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.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; MICHAEL S. REGAN, ADMINISTRATOR,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

AMERICAN EXPLORATION AND MINING

ASSOCIATION, NATIONAL MINING ASSOCIATION,

ALASKA MINERS ASSOCIATION, ARIZONA

MINING ASSOCIATION, IDAHO MINING

ASSOCIATION, INDUSTRIAL MINERALS

ASSOCIATION—NORTH AMERICA, MINING

MINNESOTA, MONTANA MINING ASSOCIATION,

NEVADA MINING ASSOCIATION, NEW MEXICO

MINING ASSOCIATION, UTAH MINING

ASSOCIATION, AND WYOMING MINING

ASSOCIATION IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------CHRISTOPHER D. THOMAS*

*Counsel of Record

ANDREA J. DRIGGS

PERKINS COIE LLP

2901 North Central Avenue, Suite 2000

Phoenix, AZ 85020

Telephone: (602) 351-8000

cthomas@perkinscoie.com

adriggs@perkinscoie.com

Counsel for Amici Curiae

April 18, 2022

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the Ninth Circuit set forth the proper

test for determining whether wetlands are “waters of

the United States” under the Clean Water Act, 33

U.S.C. § 1362(7).

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

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

ii

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

iv

INTERESTS OF AMICI CURIAE .......................

1

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

4

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

8

I.

The Mining Industry Needs Clarity and

Regulatory Certainty To Permit the Projects the Nation Needs ..............................

8

A. The Mining Industry Is Critically Important to the Nation’s Economy ........

8

B. Uncertainty Regarding the Scope of

WOTUS Impairs the Ability to Efficiently Permit Mining Projects ........... 11

II.

The Ninth Circuit Decision Exacerbated

This Regulatory Uncertainty and Should

Be Reversed ............................................... 17

A. The Ninth Circuit Incorrectly Held

That WOTUS Can Be Regulated Solely

Based on the “Significant Nexus” Test.... 17

B. The Plain Language of the CWA and

Congressional Intent Do Not Support

Regulating WOTUS Based on the “Significant Nexus” Test Alone .................. 20

iii

TABLE OF CONTENTS—Continued

Page

C. Failing To Reverse the Ninth Circuit’s

Reliance on the “Significant Nexus”

Factor Alone Would Create a CWA

That Exceeds Congress’ Power Under

The Commerce Clause ......................... 22

CONCLUSION..................................................... 25

iv

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ................21

Carter v. Carter Coal Co., 298 U.S. 238 (1936)...........24

County of Maui v. Haw. Wildlife Fund, 140 S. Ct.

1462 (2020) .......................................................... 6, 16

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)...........23

Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713

(1865) .......................................................................23

Marks v. United States, 430 U.S. 188 (1977) ... 8, 17, 18, 19

NLRB v. Jones & Laughlin Steel Corp., 301 U.S.

1 (1937) ....................................................................24

Nat’l Ass’n of Mfrs. v. Dep’t of Defense, 138 S. Ct.

617 (2018) ..................................................................6

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

519 (2012) ................................................................24

Nichols v. United States, 511 U.S. 738 (1994) ............18

Northern California River Watch v. City of

Healdsburg, 496 F.3d 993 (9th Cir. 2007) .................7

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

Revised Definition of Waters of the United States,

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

Sackett v. EPA, 566 U.S. 120 (2012) .............................6

Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021) .............. 7

v

TABLE OF AUTHORITIES—Continued

Page

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

Corps of Eng’rs, 531 U.S. 159 (2001)............... 20, 25

The Daniel Ball, 77 U.S. 557 (1870) ...........................20

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

U.S. 590 (2016) ..........................................................6

United States v. E.C. Knight Co., 156 U.S. 1

(1895) .......................................................................24

United States v. Lopez, 514 U.S. 549 (1995) ......... 22, 24

United States v. Morrison, 529 U.S. 598

(2000) ........................................................... 22, 23, 24

United States v. Rio Grande Dam & Irrigation

Co., 174 U.S. 690 (1899) ..........................................23

Wickard v. Filburn, 317 U.S. 111 (1942) ....................24

CONSTITUTIONAL PROVISIONS

U.S. CONST. art. I, § 8, cl. 3..........................................22

STATUTES

30 U.S.C. § 21a ..............................................................9

30 U.S.C. §§ 21 et seq. ...................................................9

33 U.S.C. § 1251(b) ......................................................21

33 U.S.C. § 1313(c)(1) ..................................................21

33 U.S.C. § 1342 ............................................................3

33 U.S.C. § 1344(a) ........................................................3

33 U.S.C. § 1362(6) ........................................................3

vi

TABLE OF AUTHORITIES—Continued

Page

33 U.S.C. § 1362(7) ........................................................5

33 U.S.C. § 1362(14) ......................................................3

33 U.S.C. §§ 1251 et seq. ...............................................6

43 U.S.C. § 1701(a)(12) .................................................9

A.R.S. § 49-241 ..............................................................2

Infrastructure Investment and Jobs Act ...................10

Nev. Rev. Stat. § 445A.465 ............................................2

RULES AND REGULATIONS

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

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

2022 Final List of Critical Minerals, 87 Fed. Reg.

10,381-01 (Feb. 24, 2022) .......................................... 11

Exec. Order No. 13953, Addressing the Threat to

the Domestic Supply Chain From Reliance on

Critical Minerals From Foreign Adversaries

and Supporting the Domestic Mining and Processing Industries, 85 Fed. Reg. 62539 (Sept.

30, 2020) ...................................................................... 9

Exec. Order No. 14017, America’s Supply Chains,

86 Fed. Reg. 11849 (Feb. 24, 2021) ...........................9

Exec. Order 14052, Implementation of the Infrastructure Investment and Jobs Act, 86 Fed.

Reg. 64335 (Nov. 18, 2021) ......................................10

vii

TABLE OF AUTHORITIES—Continued

Page

Exec. Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, 86 Fed. Reg. 70935 (Dec. 8, 2021) .................10

Revised Definition of Waters of the United States,

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

OTHER AUTHORITIES

David Humphreys, Mining investment trends

and implications for minerals availability

(Polinares Working Paper n. 15 2012), http://

pratclif.com/2015/mines-ressources/polinares/

chapter3.pdf ............................................................12

Government of Canada, Capital Expenditures

Information Bulletin (May 2021), https://www.

nrcan.gc.ca/capital-expenditures/17980 .................12

Keith R. Long et al., The Principal Rare Earth

Elements Deposits of the United States—A

Summary of Domestic Deposits and a Global

Perspective: USGS Scientific Investigations

Report (2010), https://pubs.usgs.gov/sir/2010/

5220/downloads/SIR10-5220.pdf ...........................13

National Mining Association, SNL Metals &

Mining: Permitting, Economic Value and

Mining in the United States (June 19, 2015),

https://nma.org/wp-content/uploads/2016/09/

SNL_Permitting_Delay_Report-Online.pdf ...........13

viii

TABLE OF AUTHORITIES—Continued

Page

Presidential Determination No. 22-11 of March

31, 2022, Memorandum on Presidential Determination Pursuant to Section 303 of the

Defense Production Act of 1950, as amended,

87 Fed. Reg. 19775 (Apr. 6, 2022)........................ 5, 11

SNL Metals & Mining, Permitting, Economic

Value, and Mining in the United States (June

15, 2015), https://nma.org/wp-content/uploads/

2016/09/SNL_Permitting_Delay_Report-Online.

pdf ............................................................................13

United Nations, United Nations Handbook on

Selected Issues for Taxation of the Extractive

Industries by Developing Countries (2017),

https://www.un.org/esa/ffd/wp-content/uploads/

2018/05/Extractives-Handbook_2017.pdf ............. 12

U.S. EPA, NPDES State Program Authority,

https://www.epa.gov/npdes/npdes-state-programauthority (last visited Apr. 14, 2022) ........................4

U.S. Geological Survey, Mineral Commodity Summaries 2021, Table 3 (2021), https://pubs.usgs.

gov/periodicals/mcs2021/mcs2021.pdf .............. 2, 15

U.S. Geological Survey, Mineral Commodity

Summaries 2022 (2022), https://pubs.usgs.gov/

periodicals/mcs2022/mcs2022.pdf ............................8

U.S. Gov’t Accountability Office, Hardrock Mining: BLM and Forest Service Have Taken

Some Actions to Expedite the Mine Plan Review Process but Could Do More (2016),

https://www.gao.gov/products/gao-16-165 ..............13

1

INTERESTS OF AMICI CURIAE

Amici curiae1 are leading national and state mining associations whose members have been active

since the 19th century in the entire mining life cycle,

beginning with prospecting and exploration, advancing through development and mineral extraction and

processing, and concluding with mine reclamation and

closure.

American Exploration and Mining Association

(AEMA) is a 125-year-old organization with 1,800

members, more than 80 percent of which are small

businesses or work for them. National Mining Association (NMA) is a national trade association whose

250-plus members include most of the producers of the

nation’s coal, metals, agricultural and industrial minerals; the manufacturers of mining equipment; and

other firms serving the mining industry. The Industrial

Minerals Association—North America (IMA-NA) is a

trade association whose members mine or process industrial minerals critical to the manufacturing, agricultural, energy, and tech industries in the United

States (and Canada and Mexico).

The Alaska Miners Association, Arizona Mining

Association, Idaho Mining Association, Mining Minnesota,

1

Pursuant to Rule 37.2(a), counsel for all parties have consented to the filing of this brief. Pursuant to Rule 37.6, no counsel

for a party authored this brief in whole or in part. No person or

entity other than Amici, their members, and their counsel made

a monetary contribution to its preparation and submission.

2

Montana Mining Association, Nevada Mining Association, New Mexico Mining Association, Utah Mining

Association, and Wyoming Mining Association come

from nine states that collectively produced more than

$31 billion worth of nonfuel minerals in 2020, according to the United States Geological Survey.2

Amici’s members routinely seek permits pursuant

to the Clean Water Act (CWA or Act) and therefore

have a keen interest in issues concerning the scope of

the Act, especially the need for a clear and consistent

definition of Waters of the United States (WOTUS).

They conduct mining operations in numerous regions

across the U.S. with varying geographies and hydrologic patterns. Some operate in the arid West, where

potentially regulated “waters” may not even be wet.

Others operate in geographic regions where an unduly

expansive definition of WOTUS threatens the substantial state-level regulation of waters and hence the cooperative federalism established by the Act. Amici do

not seek laxity, but rather certainty. Many state programs regulate a broader universe of waters than is

covered under any definition of covered federal waters.3 That certain waters fall outside the jurisdiction

of the Act does not leave them unprotected, but merely

2

U.S. Geological Survey, Mineral Commodity Summaries

2021, at 10, Table 3 (2021), https://pubs.usgs.gov/periodicals/

mcs2021/mcs2021.pdf.

3

Nevada, for instance, provides state-law protection to all

state waters, not just WOTUS, including all groundwater. Nev.

Rev. Stat. § 445A.465. Arizona similarly requires a permit for all

surface or subsurface discharges that may reach an aquifer.

A.R.S. § 49-241.

3

protected by the proper State-level authority. As West

Virginia and twenty other states noted at the cert

stage, many states assert jurisdiction over waters beyond those that fall within anyone’s definition of

WOTUS. “Often, those definitions extend to ephemeral

and intermittent waters and wetlands—expressly,

with no need to impose a “nexus” gloss on the statutory

text.” Brief of Amici Curiae State of West Virginia and

20 Other States in Support of Petitioner, at 6.

All Amici and their members must contend with

the definition of WOTUS. That definition determines

the scope of two of the Act’s two major permitting programs. Section 404(a) of the Act, 33 U.S.C. § 1344(a),

regulates the discharge of dredged or fill material into

‘‘navigable waters.’’ It is the 404 program that is the

source of the Sacketts’ legal headaches, but the same

definition controls Section 402 of the Act, 33 U.S.C.

§ 1342. Section 402 authorizes the discharge of “pollutants”4 into covered waters from a “point source,”5 subject to permits containing discharge limitations based

upon both water quality and technical feasibility.

4

The term “pollutant” is broadly defined, and includes

“dredged spoil, solid waste, incinerator residue, sewage, garbage,

sewage sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal, and agricultural

waste discharged into water.” 33 U.S.C. § 1362(6).

5

The CWA defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or

vessel or other floating craft, from which pollutants are or may be

discharged.” Id. § 1362(14).

4

Those permits are known as National Pollutant Discharge Elimination System (“NPDES”) permits, and

today are issued by forty-seven authorized states.6

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

SUMMARY OF ARGUMENT

Fifty years after the promulgation of the modern

Clean Water Act, there is no indication that either Congress or administrative agencies can or will implement

a durable and clear definition of waters subject to CWA

jurisdiction. As a result, Amici have been forced to

navigate ambiguous regulations that seemingly

change with every new political administration and

conflicting lower court decisions regarding the definition of WOTUS. This rollercoaster of changing regulations has created significant uncertainty that impedes

the mining and minerals industry’s ability to move forward with projects needed to support the nation’s infrastructure development, energy production, and

supply chain independence. Moreover, the nebulous

“significant nexus” test for determining the scope of

federal jurisdiction has swept into federal control even

ordinarily dry features, delaying and driving up the

cost of mine permitting exponentially.

6

U.S. EPA, NPDES State Program Authority, https://www.

epa.gov/npdes/npdes-state-program-authority (last visited Apr.

14, 2022).

5

This Court now has the opportunity to provide

much-needed clarity for the mining and minerals industry.

The Court’s charge is to determine “whether the

Ninth Circuit set forth the proper test for determining

whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).”

The answer to that question is a definitive no, for

reasons set forth below. The five decades of uncertainty,

only partially addressed by the Court’s prior jurisprudence, call for the Court’s answer to comprehensively

address the boundaries of CWA jurisdiction. Parties

need guidance on whether there remains any appropriate use of the “significant nexus” test. Addressing

the unjustified impediments to development of the

Sacketts’ tiny parcel under one provision of the Act is

necessary but not sufficient. Regulatory uncertainty

and over-reach cripple large swaths of the American

economy. That uncertainty has particularly substantial impacts on the mining and minerals industry, recognized yet again this month by the President as

having national security significance.7

Amici—and the nation’s economy—cannot continue waiting for the possibility that Congress will

7

Presidential Determination No. 22-11 of March 31, 2022,

Memorandum on Presidential Determination Pursuant to Section

303 of the Defense Production Act of 1950, as amended, 87 Fed.

Reg. 19775 (Apr. 6, 2022) (“To promote the national defense, the

United States must secure a reliable and sustainable supply of

such strategic and critical materials”).

6

someday choose to more robustly define WOTUS, the

most fundamental term of the Clean Water Act, 33

U.S.C. §§ 1251 et seq. The Court cannot compel Congress to provide that sort of statutory relief. But the

Court can provide further guidance to the lower courts

and agencies, whose WOTUS jurisprudence and rulemaking efforts have created a federal program far

broader in scope than Congress intended or the Constitution permits. Sixteen years ago, the Chief Justice

lamented that regulated parties were required to indefinitely “feel their way on a case-by-case basis” when

trying to understand their obligations under the Act.

Rapanos v. United States, 547 U.S. 715, 758 (2006)

(Roberts, C.J., concurring). That remains true today,

especially for the mining industry, and “the costs of uncertainty are so great.” County of Maui v. Haw. Wildlife

Fund (hereinafter, Maui), 140 S. Ct. 1462, 1491 (2020)

(Alito, J., dissenting). The Court has long bemoaned

the lack of clarity regarding federal authority under

the Act. Defining WOTUS has proven to be “contentious and difficult.” Nat’l Ass’n of Mfrs. v. Dep’t of Defense, 138 S. Ct. 617, 624 (2018). “The reach of the

Clean Water Act is notoriously unclear.” Sackett v. EPA,

566 U.S. 120, 132 (2012) (Alito, J., concurring). Indeed,

that lack of clarity “continues to raise troubling questions regarding the Government’s power to cast doubt

on the full use and enjoyment of private property

throughout the Nation.” U.S. Army Corps of Eng’rs v.

Hawkes Co., 578 U.S. 590, 602-03 (2016) (Kennedy,

Thomas, and Alito, JJ., concurring).

7

In its ruling below, 8 F.4th 1075 (9th Cir. 2021), the

Ninth Circuit determined that the Sacketts’ “soggy

residential lot” is a covered WOTUS because it satisfied (only) the “significant nexus” test set forth by Justice Kennedy in his concurrence in Rapanos. The Ninth

Circuit expressly relied on Justice Kennedy’s concurrence. Id. at 1091. In Rapanos, Justice Kennedy had

opined that the Act regulates wetlands that have a

“ ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” 547

U.S. at 759 (citation omitted).8

The Ninth Circuit opinion rejected the Sacketts’

contention that whether a wetland is a WOTUS must

be determined instead by Justice Scalia’s four-justice

plurality opinion from Rapanos. The plurality concluded that the Act regulates only “relatively permanent, standing or continuously flowing bodies of water”

and “wetlands with a continuous surface connection”

to such waters. Id. at 716, 717.9

8

The latest agency effort to define WOTUS again relies on

the “significant nexus” test even as to dry drainage features. And

that elastic concept is further invoked to suggest federal regulation may be justified over larger tracts or even entire ecoregions,

through aggregation of “similarly situated” features. No clarity is

provided when the common factor of such “similarly situated” features is that they are normally dry. Revised Definition of Waters

of the United States, 86 Fed. Reg. 69,372 (Dec. 7, 2021).

9

The Ninth Circuit further asserted that its use of the Kennedy test was compelled by its prior ruling in Northern California

River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007),

that ‘‘Justice Kennedy’s concurrence provides the controlling rule

of law’’ from Rapanos. Id. at 999-1000. The court in Healdsburg

had so concluded after finding that Justice Kennedy’s rationale

8

The Ninth Circuit’s ruling misinterprets the plain

language and intent of the CWA, misunderstands

Rapanos, and purports to create a regulatory regime

that exceeds Congress’ authority under the Commerce

Clause. That ruling, if not corrected, will continue to

wreak havoc with an industry critical to America’s

economy—particularly in the arid West, which is the

center of gravity for much of the nation’s mining and

minerals activity.10

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

ARGUMENT

I.

The Mining Industry Needs Clarity and Regulatory Certainty To Permit the Projects the

Nation Needs.

A. The Mining Industry Is Critically Important to the Nation’s Economy.

It is vitally important to the mining industry and

the nation that this Court, once and for all, provide certainty and clarity on the scope of federal jurisdiction

under the CWA. Mining and minerals development are

critical to the American economy, as Congress has repeatedly acknowledged since at least the enactment of

was the “narrowest ground” for the court’s fractured decision, as

instructed in Marks v. United States, 430 U.S. 188 (1977). Id. at

999. As discussed further below, Marks aside, the Ninth Circuit’s

adoption of the significant nexus test cannot be reconciled with

the terms of the Act or the Court’s Commerce Clause jurisprudence.

10

U.S. Geological Survey, Mineral Commodity Summaries

2022 (2022), https://pubs.usgs.gov/periodicals/mcs2022/mcs2022.pdf.

9

the 1872 General Mining Law, codified at 30 U.S.C.

§§ 21 et seq. See, e.g., 30 U.S.C. § 21a (developing domestic mineral resources is critical for national security); 43 U.S.C. § 1701(a)(12) (recognizing “the Nation’s

need for domestic sources of minerals”).

The importance of domestic mining today is

greater than ever. See Exec. Order No. 13953, Addressing the Threat to the Domestic Supply Chain From Reliance on Critical Minerals From Foreign Adversaries

and Supporting the Domestic Mining and Processing

Industries, 85 Fed. Reg. 62539, 62540 (Sept. 30, 2020)

(“our Nation’s undue reliance on critical minerals, in

processed or unprocessed form, from foreign adversaries constitutes an unusual and extraordinary

threat”); Exec. Order No. 14017, America’s Supply

Chains, 86 Fed. Reg. 11849 (Feb. 24, 2021) (calling for

update on work conducted pursuant to Executive Order 13953). Noting that “minerals remained fundamental to the U.S. economy,” the U.S. Geological Survey

(USGS) estimated that in 2020 American mines produced nonfuel minerals worth $82.3 billion. Nevertheless, USGS warned that the United States imported

more than half of the 46 top nonfuel minerals consumed in the economy.11

Indeed, the domestic mining industry provides

raw materials required for nearly every major objective of the Biden-Harris Administration from infrastructure to manufacturing to electrification. After

signing legislation making historic investments in the

11

Mineral Commodity Summaries 2021, supra note 2 at 6.

10

nation’s infrastructure, President Biden issued Executive Order (E.O.) 14052, Implementation of the Infrastructure Investment and Jobs Act. Among other

priorities, the E.O. promises to “help rebuild America’s

roads, bridges, and rails; expand access to clean drinking water; [and] work to ensure access to high-speed

internet throughout the Nation.”12 None of these infrastructure investments can be completed without mining. From foundations to roofs, power plants to wind

farms, roads and bridges to communications grids and

data storage centers, America’s infrastructure projects

begin with mining. Roads, railways, appliances, buildings, stadiums, bridges, airports, and other structures

are supported by steel—a material dependent on mining. Seventy percent of the world’s steel requires coal

for its production, and six billion tons of steel are used

in the U.S. National Highway System.

Transportation electrification is a central pillar of

the Biden-Harris Administration’s domestic policy

agenda, with a goal to electrify the federal fleet and

electrify 50 percent of all new car sales by 2030.13 This

goal to rapidly electrify the U.S. vehicle fleet will accelerate the demand for mined metals and minerals and

put pressure on already strained supply chains. The

White House’s own supply chain report projected that

12

Exec. Order 14052, Implementation of the Infrastructure

Investment and Jobs Act, 86 Fed. Reg. 64335, 64335 (Nov. 18,

2021).

13

Exec. Order 14057, Catalyzing Clean Energy Industries

and Jobs Through Federal Sustainability, 86 Fed. Reg. 70935,

70936 (Dec. 8, 2021).

11

electrifying just 20 percent of domestic light-duty vehicles would require approximately 25, 49, and 22 percent of the total global nickel, lithium, and cobalt

(respectively) that was mined in 2019.

Furthermore, mining is at the core of this Administration’s energy priorities. Amici’s members mine the

raw materials supporting the nation’s electric grid: 19

percent of U.S. electricity comes from coal, 20 percent

of electricity is generated from nuclear energy powered

by uranium, and 29 different minerals are required to

deliver electricity to our homes and businesses. The

metals Amici’s members mine are also critical components in renewable energy sources. For instance, 4.7

tons of copper are needed for a single wind turbine, and

10 percent of the global silver demand is used in the

production of solar panels. Many of the minerals that

play a role in providing energy are critical minerals, as

recently defined by the USGS.14 Continuing the regulatory uncertainty that delays their development will

stymie the objectives of Presidential Determination

No. 22-11.

B. Uncertainty Regarding the Scope of

WOTUS Impairs the Ability to Efficiently Permit Mining Projects.

The regulatory uncertainty resulting from the

“significant nexus” test has made it exponentially

more difficult for all regulated parties to permit their

14

2022 Final List of Critical Minerals, 87 Fed. Reg. 10,381,

10,382 (Feb. 24, 2022).

12

projects. Because it is so broad, that test can capture

features that are ordinarily dry or isolated from anything approaching a navigable water. The vague and

inherently subjective nature of the significant nexus

test makes it difficult for project developers and even

agency field staff to implement on the ground. It also

invites citizen suit litigation, producing further delay

and cost.

The costs and delays are particularly severe for

the mining industry. Unlike distinct development

parcels, mining operations occupy larger geographic

areas—frequently dozens of square miles. Their development and operational life can easily extend over decades. And the costs of developing mines can easily run

into the billions. Numerous global authorities, including national governments and expert mining consultancies, have repeatedly acknowledged the uniquely

capital-intensive nature of mining.15

15

See, e.g., Government of Canada, Capital Expenditures Information Bulletin (May 2021), https://www.nrcan.gc.ca/capitalexpenditures/17980 (“Mining projects are large-scale operations

that have extended lead times and entail a sizeable upfront investment in machinery, equipment, infrastructure and site preparation that can extend over multiple years.”); David Humphreys,

Mining investment trends and implications for minerals availability 4 (Polinares Working Paper n. 15 2012), http://pratclif.com/

2015/mines-ressources/polinares/chapter3.pdf (“Mining is a capital intensive industry, with new mine developments typically requiring extensive ground preparation, the construction of plant,

the acquisition of specialized equipment and the creation of facilities for the disposal of mine waste. Not uncommonly they will

also require the building of railways, ports and power stations.”);

United Nations, United Nations Handbook on Selected Issues for

13

In addition to being capital-intensive, mining projects are typically planned years in advance. Mining

operations often encompass large areas of land16 that

require complex onsite stormwater, groundwater, and

process water management. Mine developers design

and often modify projects to avoid impacts to WOTUS.

Taxation of the Extractive Industries by Developing Countries, at

345 (2017), https://www.un.org/esa/ffd/wp-content/uploads/2018/

05/Extractives-Handbook_2017.pdf (“From an investor standpoint, extractive industries investment also has special considerations as compared to regular investments: while the resources

are finite, their extraction and development are risky and very

capital intensive, with large investment required at the front end

of the project life and a long lead time until profitability is

achieved. On top of that, the business will require specific expertise for extraction and development.”); Keith R. Long et al., The

Principal Rare Earth Elements Deposits of the United States—A

Summary of Domestic Deposits and a Global Perspective: USGS

Scientific Investigations Report 2010–5220, at 23 (2010),

https://pubs.usgs.gov/sir/2010/5220/downloads/SIR10-5220.pdf

(“The largest of currently (2010) proposed new REE mining operations, including Mountain Pass, California, have reported

premining capital requirements of a half a billion dollars or

more.”); National Mining Association, SNL Metals & Mining: Permitting, Economic Value and Mining in the United States, at 30

(June 19, 2015), https://nma.org/wp-content/uploads/2016/09/

SNL_Permitting_Delay_Report-Online.pdf (“Until this stage of

the mining process, the exploration/mining company will have

seen outflows of $75-265 million, without any offsetting revenue.”).

16

In a limited study of hardrock mine site plans in 2016, the

U.S. Government Accountability Office reported that the sixtyeight sites averaged 529 acres, with the largest extending to

8,470 acres. U.S. Gov’t Accountability Office, Hardrock Mining:

BLM and Forest Service Have Taken Some Actions to Expedite

the Mine Plan Review Process but Could Do More (2016),

https://www.gao.gov/products/gao-16-165.

14

But they cannot do so if they cannot readily determine

which waters are subject to federal control and which

are left to the States. Mining operators also need a

WOTUS definition that can be relied upon for more

than one or two years before changing again. That stability can only be guaranteed by this Court’s definitive

explanation of the statutory and constitutional constraints on the definition.

As the recent global pandemic has demonstrated,

the nation’s energy, manufacturing, technology, defense, and medical supply chains are fragile. America’s

reliance on foreign countries and geopolitical rivals for

minerals and other materials that could be sourced domestically exposes the nation’s economy and way of life

to unacceptable risks. Despite the United States’ vast

mineral reserves, cumbersome permitting processes

make the country import-dependent for many key minerals. Inefficient permitting systems already impact

the domestic mining sector’s ability to meet demand.

Continued inefficiency would jeopardize the industry’s

contributions to helping this Administration achieve

its goal to build resilient supply chains and revitalize

American manufacturing and growth. The lack of clarity on the rules of the road, such as which waters need

permits under the CWA, only exacerbates the inefficient permitting processes. The President’s infrastructure and clean energy plans are dependent on the

critical minerals and materials Amici’s members mine.

Due to regulatory uncertainty and bureaucracy,

the U.S. has one of the longest permitting processes in

the world for mining projects. Necessary government

15

authorizations now take approximately seven to ten

years to secure.17

These delays do not yield any environmental benefits justifying the significant additional costs to project proponents. There are real world consequences for

permitting delays. Unexpected delays alone can reduce

a typical mining project’s value by more than onethird, and the higher costs and increased risk that can

arise from a prolonged permitting process can cut the

expected value of a mine in half before production even

begins. Permitting delays, moreover, increase U.S. reliance on foreign minerals, as investment dollars for

mining projects flow to more favorable destinations.

According to the USGS’ Mineral Commodity Summaries 2021, U.S. import dependence for key mineral commodities has doubled over the past two decades, with

the U.S. now 100 percent import-reliant for seventeen

key minerals and more than 50 percent import-reliant

for an additional twenty-nine key mineral commodities.18

U.S. mineral import reliance continues to increase

just as mineral demand from essential industries, such

as energy and transportation, is expected to soar. The

World Bank sees mineral demand for advanced energy

technologies jumping 500 percent by midcentury. Further delays in the domestic mining industry’s

17

SNL Metals & Mining, Permitting, Economic Value, and

Mining in the United States (June 15, 2015), https://nma.org/wpcontent/uploads/2016/09/SNL_Permitting_Delay_Report-Online.pdf.

18

Mineral Commodity Summaries 2021, supra note 2.

16

permitting processes can have far-reaching consequences on virtually every aspect of our society.

Properly clarifying and narrowing the definition of

WOTUS immediately is further compelled by the

Court’s recent ruling in Maui. In Maui, the Court held

that NPDES permits are also required for discharges

to groundwater that are “functionally equivalent” to

discharges into a navigable surface water. 140 S. Ct. at

1481. In that case, the relevant navigable surface water was the Pacific Ocean, a half-mile away. The Court

opined that the factors governing functional equivalency included the distance to the nearest navigable

surface water. In dicta, the majority opinion stated

that “permitting requirements likely do not apply” to

an underground discharge fifty miles and potentially

“many years” away from the nearest navigable water,

since such a discharge would not be the functional

equivalent of a direct discharge to surface water. Id. at

1476-77. The holding in Maui is a further signal that

the Act mandates a clear and narrowly tailored definition of WOTUS. The majority in Maui could not have

intended that this functional equivalence evaluation

be performed within a 49-mile radius of any water subject to the amorphous “significant nexus” test.

Given the staggering investment costs associated

with mining, properly defining WOTUS is paramount.

Defining WOTUS so broadly that the CWA effectively

becomes a federal land use law is inconsistent with

both congressional intent and the Commerce Clause

that provides the constitutional basis for the Act.

17

II.

The Ninth Circuit Decision Exacerbated

This Regulatory Uncertainty and Should Be

Reversed.

A. The Ninth Circuit Incorrectly Held That

WOTUS Can Be Regulated Solely Based

on the “Significant Nexus” Test.

The Ninth Circuit’s holding is premised on its

mistaken belief that the controlling rationale from

Rapanos is the “significant nexus” test articulated by

Justice Kennedy. The appellate court asserted this result was compelled by the Marks rule for interpreting

the controlling rationale in the face of fractured Supreme Court opinions. Marks v. United States, 430 U.S.

188 (1977). While it was struggling to apply Marks to

Rapanos, however, the Ninth Circuit failed to pay heed

to the text of the Act and the limits to Congress’ power

to regulate the channels of commerce. As explained

below, while a Marks analysis also reveals the Ninth

Circuit’s error, the text of the Act and the limits of Congress’ power to regulate the channels of interstate commerce would control in any event.

In Rapanos, five justices agreed that the Corps

had interpreted “waters of the United States” more

broadly than was allowed under the Act (and, likely,

the Commerce Clause). The five concurring justices

wrote two opinions, a plurality opinion by Justice

Scalia and a concurrence by Justice Kennedy.

The five concurring justices in Rapanos disagreed,

however, on the governing rationale. Justice Scalia

wrote for himself, Chief Justice Roberts, and Justices

18

Alito and Thomas. Justice Scalia’s plurality opinion

concluded that the federal Act regulates only “relatively permanent, standing or continuously flowing

bodies of water” that are connected to traditional navigable waters, plus wetlands that feature a continuous

surface connection to them. 547 U.S. at 716. Justice

Kennedy, meanwhile, opined that the Act regulates

wetlands that have a “ ‘significant nexus’ to waters

that are or were navigable in fact or that could reasonably be so made.” Id. at 759 (citation omitted). The requisite nexus of a wetland, Justice Kennedy continued,

could be demonstrated “either alone or in combination

with similarly situated lands in the region” whenever

they “significantly affect the chemical, physical, and biological integrity of other covered waters.” Id. at 780

(emphasis added).

Under no interpretation of Marks is the Ninth Circuit correct that Justice Kennedy’s test alone provides

the controlling rationale of Rapanos.19 One cannot conclude that either rationale is a “logical subset” of the

other. Justice Kennedy contended the plurality’s continuous surface connection factor was “inconsistent

with the Act’s text, structure, and purpose.” Id. at 776.

Justice Scalia asserted that the “significant nexus”

test merely stated that “whatever affects waters is waters.” Id. at 757. He asserted that Justice Kennedy’s

19

The Court also has the option, of course, of reexamining

the confusing Rapanos decision in full. Nichols v. United States,

511 U.S. 738, 745-46 (1994) (“This degree of confusion following a

splintered decision . . . is itself reason for reexamining that decision.”).

19

approach “simply rewrites the statute, using for that

purpose the gimmick of ‘significant nexus.’ ” Id. at 756.

Were this Court inclined to invoke Marks, the controlling rationale of the Rapanos majority could only

be that regulating a non-navigable wetland is permissible if it satisfies both tests. This is the narrowest position taken in the two opinions. Marks, 430 U.S. at

193. Between them, the two opinions agree only that

the Act regulates water bodies that satisfy both Justice

Scalia’s “relatively permanent and continuous” criterion and Justice Kennedy’s “significant nexus” test.

That is, Rapanos can only be read to allow regulation

of waters that: a) maintain a relatively permanent flow

that reaches traditional navigable water; and b) adjacent wetlands that significantly affect the chemical,

physical, and biological integrity of such covered waters, because of the frequency and duration of their

continuous surface connection. Again, of course, Marks

aside, using the significant nexus test alone to define

WOTUS cannot be squared with either the Act or the

Commerce Clause.20

20

Both the terms of the Act and the limits of Congress’ Commerce Clause power would allow the Court to adopt Justice

Scalia’s plurality opinion.

20

B. The Plain Language of the CWA and

Congressional Intent Do Not Support

Regulating WOTUS Based on the “Significant Nexus” Test Alone.

WOTUS cannot be read to fundamentally change

the meaning of the term it defines: “navigable waters.”

Nor, given the Commerce Clause, can it be used to justify federal regulation of the nation’s waters beyond

the authority of Congress to regulate the channels of

commerce.

More than twenty years ago this Court made clear

‘‘what Congress had in mind as its authority for enacting the Clean Water Act: its traditional jurisdiction

over waters that were or had been navigable in fact or

which could reasonably be so made.’’ Solid Waste

Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,

531 U.S. 159, 172 (2001). The Court added that the

legislative history of the Act does not suggest that

‘‘Congress intended to exert anything more than its

commerce power over navigation.’’ Id. at 168 n.3. Cf.

The Daniel Ball, 77 U.S. 557, 563 (1870) (Commerce

Clause extends to commercial activity on waters “when

they form in their ordinary condition by themselves, or

by uniting with other waters, a continued highway

over which commerce is or may be carried on with

other States”).

There is simply nothing in the text of the statute

or in its legislative history to suggest Congress intended to exercise federal jurisdiction over all areas

from which water molecules might someday travel to

21

a navigable-in-fact water. The text itself rejects the

proposition that Congress intended to displace the

traditional state and local regulation of other waters.

The Act states that “[i]t is the policy of the Congress

to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and

eliminate pollution, to plan the development and use

(including restoration, preservation, and enhancement) of land and water resources. . . .” 33 U.S.C.

§ 1251(b) (emphasis added). It is no accident that the

CWA is found in Title 33 of the United States Code,

entitled “Navigation and Navigable Waters.”

“The Clean Water Act anticipates a partnership

between the States and the Federal Government[.]”

Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992). That

partnership does not limit the States to merely implementing federal mandates under agency oversight.

Rapanos, 547 U.S. at 737-39 (plurality op.). States and

not the federal government have full primacy on regulation of waters that fall outside the definition of

WOTUS, of course. Even within the WOTUS universe,

States also have primary responsibility for establishing the water quality standards for waters within

their jurisdiction. 33 U.S.C. § 1313(c)(1), (2)(A). The Act

leaves to States the regulation of non-point source of

pollutants, even to those waters defined as WOTUS.

22

C. Failing To Reverse the Ninth Circuit’s

Reliance on the “Significant Nexus”

Factor Alone Would Create a CWA That

Exceeds Congress’ Power Under The

Commerce Clause.

The Ninth Circuit’s conclusion that regulation of a

0.63-acre parcel is a federal matter redressable by

Congress’ power under the Commerce Clause is also

mistaken. The Ninth Circuit position effectively is that

any water with a “significant nexus” to a navigable-infact water likewise must have a substantial effect on

interstate commerce. That is not the case. The lone constitutional basis for the CWA is Congress’ power to regulate interstate commerce. Under Article 1, Section 8

of the Constitution, “Congress shall have Power . . . [t]o

regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes[.]” U.S.

CONST. art. I, § 8, cl. 3. That power is not unlimited. The

Ninth Circuit’s ruling produces an Act whose scope is

constitutionally impermissible.

Even at its most expansive, Congress’ authority

under the Commerce Clause supports federal legislation in three areas only: 1) “channels of interstate

commerce”; 2) “the instrumentalities of interstate

commerce”; and 3) “activities that substantially affect

interstate commerce.” United States v. Morrison, 529

U.S. 598, 609 (2000) (quotation marks and citation

omitted); United States v. Lopez, 514 U.S. 549, 558-59

(1995).

23

As explained above, the text and history of the

CWA make clear that the Act is supported only by the

first of the three prongs, Congress’ authority to regulate the “channels of interstate commerce.” Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 2 (1824). That power authorizes regulation of only those waters that are

among the “natural highways” of interstate commerce.

United States v. Rio Grande Dam & Irrigation Co., 174

U.S. 690, 703 (1899). Only these waters can be properly

characterized as the “public property of the nation.”

Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25

(1865) (referring to “public property”). “Waters” that

have no continuous surface connection to surface water

in another state or a territorial sea bear no relation to

the navigability concerns that undergird this strand of

Commerce Clause jurisprudence. Nor do such waters

qualify as “instrumentalities of interstate commerce.”

Even if Congress had intended to do more than

regulate waters as channels of interstate commerce, it

could permissibly regulate only that conduct that

would “substantially affect interstate commerce.” Morrison, 529 U.S. at 609 (emphasis added) (citation omitted). Congress cannot regulate waters merely because

they have a purported “significant nexus” to navigablein-fact waters; there must be a “substantial effect” on

interstate commerce itself as well. To the extent executive branch agencies (sporadically) and some lower

courts have relied on this prong of the Commerce

Clause, they fail to recognize the Court’s recent jurisprudence.

24

For Congress’ exercise of authority to be lawful under the third prong, the regulated activity’s effect on

interstate commerce must be both substantial and economic. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

519, 551 (2012); Morrison, 529 U.S. at 611 (“where we

have sustained federal regulation of intrastate activity

based upon the activity’s substantial effects on interstate commerce, the activity in question has been some

sort of economic endeavor”).

For instance, in recent years the Court rejected

federal regulation of “noneconomic, violent criminal

conduct based solely on that conduct’s aggregate effect

on interstate commerce” in Morrison, 529 U.S. at 617.

The Court has also noted with approval a series of earlier cases holding that the Commerce Clause did not

permit Congress to automatically regulate activities

such as “production,” “manufacturing,” and “mining.”

Lopez, 514 U.S. at 554 (citing Wickard v. Filburn, 317

U.S. 111, 121 (1942)); United States v. E.C. Knight Co.,

156 U.S. 1, 12 (1895) (“Commerce succeeds to manufacture, and is not part of it.”); Carter v. Carter Coal Co.,

298 U.S. 238, 304 (1936) (“Mining brings the subjectmatter of commerce into existence. Commerce disposes

of it.”).

The Court has regularly warned that the commerce power cannot be used to regulate “indirect and

remote” effects on interstate commerce that “would effectually obliterate the distinction between what is national and what is local and create a completely

centralized government.” Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,

25

37 (1937)). The Ninth Circuit’s view that Congress can

regulate waters that are neither interstate nor navigable would do precisely that. See also Rapanos, 547 U.S.

at 722 (plurality opinion) (noting “the immense expansion of federal regulation of land use that has occurred

under the Clean Water Act—without any change in the

governing statute”); id. at 738 (plurality) (noting expansive interpretation “stretches the outer limits of

Congress’s commerce power and raises difficult questions about the ultimate scope of that power,” and expecting “a clearer statement from Congress to

authorize an agency theory of jurisdiction that presses

the envelope of constitutional validity”); Solid Waste

Agency, 531 U.S. 159 at 173 (noting but not reaching

“significant constitutional questions” raised by expansive interpretation of the CWA’s reach).

Enough economic damage has been done because

of the continued uncertainty about whether the Commerce Clause justifies federal regulation of waters that

are not interstate or navigable, or adjacent to and inseparably bound up with such waters. Only a robust

ruling by this Court can clarify what waters are truly

fit for national regulation.

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

CONCLUSION

For the foregoing reasons, Amici believe that the

Ninth Circuit must be reversed. The Court should clarify that federal authority under the Act extends only to

those waters that qualify as navigable “channels of

26

interstate commerce,” along with adjacent wetlands

that are inseparably bound up with such open waters,

or, should Rapanos be retained, the plurality’s opinion.

Respectfully submitted,

CHRISTOPHER D. THOMAS

Counsel of Record

ANDREA J. DRIGGS

PERKINS COIE LLP

2901 North Central Avenue

Suite 2000

Phoenix, AZ 85012-2788

(602) 351-8000

CThomas@perkinscoie.com

adriggs@perkinscoie.com

Counsel for Amici Curiae

April 18, 2022