Cobb, Vice President, FreeportMcMoRan Copper & Gold, to Jim Laity, White House Off. Mgmt.

& Budget, Attachment A at 3 (Feb. 12, 2014) (attached as

Comment C to Comments of Freeport-McMoRan Inc., Docket ID

EPA-HQ-OW-2011-0880-14135 (filed Nov. 12, 2014), https://

bit.ly/2LBYLJ3).

Figure 1

11

12

Similarly, the 2015 Rule would have asserted jurisdiction over other desert erosional features (such as

those depicted in Figure 2 of this brief), based on a rationale that it was possible to trace a path from those

features to a distant “study reach” of the Santa Cruz

River, that had itself been designated as a traditional

navigable water. See 2019 Freeport Comments at 6.

That portion of the Santa Cruz River itself experiences

“no flow” conditions an average of 326 days per year.

See 2019 Technical Report at 5–7 & tbl. 2; 2019 Freeport Comments at 4. Put differently, the 2015 Rule

sought to justify treating as “waters of the United

States” erosional features in dry desert land based on

a connection to a distant riverbed that itself had no

water nearly 90 percent of the time.

Figure 2

13

14

Even these few practical examples from the arid

Southwest help illustrate the dangers of accepting

some of the broader readings of “waters of the United

States” that the Agencies have advanced and adopted

in recent years.

II.

A Decision Here Could Affect the Scope of

Clean Water Act Jurisdiction in Numerous

Other Contexts, Including in the Arid

Southwest.

1. The question presented in this case concerns

“the proper test for determining whether wetlands are

‘waters of the United States.’ ” But this Court’s ruling

in the Sacketts’ case, and interpretation of the central

statutory term “waters of the United States,” could

have significant ramifications for other aspects of the

scope of Clean Water Act jurisdiction nationwide.

The Sacketts’ case involves questions related to the

jurisdictional status of certain wetlands adjacent to a

tributary of Priest Lake in northwest Idaho.8 Priest

8 During the proceedings below, the parties both took the

position that Priest Lake is a “traditionally navigable waterway.”

Cf. Idaho Dist. Ct. Dkt. 08cv185, Doc.103-1, at 18-19; Idaho Dist.

Ct. Dkt. 08cv185, Doc. 105-1, at 18. This Court therefore need

not address the appropriate test for determining whether a

waterway is “traditionally navigable.” But to the extent this

Court reaches questions about the relationship between the

Clean Water Act and Congress’s authority to regulate navigable

waters and the channels of interstate commerce, see Pet’r Br. 2942, it should recognize that prior guidance from the Agencies and

some lower courts have accepted an overly capacious

understanding of that term. See The Daniel Ball, 77 U.S. 557,

563 (1870) (defining “navigable waters of the United States” to

mean only those navigable-in-fact waters that “form in their

ordinary condition by themselves, or by uniting with other

15

Lake is situated in Bonner County, where annual total

precipitation is above the national average.9 Nearly

ten percent of Bonner County is covered by surface water, including the two largest lakes in Idaho, four major rivers, and numerous wetlands.10 In interpreting

the term “waters of the United States” in this case, the

Court should remain cognizant that the need for

greater clarity, and for clearer outer bounds on federal

jurisdiction, is not limited to parts of America that are

hydrologically similar to Bonner County. That need is

equally pressing in large portions of the desert arid

Southwest (where amicus operates its business) characterized by the absence of water—and where ephemeral drainages and other similar erosional features

constitute 89% of all “streams.”

In this case, the Ninth Circuit held that the “significant nexus” test from Justice Kennedy’s concurrence

in Rapanos “provide[d] the governing standard for determining when wetlands are regulable under the

[Clean Water Act].” Pet. App. A-26. This Court

granted certiorari to review whether the Ninth Circuit

applied the “proper test.” In answering that question,

the Court may unavoidably address (or be understood

as addressing) the standard for Clean Water Act jurisdiction not only over wetlands, but also more broadly.

waters, a continued highway over which commerce is or may be

carried”).

9 See Climate in Bonner County, Idaho, Sperling’s Best Places,

https://bit.ly/3O9Ao0O (last visited Apr. 13, 2022).

10 See Natural Resources Component Bonner County Compre-

hensive Plan, at 1-2, Bonner Cty. Planning Dep’t (May 2003),

https://bit.ly/3jCah4U.

16

In the years since Rapanos, some courts (like the

Ninth Circuit in this case) have adopted and attempted to apply Justice Kennedy’s “significant

nexus” standard. In practice, the application of that

test has not been limited to wetlands. On the contrary,

the Agencies have applied the “significant nexus” test

when describing the jurisdictional status of streams

and tributaries. For example, the 2021 Proposed Rule

suggests that “ephemeral streams that meet the significant nexus standard [will] be jurisdictional as tributaries.” 86 Fed. Reg. at 69,385. And the Obama Administration’s 2015 Rule took the position that Justice

Kennedy’s “significant nexus” test was an “analytical

framework” not “limited to adjacent wetlands,” and

then concluded that ephemeral streams are jurisdictional tributaries because they purportedly have a

“significant nexus” to traditional navigable waters.

2015 Rule, 80 Fed. Reg. at 37,058, 37,061.

The “significant nexus” standard was first mentioned in a case about ponds and mudflats. See Solid

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

Eng’rs, 531 U.S. 159, 167 (2001) (“SWANCC”). That

standard was then further developed in a case about

wetland parcels. See Rapanos, 547 U.S. at 767-768

(Kennedy, J., concurring). The “significant nexus” test

then morphed (through caselaw and the Agencies’

rulemakings) into something akin to a one-size-fits-all

standard that, at least according to some, justifies federal regulation of a multitude of hydrological features

that bear little resemblance to any of the waterbodies

at issue in SWANCC or Rapanos. The quick and dramatic evolution of the “significant nexus” test underscores the reality that whatever guidance this Court

17

provides in this case about the standard for determining federal jurisdiction under the Clean Water Act and

the meaning of the phrase “waters of the United

States” will likely carry significant weight outside the

specific context of wetlands.

2. As Petitioners and their other amici explain, the

tortured history of agency and judicial efforts to delineate Clean Water Act jurisdiction has been marked by

periods of significant overreach, notable litigation defeats, agency retrenchment, and ongoing uncertainty,

with a cycle of agency guidance, rulemaking, and litigation. In interpreting the scope of “waters of the

United States,” and giving force to the statute’s clearly

limiting terms, this Court should bear several interpretative principles in mind.

First, the Court should be sensitive to the reality

that the United States is not a hydrological monolith.

The Clean Water Act’s central jurisdictional term (“the

waters of the United States”) must be interpreted in a

manner that provides a lawful and administrable rule

across a diversity of geographic contexts. With respect

to federal jurisdiction over upstream tributaries to

navigable waters, for instance, the scientific record

(developed at the Agencies across numerous recent

rulemakings) is clear that different regions may have

tributaries and streams that affect downstream navigable waters to greatly varying degrees. This Court

should not interpret “waters of the United States” in a

manner that could support future broad assertions of

federal jurisdiction over “tributaries” that fail to account for important regional and scientific differences.

For example, scientific studies of ephemeral drainages and tributaries in the arid Southwest, included in

18

recent rulemaking proceedings before the Agencies,

show that such features do not have the same level of

hydrologic connectivity to downstream traditional

navigable waters as do tributaries in more water-rich

areas of the country. Justice Scalia’s plurality opinion

in Rapanos, in construing the phrase “waters of the

United States,” appropriately accounted for the actual

contribution of water flow (or lack thereof) to downstream navigable waters, in setting boundaries on the

scope of federal jurisdiction. See Rapanos, 547 U.S. at

733 (Scalia, J.) (reading statutory term “waters” to exclude “ordinarily dry channels through which water”

only “occasionally” flows); accord id. at 732-735, 745746. The Court should not adopt, or inadvertently endorse, a reading of “waters of the United States” that

would justify expanding federal jurisdiction over bonedry ephemeral washes in the American desert, based

on an atextual concept of “connectivity” with, or effects

on, downstream navigable waters.

Second, this Court should honor the Clean Water

Act’s limiting statutory terms, which plainly “do[] not

authorize [a] ‘Land is Waters’ approach.” Rapanos,

547 U.S. at 734 (Scalia, J.); accord id. at 733-734

(treating “dry arroyos in the middle of the desert” as

jurisdictional “waters” stretches the statutory language “beyond parody”). In interpreting “waters of the

United States,” this Court should recognize that the

presence and amount of actual water flows is an important measure of the connection between non-“water” features (whether wetlands, arid ephemeral

washes, or a range of other potential features) and the

traditional navigable waters at the center of Clean

Water Act jurisdiction.

19

Third, the Court should be sensitive to the need of

regulated parties and regulators alike for a clear and

administrable standard that can provide guidance to

landowners and serve as a workable tool by which the

Agencies can determine the outer boundaries of their

jurisdiction. Justice Kennedy’s “significant nexus”

standard from Rapanos—especially the expansive conception of that test developed and applied by the Agencies over the past 16 years—fails to satisfy that basic

criterion. That standard is untethered from the text

of the Clean Water Act, and inconsistent with both

precedent and the fundamental principles outlined

above. To take just one example, the current Administration understands a “significant nexus” to be present anytime an alleged connection to downstream

navigable waters is something “more than speculative” or is not “insubstantial.” See 2021 Proposed

Rule, 86 Fed. Reg. at 69,430-32, 69,449-50. That framing turns the interpretative inquiry upside down, and

eliminates any meaningful boundary on federal jurisdiction.

While statutory text, context, purpose, and history

should of course drive the interpretative inquiry, a durable interpretation of “waters of the United States”

also must not generate implausible or unworkable

practical outcomes, when applied across the diverse

range of hydrological conditions in the United States

today. To that end, the arid Southwest provides a useful practical indicator—a kind of litmus test—for

whether a proposed reading is lawful and workable.

In particular, with regard to arid erosional features

and other desert drainages—such as are found

throughout the southwestern United States, and that

flow only infrequently, in response to large and rare

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precipitation events—the Act should not be read to

support a categorical assertion of federal jurisdiction,

absent evidence of actual water flows of a sufficient

frequency, duration, and volume. Yet some of the legal

standards adopted by the Agencies in past rulemakings—and likely to be raised again in this Court—

would have achieved precisely that implausible outcome.

III. Any Durable and Defensible Interpretation

of “Waters of the United States” Should

Recognize that Certain Features, Including

Arid Ephemeral Drainages, Are Unlikely to

Be Subject to Federal Jurisdiction.

In interpreting the statutory phrase “waters of the

United States,” this Court will, of course, be guided by

statutory text, context, purpose, and history, as well

as constitutional considerations related to the appropriate role of the federal government. But the Court

should also be conscious of the practical effects that a

particular interpretative approach might have for the

overall scope of federal jurisdiction.

Characteristics of water flows in the arid Southwest are a useful metric in assessing the durability

and legality of a particular interpretation of “waters of

the United States.” If a particular interpretative theory or concept results, as a practical matter, in sweeping assertions of federal jurisdiction over broad swaths

of dry desert land as “waters of the United States,”

something has gone obviously awry.

Many prior efforts to delineate the scope of Clean

Water Act jurisdiction in the arid Southwest have resulted in vastly overbroad assertions of federal jurisdiction, based not only on flawed readings of “waters

21

of the United States,” but also on a fundamental misunderstanding about the unique ecosystems of that

area. The dockets from the Agencies’ recent rulemakings—including the docket for the 2021 Proposed

Rule—have included expert reports which address the

behavior of ephemeral washes and other desert erosional features. These Technical Reports demonstrate

that the frequency, magnitude, and duration of flows

in ephemeral features in the arid Southwest do not

generally provide the kind of hydrologic “connectivity”

to downstream traditional navigable waters as do comparable channels elsewhere in the country, and thus

do not have the same effects on downstream jurisdictional waters. To the contrary, the Technical Reports

conclude that arid ephemeral drainages “are unlikely

to be hydrologically connected to downstream Traditionally Navigable Waters.” 2019 Technical Report at

1; see 2022 Technical Report at 2-4 (similar). As this

Court considers the proper test for determining Clean

Water Act jurisdiction over wetlands, it should bear

these underlying scientific principles in mind, and

avoid establishing a legal test or endorsing an analytical approach that would—as have several of the Agencies’ recent rulemaking efforts—lead to regulating dry

desert lands as federal “waters.”

Within the diversity of climates and ecosystems

represented in the United States, the arid Southwest

is a unique environment in which erosional drainage

systems and surface features cannot be equated with

“streams” and “tributaries” in more humid climates.

In more humid environments like those found elsewhere in the United States, surface water channels,

including intermittent features, are generally fed by

the intersection of the surface and the “groundwater

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table” (i.e., the underground boundary between the

soil surface and the belowground area where soil or

rocks are permanently saturated with water). See

2019 Technical Report at 2. In contrast, physical

channels in the arid Southwest often are mere “relics”

on the highly erodible, sandy landscape and were

“formed by a historic, infrequent event.” 2014 Technical Report at 7. Further, in the arid Southwest,

“many rivers can be sourced solely by overland flow”

because the groundwater table is far below the surface

and rarely intersects with surface water. See 2019

Technical Report at 2 (emphasis added). Given that

“runoff is the sole source of water” for ephemeral

drainages in the arid Southwest, such features often

“only flow over short lengths during precipitation

events.” Ibid. The dependency of water flows on precipitation, in combination with highly porous runoff

pathways that lose flow quickly, “results in high temporal and spatial variability” in ephemeral features.

Ibid. (emphasis omitted). This variability in the time

and location of flows in turn makes the arid Southwest

“fundamentally distinct” from more humid regions,

where channels typically flow in predictable places for

long periods of time. Ibid.

There is also a low degree of hydrologic connectivity between ephemeral drainage networks and traditional navigable waters in the arid Southwest. Even

in the aftermath of large rain events, channel flow in

arid environments can be discontinuous due to evaporation and water lost to the subsurface. See 2019

Technical Report at 9. For this reason, ephemeral features in the arid Southwest are unlikely to be connected to a watershed outlet. Id. at 10-11. Indeed,

with respect to some systems in the arid Southwest,

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“it is rare, or even unlikely that headwaters will be hydrologically connected at all to downstream waters.”

Id. at 8 (emphasis added). Outside the context of rare

events of sustained flooding, ephemeral features in the

arid Southwest will seldom be connected with the

broader watershed, and thus will have a limited effect

on downstream water quality.

To take just one example of why this Court should

articulate a concrete, administrable standard

grounded in the text of the Clean Water Act itself, the

Agencies’ 2021 Proposed Rule suggests that isolation

(i.e., a lack of connection between downstream waters

and a particular upstream feature) can support a finding of “connectivity” and thus justify asserting federal

jurisdiction. See 86 Fed. Reg. 69,437-38. This is supposedly because of factors such as “lag” and “transformation” that occur over a long time horizon. That approach is fundamentally unsound, and, if credited,

would lead to a virtually limitless concept of federal

jurisdiction, effectively transforming the Clean Water

Act’s limited statutory mandate into a general federal

land-use regulation.

Moreover, the administrative record developed by

the Agencies in several recent rulemaking efforts supports the conclusion that ephemeral features in the

arid Southwest do not typically play a major role in the

kinds of chemical transformations or biological processes that could alter water quality in downstream

traditional navigable waters. In the arid Southwest,

water and waterborne materials are mostly moved

during infrequent storm events rather than through

perennial flows. 2019 Technical Report at 11; see id.

at 8. Flows in this region are therefore either non-existent or very low (their normal condition) or very high

24

(their short-lived, “flashy” response to large storm

events); they seldom resemble the type of constant,

steady-flow conditions that are typical of channels in

the eastern United States. The opportunity for watermediated chemical transformations is limited when

flows are either too high or too low. 2014 Technical

Report at 3. Because ephemeral drainage features in

the arid Southwest are hardly ever in the range in

which water-mediated chemical transformations can

occur, the role of ephemeral features with respect to

such transformations will be negligible. 2019 Technical Report at 11. Ephemeral features also lack biological connections with downstream traditional navigable waters because they are typically dry, which results in the absence of aquatic life. See 2013 Technical

Report at 9, 11.

Some advocates of capacious Clean Water Act jurisdiction—including the Agencies in their most recently proposed rule—have suggested that, even if certain features (including ephemeral tributaries) individually lack connections to downstream waters, the

Clean Water Act nonetheless compels or permits the

Agencies to regulate all such features as a class—on a

watershed or even regional basis—because in aggregate they have significant effects on downstream waters. See, e.g., 2021 Proposed Rule, 86 Fed. Reg. at

69,431. It appears EPA relied on a related aggregation

theory to justify asserting jurisdiction over the small

amount of wetlands alleged to exist on the Sacketts’

land. See Pet’r Br. 4. The aggregation theory lacks a

foundation in the statutory text. Moreover, with regard to arid ephemeral features, the scientific record

25

does not support a finding even of collectively significant effects on water quality.11

This Court should not adopt or inadvertently lend

support to any reading of “waters of the United States”

that would justify asserting jurisdiction over a vast

number of features in the dry southwestern desert

that are not plausibly characterized as “waters of the

United States.”

11 See 2022 Freeport Comments at 24 (noting that it would be

“irrational * * * to conclude that a small isolated ephemeral tributary was jurisdictional merely because other larger ephemeral

tributaries in the same region do (individually or in the aggregate) significantly affect traditional navigable waters”);

Comments of the Arizona Mining Ass’n at 15-16, Docket ID EPAHQ-OW-2021-0602 (filed Feb. 7, 2022), https://bit.ly/37TstEa

(noting that it is neither workable nor legally sound to ”aggregat[e] * * * ephemeral drainages that are not similar in terms of

key hydrologic factors such as volume, duration, and frequency of

flow, proximity to the [traditional navigable waters], average

annual rainfall, historic record of water flow, etc.”).

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CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted.

JEREMY C. MARWELL

Counsel of Record

BENJAMIN S. LIPPARD

MARGARET PELOSO

JAMES T. DAWSON

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6500

jmarwell@velaw.com

Attorneys for Amicus Curiae

Freeport-McMoRan Inc.

APRIL 2022