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, ET UX.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

__________________________

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

ASSOCIATED INDUSTRIES OF FLORIDA (“AIF”)

AND THE FLORIDA H2O COALITION (“H2O COALITION”)

IN SUPPORT OF PETITIONERS

TERRY P. COLE

COUNSEL OF RECORD

GREGORY M. MUNSON

DEBORAH K. MADDEN

GUNSTER LAW FIRM

215 S. MONROE STREET, SUITE 601

TALLAHASSEE, FL 32301

(850) 521-1980

GMUNSON@GUNSTER.COM

APRIL 18, 2022

SUPREME COURT PRESS

COUNSEL FOR AMICI CURIAE

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE ....................... 1

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

ARGUMENT ............................................................... 4

I.

THE SIGNIFICANT NEXUS TEST IS NOT THE

PROPER TEST FOR WHETHER A WETLAND IS

“WATERS OF THE UNITED STATES” UNDER

THE CLEAN WATER ACT, 33 U.S.C. § 1362(7)

BECAUSE THE CLEAN WATER ACT EMBRACES

FEDERALISM IN ADDRESSING WATER POLLUTION ................................................................... 4

II. EXPANSION OF FEDERAL JURISDICTION

UNDER THE CWA THREATENS FLORIDA’S

COMPREHENSIVE STATE ENVIRONMENTAL

REGULATION AND PERMIT PROCESS .................. 7

A. Florida Has Broad and Protective Environmental Regulations That Make the

Significant Nexus Test Unnecessary ......... 7

B. Florida’s Environmental Statutes and

Regulations Are Jeopardized by Expanding Federal Jurisdiction under the

Clean Water Act........................................ 11

C. Federal Water Regulations Impede

Florida’s Efforts to Streamline the

Regulatory Process for Certain Types of

Projects ...................................................... 17

D. State Assumption of 404 Permitting Is

Inhibited by the Significant Nexus Test ... 20

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

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Avoyelles Sportsmen’s League, Inc. v. Marsh,

715 F.2d 897 (5th Cir. 1983) ............................. 14

Hess v. Port Authority Trans–Hudson Corp.,

513 U.S. 30 (1994) ............................................... 5

Rapanos v. United States,

547 U.S. 715 (2006) ............................... 2, 4, 5, 20

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ............................................. 5

United States v. Bailey,

571 F.3d 791 (8th Cir. 2009) ............................... 4

United States v. Huebner,

752 F.2d 1235 (7th Cir. 1985) ............................ 14

CONSTITUTIONAL PROVISIONS

Fla. Const., art. VII, § 9(b) ....................................... 13

FEDERAL STATUTES

33 U.S.C. §§ 1251 et seq.,

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

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

33 U.S.C. § 1344(f)(1) ................................................ 14

33 U.S.C. § 1344(f)(2) ................................................ 14

33 U.S.C. § 1344(g) ................................................... 20

33 U.S.C. § 1344(h) ................................................... 20

iii

TABLE OF AUTHORITIES – Continued

Page

33 U.S.C. § 1344(j) .................................................... 20

33 U.S.C. § 1362(7) ..................................................... 4

STATE STATUTES

10 V.S.A. Ch. 37, § 905(b) ......................................... 17

15A N.C. Admin. Code 2H.1301 ............................... 17

Conn. Gen. Stat. Ann. § 22a-36 et seq. .................... 17

Del. Code Ann. tit. 7, § 6601 ..................................... 17

Fla. Stat. § 120.542(2)............................................... 16

Fla. Stat. § 373.406(2)............................................... 14

Fla. Stat. § 373.407 ................................................... 14

Fla. Stat. § 373.413(2)............................................... 13

Fla. Stat. § 373.414 ............................................. 11, 12

Fla. Stat. § 373.4144(1)............................................. 18

Fla. Stat. § 373.4146(3)............................................. 15

Fla. Stat. § 403.031(12)............................................... 8

Fla. Stat. § 403.031(13)........................................... 8, 9

Fla. Stat. § 403.031(3)................................................. 8

Fla. Stat. § 403.061 ............................................... 9, 16

Fla. Stat. § 403.0752(1)............................................. 18

Fla. Stat. § 403.0752(9)............................................. 18

Fla. Stat. § 403.088(1)................................................. 9

Fla. Stat. § 403.0885(1)............................................. 18

Fla. Stat. § 403.201 ................................................... 16

iv

TABLE OF AUTHORITIES – Continued

Page

Fla. Stat. § 403.503(2)............................................... 19

Fla. Stat. § 403.5064 ................................................. 19

Fla. Stat. § 403.5065 ................................................. 19

Fla. Stat. § 403.5066 ................................................. 19

Fla. Stat. § 403.509 ................................................... 19

Fla. Stat. § 403.703(35)............................................. 15

Fla. Stat. § 403.7045 ................................................. 15

Fla. Stat. § 403.7047 ................................................. 16

Fla. Stat. § 403.804(1)............................................... 16

Fla. Stat. § 403.805(1)............................................... 16

Fla. Stat. § 403.813(b)–(s)......................................... 14

Fla. Stat. § 403.927 ................................................... 13

Fla. Stat. § 403.973(1)............................................... 19

Ga. Code Ann. § 12-5-280 ......................................... 17

Iowa Code Ann. § 456B.13 ........................................ 17

La. Stat. Ann. § 49:214.28 ........................................ 17

Mass. Gen. Laws Ann. ch. 131, § 40......................... 17

Me. Rev. Stat. tit. 38, § 480-C .................................. 17

Mich. Comp. Laws Ann. § 324.30301 ....................... 17

Minn. Stat. Ann. § 103G.005 .................................... 17

Miss. Code. Ann. § 49-27-1 ....................................... 17

N.H. Rev. Stat. Ann. § 482-A:11............................... 17

N.J. Stat. Ann. § 13:9B-1 .......................................... 17

N.Y. Env’t Conserv. Law § 24-0703 ......................... 17

v

TABLE OF AUTHORITIES – Continued

Page

R.I. Gen. Laws Ann. § 2-1-18.................................... 17

S.C. Code Ann. § 48-39-150 ...................................... 17

Va. Code Ann. § 62.1-44.2......................................... 17

W.S. § 35-11-309(b) ................................................... 17

Wash. Rev. Code Ann. § 90.48.080 ........................... 17

JUDICIAL RULES

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

REGULATIONS

2015 Clean Water Rule............................................... 2

2020 Navigable Waters Protection Rule ................... 2

F.A.C. Rule 62-330.010(1) ........................................ 11

F.A.C. Rule 62-330.010(2) ........................................ 11

F.A.C. Rule 62-330.051 ............................................. 15

F.A.C. Rule 62-340.300 ............................................. 11

F.A.C. Rule 62-520.410(1) ............................................ 9

Md. Code Regs. 26.23.02.01 ...................................... 17

Or. Admin. R. 141-085-0680 ..................................... 17

LEGISLATIVE MATERIALS

49 Fed. Reg. 38,947 (Oct. 2, 1984) ............................ 20

59 Fed. Reg. 9,933 (Mar. 2, 1994) ............................ 20

84 Fed. Reg. 5154 ...................................................... 14

84 Fed. Reg. 5158 ...................................................... 14

vi

TABLE OF AUTHORITIES – Continued

Page

85 Fed. Reg. 83,533 (Dec. 22, 2020) ......................... 20

86 Fed. Reg. 69,372 (Dec. 7, 2021) ............................. 2

OTHER AUTHORITIES

Debra Alise Spungin,

Troubled Waters: Florida’s Isolated

Wetlands in the Aftermath of Solid Waste

Agency of Northern Cook County v. U.S.

Army Corps of Engineers,

26 NOVA L. REV. 371 (2001) ................................ 13

EPA & Corps,

Memorandum re: Clean Water Act

Jurisdiction v. United States & Carabell v.

United States (Dec. 2008) ..................................... 6

Noah Valenstein,

Letter to the EPA et al., Comments on

Proposed Rule Regarding Definition of

“Waters of the United States”—

Recodification of Pre-Existing Rules,

available at: https://www.regulations.gov/

comment/EPA-HQ-OW-2017-0203-13822

(Jun. 19, 2017) ..................................................... 7

1

INTEREST OF THE AMICI CURIAE1

Amici curiae consist of two non-profit corporations: Associated Industries of Florida (“AIF”), and

the Florida H2O Coalition (“H2O Coalition”).

AIF is the voice of Florida business, and the

largest association of business, trade, commercial,

and professional organizations in Florida.

It represents the interests of a broad group of

corporations, professional associations, partnerships,

and proprietorships in all business sectors. It has

represented the interests of prosperity and free enterprise before the three branches of state government

since 1920. A voluntary association of diversified businesses, AIF was created to foster an economic climate

in Florida conducive to the growth, development, and

welfare of industry and business and the people of the

state. AIF seeks to lessen the burdens government

would place on employers, while seeking solutions to

conditions that threaten their success.

While AIF is the recognized leader of Florida

business in the state Capitol, dealing with significant

changes and revisions to federal water policy has

frequently required a broader group of interested

parties to appropriately address the variety of viewpoints. To this end, AIF established its H2O Coalition

1 All parties consented to the filing of this brief. Pursuant to

Supreme Court Rule 37.6, amici curiae state that no counsel for

any party authored this brief in whole or in part and no entity

or person, aside from amici curiae, its members, or its counsel,

made any monetary contribution intended to fund the preparation or submission of this brief.

2

for the specific purpose of bringing a broad spectrum

of stakeholders together to comprehensively address

state and federal water policy issues. The AIF H2O

Coalition membership consists of a broad and diverse

group of stakeholders including agricultural, industrial,

manufacturing, power generation, home building, and

county and municipal government. The H2O Coalition

has enabled AIF, and many Florida interests, to successfully engage with the state and federal governments

making updates in the early and mid-2000s to federal

Numeric Nutrient Criteria and supporting delegation of federal wetland permitting to the Florida

Department of Environmental Protection. Most pertinently, AIF’s H2O Coalition also provided significant

input on the 2015 Clean Water Rule, including an

independent economic impact analysis, the 2020

Navigable Waters Protection Rule, and most recently

on the proposed Revised Definition of Waters of the

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

The H2O Coalition expressed serious concerns

about the 2015 Clean Water Rule, including its overly

expansive view of federal jurisdiction, the cost of

compliance, and its impact on competing state and

local government environmental priorities.

AIF and the H2O Coalition comments on the draft

Navigable Waters Protection Rule supported use of

the continuous surface water connection standard set

forth in Rapanos v. United States, 547 U.S. 715, 742

(2006), and made several specific recommendations

regarding groundwater, treatment and cooling ponds,

and the definition of tributaries. The comments

emphasized the importance maintaining state control

over state environmental regulation, as advocated in

this brief.

3

The comment letter submitted by AIF and the

H2O Coalition on the most recent proposed rule took

specific aim at the significant nexus test, referring to

it as “entirely too vague and too broad.” AIF and the

H2O Coalition critiqued the agencies’ rationale for

the draft rule as not being scientifically established,

and not being supported by existing law.

SUMMARY OF THE ARGUMENT

Congress’ direction in the Clean Water Act

(“CWA”) that states retain their primacy over water

resource protection is well-established. A broad and illdefined standard, like the significant nexus test, will

expand federal jurisdiction. The expansion of federal

jurisdiction is unnecessary in states like Florida, whose

environmental regulations cover isolated wetlands

and groundwater. In addition, expanded federal jurisdiction will further undermine Florida’s targeted

permit exemptions for activities in wetlands and its

efforts to streamline state environmental permitting

for priority projects, like power generation. Use of a

vague standard like the significant nexus test is likely

to discourage state adoption of the CWA section 404

permitting program, an option specifically offered in

the CWA.

4

ARGUMENT

I.

THE SIGNIFICANT NEXUS TEST IS NOT THE

PROPER TEST FOR WHETHER A WETLAND IS

“WATERS OF THE UNITED STATES” UNDER THE

CLEAN WATER ACT, 33 U.S.C. § 1362(7) BECAUSE

THE CLEAN WATER ACT EMBRACES FEDERALISM

IN ADDRESSING WATER POLLUTION.

The significant nexus test is “perfectly opaque.”

Rapanos, 547 U.S. at 756 n.15. As predicted in Rapanos, it has not constrained the federal agency that

previously manifested a disregard for the limitations

in the CWA. See id. The test has been widely adopted

by the lower courts. See United States v. Bailey, 571

F.3d 791, 798 (8th Cir. 2009) (reviewing cases). Petitioners’ Brief accurately characterizes the test as “divorced

from the statutory text,” “illogical,” improperly elevating

one statutory purpose over other purposes, unclear,

and overbroad. See Petitioners’ Brief on the Merits, at

45–49, Michael Sackett, et al. v. United States Environmental Protection Agency et al. (April 11, 2022)

(No. 21-454). As further noted by Petitioners, the test

elevates one statutory purpose, water quality, over

other important Congressional aims, such as preserving the state’s primary authority over land and

water resources. See id. at 46.

By placing primary responsibility for regulating

wetlands on the U.S. Army Corps of Engineers

(“Corps”) and U.S. Environmental Protection Agency

(“EPA”), the significant nexus test undermines the

states’ and local governments’ traditional roles in

governing land and water use policy. Congress directed

5

in the CWA that the federal government ‘‘recognize,

preserve, and protect the primary responsibilities

and rights of States to prevent, reduce, and eliminate

pollution’’ and ‘‘to plan the development and use . . .

of land and water resources . . . .’’ 33 U.S.C. § 1251(b)

(2022). Congress sought to avoid the significant constitutional and federalism questions raised by broadly

interpreting waters of the United States. Solid Waste

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

531 U.S. 159, 174 (2001). States have traditional and

primary power over land and water use. See id.

(quoting Hess v. Port Authority Trans–Hudson Corp.,

513 U.S. 30, 44 (1994) (“[R]egulation of land use [is]

a function traditionally performed by local governments”)); see also Rapanos, 547 U.S. at 738 (“Regulation of land use, as through the issuance of the

development permits sought by petitioners in both

of these cases, is a quintessential state and local

power.” (citations omitted)). The states and local

governments are the traditional and appropriate

decision-makers for land and water use decisions

based on their localized knowledge of the land and

water features and their relative importance at the

state and local level.

The significant nexus test is, at best, vague and

ambiguous, and has been applied by EPA and the

Corps to sweep in a wide range of features. For

example, under the significant nexus test as applied

by EPA and the Corps in the pre-2015 WOTUS

regime, by looking at wetlands alone or in combination

with other similarly situated wetlands and layering

on that a significant nexus can be established both

from “potential of tributaries to carry pollutants and

flood waters to traditional navigable waters” and

6

“potential of wetlands to trap and filter pollutants

or store flood waters”, EPA and the Corps draw

arguments from both sides of the same coin to assert

jurisdiction. See EPA & Corps, Memorandum re: Clean

Water Act Jurisdiction Following the U.S. Supreme

Court’s Decision in Rapanos v. United States &

Carabell v. United States (Dec. 2008). By broadly

empowering EPA and the Corps to assert federal

authority over any wetland or surface water with

even a remote theoretical connection to traditional

navigable waters, the significant nexus test interferes

with the traditional state and local power. It coerces

applicants to acquiesce to federal jurisdiction to avoid

the expense and time of determining what constitutes

a significant nexus, and to avoid lengthy and costly

battles and litigation. Federal agency regulation on a

case-by-case basis of smaller features covered by

the significant nexus test, like some mostly isolated

wetlands and ephemeral drainages, fails to acknowledge the limitations on the scope of CWA jurisdiction

and the necessary balance between traditional state

authority and federal jurisdiction to protect the waters

of the U.S. The broad significant nexus test threatens

the relevance of localized policy considerations, and

ignores the congressional direction on state roles and

tailored review of site-specific conditions. It fails to

consider the imposing federal requirements such as

identification of project purpose, practicable alternatives analysis, mitigation hierarchy regulation, public

interest test, and EPA’s veto power over permit decisions.

A definition of waters of the United States that

more precisely instructs potentially regulated applicants on how to read Congress’ limits on the reach of

7

the CWA would benefit the country and preserve the

important, traditional role of state and local governments.

II. EXPANSION OF FEDERAL JURISDICTION UNDER

THE CWA THREATENS FLORIDA’S COMPREHENSIVE STATE ENVIRONMENTAL REGULATION AND

PERMIT PROCESS.

A. Florida Has Broad and Protective

Environmental Regulations That Make

the Significant Nexus Test Unnecessary.

Not all waters needed to be treated as waters of

the United States to be protected. Florida possesses

robust and comprehensive regulations governing

waters that are independent from, and broader than,

the coverage provided by the CWA, 33 U.S.C. §§ 1251

et seq. (2021). See Letter from Noah Valenstein, Secretary, Florida Department of Environmental Protection,

to Scott Pruitt, Administrator, U.S. Environmental

Protection Agency, and Douglas W. Lamont, Senior

Official Performing the Duties of the Assistant Secretary of the Army, Comments on Proposed Rule

regarding Definition of “Waters of the United States”—

Recodification of Pre-Existing Rules (Jun. 19, 2017) at

1 (available at: https://www.regulations.gov/comment

/EPA-HQ-OW-2017-0203-13822) (hereinafter “FDEP

Letter”) (writing that the state’s “authority to regulate

water resources is far broader than its approvals

from EPA to implement federal programs in ‘waters

of the United States.’”). Like the CWA, the foundation

of Florida’s regulations is the definition of the waters

being covered, referred to as “Waters of the State” or

simply “Waters”:

8

“Waters” include, but are not limited to,

rivers, lakes, streams, springs, impoundments, wetlands, and all other waters or

bodies of water, including fresh, brackish,

saline, tidal, surface, or underground waters.

Waters owned entirely by one person other

than the state are included only in regard to

possible discharge on other property or water.

Underground waters include, but are not

limited to, all underground waters passing

through pores of rock or soils or flowing

through in channels, whether manmade or

natural. Solely for purposes of s. 403.0885

[Establishment of Florida’s Assumption of

National Pollutant Elimination Discharge

System], waters of the state also include

navigable waters or waters of the contiguous

zone as used in s. 502 of the Clean Water

Act, as amended, 33 U.S.C. ss. 1251 et seq.,

as in existence on January 1, 1993, except

for those navigable waters seaward of the

boundaries of the state set forth in s. 1, Art.

II of the State Constitution.

Fla. Stat. § 403.031(13) (2021) (emphasis added). “Thus,

in Florida, ‘waters of the United States’ is a subset of

the term ‘waters of the state.’” FDEP Letter, at 4.

Elsewhere, Florida law relies upon this definition to regulate pollution. See, e.g., Fla. Stat.

§ 403.031(3) (2021) (defining pollution to include the

presence of injurious “substances, contaminants, noise,

or manmade or human-induced impairment of air

or waters or alteration of the chemical, physical,

biological, or radiological integrity” in “waters of the

state.”); Fla. Stat. § 403.031(12) (2021) (defining waste

9

to include substances which pollute waters of the

state); Fla. Stat. § 403.061 (2021) (authorizing the

Florida Department of Environmental Protection to

adopt a comprehensive program for the prevention,

control, and abatement of pollution in waters of the

state); Fla. Stat. § 403.088(1) (2021) (requiring a permit

from the Florida Department of Environmental Protection to discharge waste into waters of the state).

Florida’s definition does not need to wrestle with

the connectivity question that the significant nexus

test attempts to address because it directly regulates

underground waters, including those “passing through

pores of rocks or soils or flowing through channels,

whether manmade or natural.” Fla. Stat. § 403.031(13)

(2021). Discharges to groundwater are directly regulated by the state. See Fla. Admin. Code Ann. Ch.

62-530 (2022). Analogous to the CWA, Florida groundwater falls into one of five classifications, and each

classification contains prohibitions on the nature of

pollution that can be discharged into it. For example,

Class G-III groundwater is groundwater with the

same concentration of total dissolved solids as Classes

G-I and G-II but determined to not possess a reasonable potential for use as a future source of drinking

water. Fla. Admin. Code Ann. r. 62-520.410(1) (2022).2

Like all groundwater, Class G-III must meet certain

2 The full designated use is “non-potable water use, ground water

in unconfined aquifers with a total dissolved solids content of

10,000 mg/L or greater; or with a total dissolved solids content

of 3,000-10,000 mg/L and either has been reclassified by the

Commission as having no reasonable potential as a future source

of drinking water, or has been designated by the Department as

an exempted aquifer pursuant to subsection 62-528.300(3), F.A.C.”

62-520.410(1) (2022).

10

standards3 but, unlike more protected classes, allows

discharges from underground injection control systems (regulated by other provisions in Florida’s

environmental rules).

Florida’s definition of Waters of the State also

explicitly covers wetlands without regard to connectivity to other bodies of water. FDEP Letter, at 5

(“Perhaps most important, there is no requirement

that water bodies be connected to or impact a navigable

water for the state program to apply.”). Protection of

Florida’s wetlands are accomplished through a wide

variety of regulations in chapter 373, Florida Statutes,

and various chapters of the Florida Administrative

3 The minimum criteria require that:

All ground water shall at all places and at all times be free

from domestic, industrial, agricultural, or other man-induced

non-thermal components of discharges in concentrations

which, alone or in combination with other substances, or

components of discharges (whether thermal or non-thermal):

(a)

Are harmful to plants, animals, or organisms that

are native to the soil and responsible for treatment

or stabilization of the discharge relied upon by

Department permits, or

(b)

Are carcinogenic, mutagenic, teratogenic, or toxic to

human beings, unless specific criteria are established

for such components in Rule 62-520.420, F.A.C., or

(c)

Are acutely toxic within surface waters affected by

the ground water, or

(d)

Pose a serious danger to the public health, safety, or

welfare, or

(e)

Create or constitute a nuisance, or

(f)

Impair the reasonable and beneficial use of adjacent

waters.

11

Code. See, e.g., Fla. Stat. § 373.414 (2021) (describing

process for wetlands regulation); Fla. Admin. Code

Ann. r. 62-330.010(1), (2) (2022) (describing implementation of wetlands permitting); Fla. Admin. Code Ann.

r. 62-340.300 (2022) (describing delineation of state

wetlands). These definitions in state law provide

regulatory certainty to the regulated public and allow

for narrow exemptions or streamlined permitting

(discussed next) where appropriate in the state’s policy

determination.

Protecting Florida’s environment does not need

expansive regulation of waters of the United States

under the significant nexus test, which serves only to

add delay and an unnecessary layer of governmental

review.

B. Florida’s Environmental Statutes and

Regulations Are Jeopardized by

Expanding Federal Jurisdiction under

the Clean Water Act.

While Florida’s protection and delineation of

state wetlands is superficially similar to the federal

approach, there are some important distinctions. First,

Florida’s wetland delineation methodology is different

by protecting isolated wetlands. As described by one

commentator:

Throughout most of the state, Florida affords

considerable protection to its isolated wetlands under section 373.414, Florida Statutes.

Section 373.414, incorporating rule 62-340.

200 of the Florida Administrative Code,

defines wetlands beginning with the same

operational sentence as the Corps’ definition:

“those areas that are inundated or saturated

12

by surface water or ground water at a frequency and a duration sufficient to support,

and under normal circumstances do support,

a prevalence of vegetation typically adapted

for life in saturated soils.”

Florida’s rule further defines wetlands:

Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing

soil conditions. The prevalent vegetation in

wetlands generally consists of facultative or

obligate hydrophytic macrophytes that are

typically adapted to areas having soil conditions described above. These species, due

to morphological, physiological, or reproductive adaptations, have the ability to grow,

reproduce or persist in aquatic environments

or anaerobic soil conditions. Florida wetlands generally include swamps, marshes,

bayheads, bogs, cypress domes and strands,

sloughs, wet prairies, riverine swamps and

marshes, hydric seepage slopes, tidal

marshes, mangrove swamps, and other similar areas. Florida wetlands generally do not

include longleaf or slash pine flatwoods with

an understory dominated by straw palmetto.

The statutory definition employed under

section 373.414 is thus unique to Florida’s

local characteristics and inclusive of isolated

wetlands.

Debra Alise Spungin, Troubled Waters: Florida’s

Isolated Wetlands in the Aftermath of Solid Waste

Agency of Northern Cook County v. U.S. Army Corps of

13

Engineers, 26 NOVA L. REV. 371, 384 (2001) (emphasis

added) (internal citations omitted); see also FDEP

Letter, at 5 (“The state’s [Wetland] Permitting program is more comprehensive than the federal dredge

and fill program under section 404 of the Clean Water

Act because it also regulates alterations of uplands

that may affect surface water flows, and addresses

issues of the flooding and stormwater treatment.”).

Use of the significant nexus test increases the number

of federal wetlands and the duplicative regulation

of wetlands otherwise regulated only under state law.

Second, Florida’s wetland permitting process is

also substantially different and more comprehensive

than its federal counterpart. Permits are available

from Florida’s five water management districts, almost

of all of which have taxing authority independent

from state budget allocations. See Fla. Const., art.

VII, § 9(b) (2021); Fla. Stat. § 373.413(2) (2021). Permits

from the state’s water management districts allow for

application of specialized local knowledge, accommodation of unique local characteristics, and greater

efficiency. Again, broader coverage of wetlands under

a WOTUS definition applying the significant nexus

test means fewer such permits are issued solely

through this unique process.

Third, Florida directly accommodates statewide

priorities through its wetland permitting that are not

similarly accommodated, if addressed at all, in the

CWA and its implementing regulations. A prime

example is agriculture. Florida places a high value

on the state’s agriculture industry. See Fla. Stat.

§ 403.927 (2021) (“The Legislature recognizes the

great value of farming and forestry to this state.

. . . ”). Florida law allows for persons engaged in

14

agriculture to impact wetlands if doing so is normal

and customary in the area. See Fla. Stat. § 373.406(2)

(2021). Disputes over the applicability of this important exemption are resolved by the Florida Department

of Agriculture and Consumer Services, giving farmers

a uniquely expert resource to determine what is

normal and customary. See Fla. Stat. § 373.407 (2021).

Florida’s agricultural protections are thus broader

and more protective than their federal counterparts

under the CWA,4 but this protection is meaningless

if the expansion of federal wetlands permitting through

application of the broader significant nexus test covers

previously non-federal wetlands.

Other statutory exemptions exist addressing

Florida’s extensive coastal environment. See, e.g.,

Fla. Stat. § 403.813(b)–(s) (2021) (with various limits,

exempting small docks, small boat ramps, maintenance

dredging, maintenance of insect control structures,

4 Wetlands permitting under section 404 of the CWA contains

an exemption for normal farming. See 33 U.S.C. § 1344(f)(1)(A)

(2022). The CWA agricultural exemption, however, is interpreted

narrowly. See United States v. Huebner, 752 F.2d 1235, 1240–41

(7th Cir. 1985); Avoyelles Sportsmen’s League, Inc. v. Marsh,

715 F.2d 897, 925 n.44 (5th Cir. 1983). It is explicitly limited by

33 U.S.C. § 1344(f)(2) (2022), known as the recapture provision,

which provides that the normal farming exemption does not

apply to “any activity having as its purpose bringing an area of

the navigable waters into a use to which it was not previously

subject.” The federal exemption is further circumscribed by

restrictions against “abandonment” of prior converted cropland,

which can cause a loss of the exemption over time, absent

ongoing active farming. See 84 Fed. Reg. 5154, 5158 (summarizing

history of prior converted cropland exclusion and describing

abandonment). The result is that the CWA exemption is primarily

limited to historical uses, while Florida’s agricultural exemptions

apply to ongoing operations.

15

installation of aids to navigation, swales, small bridges,

subaqueous transmission lines, connecting seawalls,

removal of aquatic plants and detrital material,

floating vessel platforms, and boatlifts). Florida regulations provide similar exemptions. See, e.g., Fla. Admin.

Code. r. 62-330.051 (2022) (with limitations, not requiring permits, inter alia, for minor roadway safety

construction, boating-related work, certain pipes and

culverts, paths for pedestrians, bicycles, and golf carts,

and shoreline stabilization structures). These specific

exemptions are typically placed in rule with limits

on the scope of the exemption based on a determination

that, done within the prescribed scope, the exemption

possesses no significant environmental risk. See, e.g.,

Fla. Admin. Code r. 62-330.051(4)(b) (2022) (limiting

exemption for culverted roadway crossings to less than

24 inch diameter pipes and a construction project area

of one acre). Broader federal jurisdiction not recognizing these exemptions undermines the chief benefit

of these exemptions if permittees must seek a CWA

section 404 permit for the same activities.

In some cases, broader coverage of waters under

the CWA, explicitly constrains state jurisdiction. See,

e.g., Fla. Stat. § 373.4146(3) (2021) (in statute authorizing assumption of federal permitting under section

404 of the CWA, allowing application of state law to

federal waters but only to the extent state law “does

not conflict with federal requirements.”); Fla. Stat.

§ 403.703(35) (2021) (defining solid waste as sludge

unregulated under the federal Clean Water Act or

Clean Air Act); Fla. Stat. § 403.7045 (2021) (prohibiting regulation under state resource recovery and

management act of suspended solids and dissolved

materials discharges which are point sources requiring

16

permits under the Clean Water Act); Fla. Stat.

§ 403.7047 (2021) (exempting fossil fuel combustion

products that are beneficially reused from coverage

as solid or hazardous waste but not applying exemption

to any federal law, including CWA National Pollutant

Discharge Elimination System permits).

Florida’s unique administrative process provides

for more accountability and transparency regarding

state water permitting and rulemaking, as well as a

more meaningful ability to administratively challenge

state rules and permits. For example, if Florida seeks

to adopt a more stringent water quality standard than

a standard adopted by federal regulations, the Florida

Department of Environmental Protection must have

the standard approved by the Governor and Florida

Cabinet. See Fla. Stat. § 403.061(32) (2021). Adoption

of water quality standards requires approval of the

Florida’s Environmental Regulation Commission, an

authority independent of the Secretary of the Florida

Department of Environmental Protection. See Fla.

Stat. § 403.804(1) (2021); Fla. Stat. § 403.805(1) (2021).

Florida permit applicants have greater flexibility for

obtaining environmental permits under state law. See,

e.g., Fla. Stat. § 403.201 (2021) (allowing the Florida

Department of Environmental Protection to grant

variances from environmental statutes but only to

the extent such variances do not conflict with federal

requirements); Fla. Stat. § 120.542(2) (2021) (allowing

administrative agencies to grant variances from rules

that “create a substantial hardship or would violate

principles of fairness” so long as the purpose of the

underlying statute is achieved). These protections

are not available for federally-based permits.

17

Florida is not the only state with wetland

regulations independent from federal law. See § 13:1.

Introduction, L. of Wetlands Reg. § 13:1 (2021). See,

e.g., Conn. Gen. Stat. Ann. § 22a-36 et seq. (2021)

(Connecticut); Del. Code Ann. tit. 7, § 6601 (2021)

(Delaware); Ga. Code Ann. § 12-5-280 (2021) (Georgia);

Iowa Code Ann. § 456B.13 (2021) (Iowa); La. Stat.

Ann. § 49:214.28 (2021) (Louisiana); Me. Rev. Stat.

tit. 38, § 480-C (2021) (Maine); Md. Code Regs.

26.23.02.01 (2021) (Maryland); Mass. Gen. Laws Ann.

ch. 131, § 40 (2021) (Massachusetts); Mich. Comp.

Laws Ann. § 324.30301 (2021) (Michigan); Minn. Stat.

Ann. § 103G.005 (2021) (Minnesota); Miss. Code. Ann.

§ 49-27-1 (2021) (Mississippi); N.H. Rev. Stat. Ann.

§ 482-A:11 (2021) (New Hampshire); N.J. Stat. Ann.

§ 13:9B-1 (2021) (New Jersey); N.Y. Env’t Conserv.

Law § 24-0703 (2021) (New York); 15A N.C. Admin.

Code 2H.1301 (2021) (North Carolina); Or. Admin. R.

141-085-0680 (2021) (Oregon); 2 R.I. Gen. Laws Ann.

§ 2-1-18 (2021) (Rhode Island); S.C. Code Ann. § 4839-150 (2021) (South Carolina); 10 V.S.A. Ch. 37,

§ 905(b) (2021) (Vermont); Va. Code Ann. § 62.1-44.2

(2021) (Virginia); Wash. Rev. Code Ann. § 90.48.080

(2021) (Washington); W.S. § 35-11-309(b) (2021)

(Wyoming). These laws, like Florida’s wetland laws,

are sure to be restricted by an expansion of the

federal WOTUS definition using the vague and openended significant nexus test.

C. Federal Water Regulations Impede

Florida’s Efforts to Streamline the

Regulatory Process for Certain Types of

Projects.

Overlap of federal permitting has provided a

constant challenge for Florida’s efforts to streamline

18

permitting. See, e.g., Fla. Stat. § 373.4144(1) (2021)

(stating legislative desire to “eliminate overlapping

federal regulations and state rules that seek to

protect the same resources and avoid duplication of

permitting between the United States Army Corps of

Engineers and the [D]epartment [of Environmental

Protection].”); Fla. Stat. § 403.0885(1) (2021) (“The

Legislature finds and declares that it is in the public

interest to promote effective and efficient regulation

of the discharge of pollutants into waters of the states

and eliminate duplication of permitting programs by

the United States Environmental Protection Agency

under s. 402” of the CWA.). Logically, a broader definition of Waters of the U.S. necessarily increases the

likelihood of overlapping state and federal jurisdiction

of the same waters, frustrating Florida’s legislative

intent.

Florida has attempted to streamline the permitting

process in several ways, all of which are complicated

by broader federal permitting. For example, Florida

has a voluntary process to create ecosystem management agreements “regarding any environmental

impacts with regulated entities to better coordinate

the legal requirements and timelines applicable to a

regulated activity, which may include permit processing, project construction, operations monitoring,

enforcement actions, proprietary approvals, and compliance with development orders and regional and local

comprehensive plans.” Fla. Stat. § 403.0752(1) (2021).

These agreements must be consistent with federal

regulation, so that when federal regulation expands,

Florida entities attempting to negotiate such an agreement are constrained. Fla. Stat. § 403.0752(9) (2021).

19

Florida also allows for streamlined permitting

for large economic development projects that, once

triggered, require state agencies to make final

determinations on permits within their jurisdiction

in 90 days and require that challenges to such

permits come before an administrative law judge and

be resolved in a process lasting approximately 120

days. Fla. Stat. § 403.973(1), (8), (14) (2021). Federal

permits, however, cannot be required to fall within

this streamlined process. See Fla. Stat. § 403.973(8),

(9) (2021) (excepting federal permits from otherwise

mandatory permit issuance timelines and streamlining). An expansion of federal permitting therefore

minimizes the utility of this process.

Vague federal permitting programs are an outlier

to another permitting provision unique to electric

generating facilities and transmission lines, in part

II of chapter 403, Florida Statutes. See Fla. Stat.

§ 403.503(2) (2021) (“The Legislature finds that the

efficiency of the permit application and review process

at both the state and local level would be improved

with the implementation of a process whereby a permit

application would be centrally coordinated and all

permit decisions could be reviewed on the basis of

standards and recommendations of the deciding

agencies.”). Strict timelines and procedures are imposed

on state and local agencies for reviewing and acting

upon these applications through a single coordinated

process for larger power plants and long transmission

lines. The review encompasses pertinent environmental

requirements, including protection of water resources.

See Fla. Stat. § 403.5064 (2021); Fla. Stat. § 403.5065

(2021); Fla. Stat. § 403.5066 (2021) and Fla. Stat.

§ 403.509 (2021) (describing process and timelines).

20

Federal permits cannot be so constrained, so expansion

of federal permitting expands the scope of the process

that must occur outside of Florida’s power plant siting

process.

D. State Assumption of 404 Permitting Is

Inhibited by the Significant Nexus Test.

The CWA explicitly allows for delegation to

qualifying states of the federal permitting program

under section 404. See 33 U.S.C. § 1344(g) (2022).

Interested states must apply for and receive approval

to operate the program. See 33 U.S.C. § 1344(h)

(2022). Once approved, operation of the state program

remains subject to oversight by EPA. See 33 U.S.C.

§ 1344(j) (2022).

Unlike the continuous surface connection standard

articulated in the Rapanos plurality, 547 U.S. at 742,

the significant nexus test is relatively subjective.

This subjectivity is apt to constrain states, like

Florida, operating a delegated permitting program

under section 404 of the CWA and discourage states

who might otherwise seek delegation of the program.5

The significant nexus test burdens the states with

the same case-by-case determination that the federal

agencies employ, unless of course, the applicant

acquiesces to federal wetland jurisdiction. See Florida

Department of Environmental Protection’s Frequently

Asked Questions (FAQ) and Answers (available at:

https://floridadep.gov/water/submerged-lands5 Three states have been approved to operate the CWA Section

404 permitting program. See 85 Fed. Reg. 83,533 (Dec. 22,

2020) (Florida); 59 Fed. Reg. 9,933 (Mar. 2, 1994) (New Jersey);

49 Fed. Reg. 38,947 (Oct. 2, 1984) (Michigan).

21

environmental-resources-coordination/content/state404-program-frequently) (stating “To provide certainty,

streamlining, and efficiency, DEP will consider that

any wetlands or other surface waters delineated in

accordance with Chapter 62-340, F.A.C., that are

regulated under Part IV of Chapter 373, F.S. could

be considered WOTUS, and will treat them as if they

are, unless the applicant specifically requests a

WOTUS determination and provides information

clearly demonstrating why they believe one or more

waters are not WOTUS. The ‘Information Required

for a WOTUS Determination in State-assumed Waters’

form is provided to assist applicants in providing the

necessary information.”)

Implementing a relatively subjective and amorphous standard under federal oversight is not an

approval most state regulatory agencies are likely to

seek. When Florida assumed permitting under the

federal CWA 404 program, it was subject only to the

continuous surface water connection standard, as

implemented through the Navigable Waters Protection

Rule. Given Florida’s legislatively-stated desire to avoid

duplicative permitting and streamline regulatory processes, it seems unlikely Florida would have pursued

approval to implement the section 404 program if the

significant nexus test had been in the applicable

federal rule at the time Florida sought approval. An

expansive and relatively subjective standard, like the

significant nexus test, will be more likely to discourage

state assumption of the 404 permitting program.

Congress could not have had this result in mind

when it provided authority for states to implement

section 404 of the CWA.

22

CONCLUSION

For the reasons stated, the judgment of the U.S.

Court of Appeals for the Ninth Circuit should be

reversed.

Respectfully submitted,

TERRY P. COLE

COUNSEL OF RECORD

GREGORY M. MUNSON

DEBORAH K. MADDEN

GUNSTER LAW FIRM

215 S. MONROE STREET, SUITE 601

TALLAHASSEE, FL 32301

(850) 521-1980

GMUNSON@GUNSTER.COM

COUNSEL FOR AMICI CURIAE

APRIL 18, 2022