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

No. 21-454

In the Supreme Court of the United States

Michael Sackett & Chantell Sackett,

Petitioners,

v.

Environmental Protection Agency, et al.

Respondents.

On Writ of Certiorari to

The United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE FARM BUREAUS OF ARKANSAS, ARIZONA,

CALIFORNIA, COLORADO, ILLINOIS, INDIANA, IOWA,

KANSAS, MINNESOTA, MISSOURI, NEBRASKA, NEW MEXICO,

NORTH CAROLINA, NORTH DAKOTA, OHIO, OKLAHOMA,

SOUTH DAKOTA, TENNESSEE, TEXAS, AND VIRGINIA AS

AMICI CURIAE SUPPORTING PETITIONERS

Philip Jacob Parker, Jr.

North Carolina Farm

Bureau Federation, Inc.

5301 Glenwood Avenue

Raleigh, NC 27612

(919) 782-1705

Counsel for the North Carolina

Farm Bureau Federation, Inc.

Kari E. Fisher

California Farm Bureau

Federation

2600 River Plaza Drive

Sacramento, CA 95833

(916) 561-5666

Counsel for the California

Farm Bureau Federation

Michael B. Kimberly

Counsel of Record

Karen Lin

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for all amici

Wendee Grady

The Kansas Farm Bureau

Legal Foundation

2627 KFB Plaza

Manhattan, KS 66503

(785) 587-6101

Counsel for the Kansas Farm

Bureau Legal Foundation

Additional counsel listed on inside cover

Chad Endsley

Leah Curtis

Amy Milam

Ohio Farm Bureau Federation

280 N High Street

Sixth Floor

Columbus, OH 43215

(614) 246-2400

Counsel for the Ohio Farm

Bureau Federation

Stephanie McMullen

Texas Farm Bureau

7420 Fish Pond Road

Waco, TX 76710

(254) 751-2280

Counsel for the Texas

Farm Bureau

Christina L. Gruenhagen

Parker & Geadelmann, P.L.L.C.

5400 University Avenue

West Des Moines, IA 50266

(515) 225-5410

Counsel for the Iowa Farm

Bureau Federation

i

TABLE OF CONTENTS

Table of Authorities ..................................................... iv

Introduction and Interests of the Amici Curiae ............ 1

Argument ......................................................................3

A. Over-federalization of water-resources

regulation has led to absurd and

unsustainable results ..........................................3

B. State and local governments are wellsuited to regulate land- and water-use............... 12

C. State and local regulations provide robust

protections for water resources ......................... 17

Conclusion ..................................................................27

Appendix A (identities of the amici) ............................ 1a

ii

TABLE OF AUTHORITIES

Cases

Hairston v. Danville & W.R. Co.,

208 U.S. 598 (1908) ........................................ 12, 13

Hess v. Port Authority Trans-Hudson Corp.,

513 U.S. 30 (1994) .................................................. 3

Rapanos v. United States,

547 U.S. 715 (2006) ............................. 1, 2, 3, 10, 12

Solid Waste Agency of New Cook County v.

Army Corps of Engineers,

531 U.S. 159 (2001)..................................... 3, 19, 23

Statutes and regulations

33 U.S.C.

§ 1251(b).............................................................. 1, 3

§ 1319 .................................................................... 10

§ 1342(a) .................................................................9

§ 1344(f) ..................................................................9

§ 1365 .................................................................... 10

80 Fed. Reg. 37053 (June 29, 2015) ............................. 4

87 Fed. Reg. 1676 (Jan. 12, 2022) .............................. 10

Ariz. Rev. Stat. Ann.

§ 49-201(50).................................................... 17, 18

§ 49-221 ................................................................ 18

iii

Statutes and regulations—continued

Cal. Water Code

§ 13000 ................................................................. 18

§ 13050(e) ....................................................... 18, 19

§ 13140 .................................................................. 19

§ 13225 .................................................................. 19

§ 13240.................................................................. 19

§ 13260 ................................................................ 20

§ 13263................................................................. 20

§ 13269 ................................................................ 20

Iowa Code

§ 455B.171............................................................ 20

§ 455B.176A .................................................... 20, 21

§ 455B.183(1)(b).................................................... 21

§ 456B.12 ........................................................ 21, 22

§ 456B.13 ........................................................ 21, 22

§ 460.203 .............................................................. 21

Iowa Admin. Code

r. 567-61.2 ............................................................. 21

r. 567-61.3 ....................................................... 20, 21

r. 567-65................................................................ 21

Kan. Stat.

§ 65-161(a) ............................................................24

§ 65-164 ................................................................24

§ 82a-907 ..............................................................24

Kan. Admin. Reg.

§ 28-16-28e ...........................................................24

§ 28-16-28b24

N.C. Gen. Stat.

§ 143-211(a) ...........................................................22

§ 143-212(6) ..........................................................23

§ 143-215.1 ............................................................23

iv

Statutes and regulations—continued

15A N.C. Admin. Code

§ 02B.0202............................................................23

§ 02H.1301 ......................................................23, 24

§ 02H.1401 ............................................................24

Ohio Admin. Code

§ 3745-1-04. ......................................................... 26

§ 3745-1-50. ......................................................... 26

§ 3745 901:13-1-01 ............................................... 26

§ 3745 1501:3-12-01 ............................................. 26

Ohio Rev. Code Ann.

§ 6111.01 ...............................................................25

§ 6111.02 .............................................................. 26

§ 6111.021 ............................................................ 26

§ 6111.028 ............................................................ 26

§ 6111.03 ........................................................ 25, 26

§ 6111.037 ...................................................... 25, 26

§ 6111.04 ...............................................................25

§ 6111.041 .............................................................25

S.D. Codified Law § 34-A-2-2(12) .............................. 26

S.D. Admin. R.

§ 74:51:01:01. ........................................................ 27

§ 74:51:01:11. ........................................................ 27

Other authorities

Craig Anthony Arnold, Clean-Water Land

Use: Connecting Scale and Function, 23

Pace Envtl. L. Rev. 291 (2006) .................. 14, 15, 16

Richard Briffault, Smart Growth and American

Land Use Law, 21 St. Louis. U. Pub. L. Rev.

253 (2002) ............................................................ 16

v

Other authorities—continued

Sara C. Bronin, The Quiet Revolution Revived:

Sustainable Design, Land Use Regulation, and

the States, Minn. L. Rev. 231 (2008) ...................... 16

California Water Boards, Watershed Management, perma.cc/TN78-SKN5 ................................ 20

California Water Boards, Wetland Riparian Area

Protection Policy, perma.cc/ER5C-3B84 ............... 19

E.P.A., Economic Analysis for the Clean Water

Act Section 40 Section 401 Certification Rule

(May 28, 2020)...................................................... 15

Erosion of Exemptions and Expansion of

Federal Control—Implementation of

the Definition of Waters of the United

States Before the S. Comm. on Env.

and Public Works Subcommittee on

Fisheries, Water and Wildlife 114th

Cong. (2016) (testimony of Jody

Gallaway) .......................................... 6, 9, 10, 12, 14

Marci A. Hamilton, The Constitutional Limitations on Congress’s Power Over Local Land

Use: Why the Religious Land Use and Institutionalized Persons Act Is Unconstitutional, 2

Alb. Gov’t L. Rev. 366 (2009) ................... 12, 13, 16

Iowa Dept of Agriculture & Land Stewardship,

Iowa Water Quality Initiative 2020 Annual

Report .............................................................. 21, 22

Iowa Department of Agriculture & Land Stewardship, Iowa Water Quality Initiative 2021 Annual Report ............................................................22

vi

Other authorities—continued

Iowa Dep’t of Agriculture & Land Stewardship,

Ag Drainage Well Closure Assistance Program, perma.cc/E8BV-BQRE................................. 21

Iowa Dep’t of Agriculture & Land Stewardship et

al., Iowa Nutrient Reduction Strategy 2018-19

Annual Progress Report .........................................22

Iowa Nutrient Research and Education Council,

Crop Survey Results for 2020 (2021),

perma.cc/D6M7-PMW9 ........................................22

Jerrold A. Long, Sustainability Starts Locally:

Untying the Hands of Local Governments to

Create Sustainable Communities, 10 Wyo.

L. Rev. 1 (2010) ..................................................... 16

Kan. Dep’t of Health & Envt., Kansas Nonpoint

Source Pollution Management Plan, 2019........24, 25

Kansas Water Office, Kansas Water Authority

2022 Annual Report to the Governor and

Legislature .............................................................25

Ltr. from Lee A. Norman, M.D., Secretary of

Kansas Dep’t of Health & Environment, to

Radhika Fox and Jaime A Pinkham, Re:

Docket EPA-HQ-OW-2021-0328-001 (Oct.

4, 2021) .......................................................... 14, 15

Mem. of Understanding Between the Cal. Envt’l

Protection Agency and the Cal. Resources

Agency for the Implementation of the Framework for Protecting California’s Watersheds at

4 (rev. Nov. 30, 2004), perma.cc/33RS-2RVC...... 20

vii

Other authorities—continued

National Agricultural Statistics Services,

USDA, Land Use Practices, Results from

the 2017 Census of Agriculture ..............................22

Michael C. Pollack, Land Use Federalism’s

False Choice, 68 Ala. L. Rev. 707 (2017) .......... 14, 15

San Francisco Estuary Institute & Aquatic Science Ctr., Technical Memorandum No. 2:

(rev. Sept. 1, 2012) ................................................ 19

INTRODUCTION AND INTERESTS

OF THE AMICI CURIAE 1

Amici curiae are twenty state farm bureaus with an

interest in effective, efficient, and commonsense rules for

the protection and management of the nation’s water and

land resources.2 Agriculture is inherently and inextricably

tied to the earth. All farmers and ranchers—including

amici’s members—have a strong interest in clear and sensible regulation of water resources. That is why they historically have been at the forefront of balanced and responsible efforts to protect such resources. Many of these

efforts are conducted in conjunction with state and local

governments, who have long had primary responsibility

for regulating land and water use. Indeed, when Congress

enacted the Clean Water Act (CWA) in 1972, it expressly

intended 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).

In the decades since the CWA’s enactment, however,

the federal government has attempted to increase its authority by regulating features that are wholly intrastate

and that often are not recognizable as water bodies at all,

deeming them against both plain text and commonsense

to constitute “waters of the United States.” Even after

the Court admonished the federal government for its

overly expansive interpretation of “waters of the United

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

the federal government has continued to extend its

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

part, and no one other than amici, their members, or their counsel

funded the preparation or submission of this brief. Blanket consents

to the filing of amicus briefs are on file with the Clerk.

1

2

A list of amici is set forth in Appendix A.

2

regulatory reach over entirely local land and water features. Seizing upon the ambiguous “significant nexus”

test from Justice Kennedy’s concurring opinion in Rapanos, federal agencies have asserted jurisdiction over

isolated wetlands (like those at issue in this case), to say

nothing of dry ditches and even tire ruts—features that no

reasonable person would consider a water of any kind, let

alone one “of the United States.”

The result is a federalized regulatory system that

bears no resemblance to the model of cooperative federalism that Congress contemplated and preserved in 1972.

This intrusion by the federal government into vast swaths

of state lands and waters has led to adverse impacts and

hardships on amici’s members. Many, if not most, routine

farm operations now require farmers and ranchers first to

seek the permission of federal bureaucrats, at a substantial cost of time and money.

Congress had good reason to limit federal jurisdiction

under the CWA and to preserve the authority of States

and localities over land and water resources. State and local governments are better suited to assess, regulate,

monitor, and make decisions about land and water use

given their relatively smaller geographical scope and their

closer relationship and access to the land, water, and communities being regulated.

Moreover, States have shown that they are capable

and willing to take on these responsibilities. As the experiences of amici in their respective States show, States

have enacted their own environmental regulations and

programs that often provide broader protections than the

CWA for the water resources within their borders and that

address the particular geographical, climatic, economic,

and social characteristics of their states.

Congress intended these state laws to be the primary

mode for regulating water resources and to be supplemen-

3

ted—not supplanted—by federal jurisdiction over “waters of the United States.” This Court should adopt a reasonable definition of “waters of the United States” that

restores the balance intended by Congress in the CWA.

ARGUMENT

A. Over-federalization of water-resources regulation

has led to absurd and unsustainable results

Since the Nation’s founding, regulation of land and

water use has been “a quintessential state and local

power.” Rapanos, 547 U.S. at 738. See also Solid Waste

Agency of New Cook County v. Army Corps of Engineers,

531 U.S. 159, 174 (2001) (recognizing “the State’s traditional and primary power over land and water use”). As

the Court elsewhere has put it, “regulation of land use [is]

a function traditionally performed by local governments.” Hess v. Port Authority Trans-Hudson Corp., 513

U.S. 30, 44 (1994). Thus, in enacting the CWA, Congress

expressed an intent not to overturn but rather to “recognize, preserve, and protect the primary responsibilities

and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use * * * of land and

water resources.” 33 U.S.C. § 1251(b).

In the ensuing decades, however, the federal government has displaced States from their traditional role as exclusive land-use regulators by asserting statutory jurisdiction under the CWA over ever-increasing expanses of

land and intrastate water. In the absence of a clear and definitive test for determining whether a land feature constitutes a “water of the United States” (WOTUS) subject

to federal jurisdiction under the CWA, the Environmental

Protection Agency and U.S. Army Corps of Engineers

have relied on the nebulous “substantial nexus” test from

Justice Kennedy’s concurrence in Rapanos. Under that

test, the EPA and Corps have essentially limitless regulatory authority.

4

The one-size-fits-all “substantial nexus” test has

prompted federal regulators often to make jurisdictional

determinations based on factors that are meaningless because of the particular area’s geography and climate. For

example, federal agencies have oftentimes relied on the

presence of a bed, banks, and an ordinary high-water mark

to characterize a “tributary” of a navigable water. See 80

Fed. Reg. 37053, 37076-78, 37105-06 (June 29, 2015).

While the presence of these features may typically indicate regular flow in humid climates, that is not the case in

arid lands in the West. Due to the highly erodible nature

of the soil in the West, lack of vegetation, and enormously

variable precipitation, these physical characteristics may

form in the landscape after a single rain event and may

persist despite never carrying water again. But federal

regulators, applying their categorical rules, have not hesitated to deem such features to be WOTUS.

The experience in Arizona bears this out. Irrigation

ditches are used intermittently to channel water from

larger sources of water, such as irrigation canals or truly

navigable waters, to agricultural fields or storage. But

sometimes during large rain events, they may produce return flows that send water back to those sources. Congress could not have contemplated that usually dry, intermittently-used irrigation ditches would be considered

“waters of the United States.” But under rules prevailing

for most of the past 50 years, the great majority of ephemeral drainage features and ditches on farmland and pastures have been regulated as jurisdictional tributaries.

For example, the Redfield Canyon Wash in southeastern Arizona (Figure 1, next page) has a high-water mark

and ultimately runs into the San Pedro River (Figure 2).

But it runs only during flood events. Minor or normal rainfall events are not enough to sustain water flow in the

wash. A vast majority of the time, the wash looks as it is

pictured below: dry land with desert vegetation and no

5

surface water connection to any body of water. Under the

agencies’ standards that have historically prevailed, it

nonetheless is a “water of the United States.”

Figure 1. Redfield Canyon Wash

Figure 2. The San Pedro River

6

Making matters worse, EPA’s and the Corps’ overbroad definitions and criteria often have been applied by

federal bureaucrats sitting in remote offices, looking at

mere computer screens. These distant analysts rely on dubious interpretations of satellite images and other nonpublic surveillance data, often without ever setting foot in

the field or putting eyes on the “water” features over

which they purport to assert jurisdiction. See, e.g., Jody

Gallaway, Testimony Submitted for the Record on “Erosion of Exemptions and Expansion of Federal Control—

Implementation of the Definition of Waters of the United

States” before the S. Comm. on Env. and Public Works

Subcommittee on Fisheries, Water and Wildlife 114th

Cong. (May 24, 2016) at 4, perma.cc/HCQ4-6AGF

(Gallaway Testimony). In one instance, a Corps analyst

reviewing an aerial photo insisted that exposed lava rock

be mapped as a wetland because, based on her interpretation of the photo, it looked like a wetland. Id. at 5.

More examples abound, illustrating just how far the

federal government has strayed from the textual limitation of its jurisdiction to “waters of the United States.”

In recent years, the Corps has asserted jurisdiction over:

Figure 3: A small depression on a dirt road

7

Figure 4. Human created tire ruts

Figure 5. More human created tire ruts

8

Figure 6. Pits dug to test soil percolation

Figure 7. A ditch exhibiting an ordinary high water mark

The practical costs of the federal government’s overreaching cannot be overstated. Once a feature has been

deemed a “water of the United States” subject to federal

9

jurisdiction, regulated entities must obtain a permit from

the Corps to discharge dredged or fill material or any other

pollutant—which includes dirt and rocks. In other words,

once a feature is declared a WOTUS, landowners must secure a federal permit to undertake essentially any activity

in or around the feature, including not only land clearing

and construction, but also basic agricultural activities

like driving a tractor over the feature or applying fertilizer

to and around it. 33 U.S.C. § 1342(a).3

Even absent a definitive determination of CWA jurisdiction, the prevailing regime has had a tremendously

costly chilling effect on land use in light of the vagueness

of the applicable standards. Consider this photo:

Figure 8. Small “depressional wetland” or puddle?

The costs of dealing with such uncertainty are very

real. If landowners choose to play it safe and seek a

Although 33 U.S.C. § 1344(f)(1) exempts normal farming practices

from the permitting requirement for dredge and fill materials under

Section 404 of the CWA, the Corps has issued landowners Letters of

Inquiry and cease and desist orders for farming their property. See

Gallaway Testimony at 7-10.

3

10

federal permit to undertake basic farming activities, they

face enormous, sometimes crushing, expenses. As the

plurality in Rapanos recognized almost two decades ago,

“[t]he average applicant for an individual permit spends

788 days and $271,596 in completing the process, and

the average applicant for a nationwide permit spends 313

days and $28,915—not counting costs of mitigation or

design changes.” Rapanos, 547 U.S. at 719 (plurality).

Costs in terms of both time and money are far greater today. See Gallaway Testimony at 14.

The burdens are even greater if the landowner

chooses to take the risk of foregoing a permit and the

Corps later determines that the subject land contains a

“water of the United States.” The agencies and private

citizens may enforce the CWA through civil and administrative actions for penalties of nearly $60,000 per violation per day and for injunctive relief. 33 U.S.C.

§§ 1319(b), (d), (g), 1365; 87 Fed. Reg. 1676, 1678 (January 12, 2022). The Act also provides for criminal penalties against violators: negligent violations bring penalties

of up to an additional $25,000 per day and one year of imprisonment, while knowing violations can trigger penalties up to $50,000 per day and three years’ imprisonment. 33 U.S.C. § 1319(c)(1)-(2).

And because there is at least a possibility that the federal government will characterize (and often has characterized) just about any puddle or rut as a “water of the

United States,” these dynamics prevail across “immense

stretches of interstate land.” Rapanos, 437 U.S. at 738.

Indeed, a map of Arizona’s intermittent streams (shown

in yellow on the next page) shows the potential for EPA

and the Corps to assert jurisdiction over virtually the entire State. That is in itself remarkable, given that most of

Arizona is a desiccated desert.

11

Figure 8. Intermittent washes and

streams in Arizona (depicted in yellow)

Accordingly, under the significant nexus test, nearly

all land use and development throughout the Nation may

be subject to costly and onerous federal requirements and

permit processes under the CWA. Amici’s members must

seek constant input and approval from the federal government to engage in the most basic agricultural activities.

That means that federal regulators often can effectively

12

dictate to farmers and ranchers which crops can be grown,

what animals can be raised, and in what location and in

what quantity. Gallaway Testimony at 10. It means that

farmers cannot plow or change to certain crops in response to droughts or other climate changes without first

asking the Corps and EPA for permission. Id. at 9-10. And

it means that the numerous soil conservation, stormwater

management, wildlife habitat, flood control, and nutrient

management activities in which farmers often engage

may be foregone because of the expense of applying for a

federal permit. That is not the “cooperative federalism”

arrangement that Congress envisioned. See Rapanos, 547

U.S. at 755-56.

B.

State and local governments are well-suited to

regulate land- and water-use

All that we have said so far underscores the importance and wisdom of leaving land- and water-use regulation principally to the States. This division of power between the federal and state governments at the Founding,

and its reaffirmation in the preamble to the CWA, was no

historical accident, but rather reflects the relative institutional competence of each level of government.

1. The relatively smaller geographical scale of States

and localities enables them to make regulations and landuse decisions that are tailored to their regional geographies, climates, and economies. Decisions about how land

and water should be used and regulated necessarily require consideration of a wide range of factors—including

“the resources, the capacity of the soil, the relative importance of industries to the general public welfare, and

the long-established methods and habits of the people.”

Hairston v. Danville & W.R. Co., 208 U.S. 598, 606

(1908). Accord Marci A. Hamilton, The Constitutional

Limitations on Congress’s Power Over Local Land Use:

Why the Religious Land Use and Institutionalized Persons

13

Act Is Unconstitutional, 2 Alb. Gov’t L. Rev. 366, 387-88

(2009) (land use planning “necessarily requires the consideration of a diverse set of factors tied to local geography, community needs, and the area’s history and vision”). The United States encompasses 2.43 billion

acres—from the redwood forest to the Gulf Stream waters, and all of the other diverse landscapes in between.

Put simply, the factors and considerations on which land

and water use decisions should be based “vary so much.”

Hairston, 208 U.S. at 606.

For example, dry western states—like the home State

of the Arizona Farm Bureau Federation—face very different issues regulating and allocating water than wetter

eastern states—like the home State of the North Carolina

Farm Bureau. Densely populated, urban areas face different land- and water-use problems than do sparsely populated, rural areas. And land-use planning for communities

in and near mountains must account for different hazards

and challenges than those on flat plains.

Similarly, States in which agricultural production is

the primary economic activity must account for different

needs and uses as compared with States where (say) manufacturing is the primary industry. And some States value

open space preservation more than others.

A federal, one-size-fits-all regulatory regime cannot

address the heterogeneous needs, goals, and issues of the

different regions of the country. State and local governments, on the other hand, are able to design approaches

that are suitable and responsive to the specific characteristics and needs of their land and communities.

2. State and local governments have the knowledge

and expertise to undertake these tasks in a sensible and

effective way. They have greater familiarity and information about the unique characteristics of the land, the

relevant weather and climate patterns, and their intera-

14

ction with the land. See Craig Anthony (Tony) Arnold,

Clean-Water Land Use: Connecting Scale and Function, 23

Pace Envtl. L. Rev. 291, 337 (2006); Michael C. Pollack,

Land Use Federalism’s False Choice, 68 Ala. L. Rev. 707,

718-19 & n.54 (2017). Thus, for example, western States

and localities would not mistake dry erosional features for

tributaries. See Ltr. from Lee A. Norman, M.D., Secretary

of Kansas Dep’t of Health & Environment, to Radhika

Fox and Jaime A Pinkham, Re: Docket EPA-HQ-OW2021-0328-001 at 6-7 (Oct. 4, 2021) (“Norman Letter”)

(explaining characteristics of Kansas streams, tributaries, and ditches). And where more information may be

needed, local government officials can put their feet on

the ground and their eyes on the land with considerably

greater ease—something that makes them more in-touch

and effective than distant federal bureaucrats. There’s no

mistaking a lava rock for water when you’re looking at it

with your own eyes.

States and localities also have expertise and data

about the land use patterns, practices, and development

in surrounding parcels. Arnold, supra, at 337; Pollack,

supra, at 718-719. Perhaps unlike many other regulators,

state and local government officials in predominantly

agricultural States have experience “in evaluating farm

practices, activities, and crop rotation decisions based on

market conditions.” Gallaway Testimony at 7. Accordingly, they can more accurately determine whether certain

practices—such as fallowing fields or planting different

crops—are a change in land use, and they can more consistently apply standards across parcels.

Finally, States and localities possess knowledge

about the historical, cultural, social, and economic contexts in which a particular project is situated. Arnold, supra, at 337; Pollack, supra, at 718-19.

3. Because local governments have a more limited geographical scope and more specific and relevant expertise,

15

they can also process land use decisions more efficiently

than federal officials. See Arnold, supra, at 337; Pollack,

supra, at 718-19. Federalizing land and water use decisions results in a massive volume of applications that becomes bottlenecked at the federal agencies. The Corps issues an average of over 50,000 general CWA Section 404

permits and over 2,500 individual permits each year, to

say nothing of the additional number that are either rejected or abandoned due to the time and cost to pursue

them. U.S. E.P.A., Economic Analysis for the Clean Water Act Section 401 Certification Rule at 9 (May 28,

2020), perma.cc/9LBT-ZMRM. It is of little surprise then

that, as noted above, applicants often wait years to receive decisions from the Corps—all the while incurring

the significant costs of idle delay. Those costs are also imposed on the broader economy and society, which are deprived of the benefits of productive use of the land, such

as the production of crops.

Related, the institutional competencies and capacities of local governments enable them to respond quicker

to changing conditions and to innovate solutions to landand water-use problems. These factors have become all

the more important in recent years as climate and population changes are expected to continue to affect land and

water use needs with increasing intensity, and vice versa.

For example, changes in climate and water use have resulted in once-flowing streams becoming ephemeral. See

Norman Letter, supra, at 5-6. State and local officials,

who are closer to the ground, are in a better position than

federal officials in ascertaining these changes and making

appropriate regulatory adjustments.

Climate and population changes have a particularly

strong impact on agriculture. Changes in temperatures

and extreme weather events affect land productivity and

crop sustainability. For example, a five-year drought has

required farmers in the West to change the crops they

16

grow on their land, but those farmers have faced pushback

and delays from the Corps. Requiring farmers to spend

years and tens of thousands of dollars trying to reach federal regulators who are unfamiliar with farming practices

or regional issues jeopardizes individual livelihoods and

our food supply. State and local governments, by contrast,

have the expertise and capacity to respond quicker to

changes and to experiment and develop solutions to

emerging problems. Arnold, supra, at 337.

4. Finally, placing primary responsibility for land and

water use management on the States promotes participatory democracy and gives a voice to those who are most

directly impacted by land use decisions. Arnold, supra, at

328. A home—and particularly a family farm—is one of

the largest and emotional investments someone makes

and, along with the community in which it is situated,

contributes to one’s personal, social, and economic identity. Land and water use regulations and policies affect

people’s homes and communities; they shape “the character, economic health, and success or failures of towns,

cities, and counties.” Hamilton, supra, at 387; see also

Jerrold A. Long, Sustainability Starts Locally: Untying the

Hands of Local Governments to Create Sustainable Communities, 10 Wyo. L. Rev. 1, 20-21 (2010).

Local decisionmaking ensures that local residents’

voices and concerns are heard and taken meaningfully

into account. Local governments are more accessible to

and accountable to their residents, and residents have

more opportunities to participate in local policymaking.

See Arnold, supra, at 328-29; Richard Briffault, Smart

Growth and American Land Use Law, 21 St. Louis. U.

Pub. L. Rev. 253, 268 (2002); Sara C. Bronin, The Quiet

Revolution Revived: Sustainable Design, Land Use Regulation, and the States, Minn. L. Rev. 231, 239 (2008). Accordingly, individuals are more likely to participate in the

17

democratic processes, and government officials are more

likely to be responsive to that participation.

C.

State and local regulations provide robust

protections for water resources

These observations are not academic—history has

shown that State and local governments take seriously

their obligations to regulate land and water use to ensure

responsible stewardship of their natural resources. It is

often assumed that invalidating or curtailing overbroad

federal regulations will allow landowners to do as they

like, free from all constraints. That is simply wrong.

State and local governments have not hesitated to assert their regulatory powers to protect water resources

within their borders, sometimes in ways even more expansive than the federal government. In candor, amici do not

always agree with the wisdom of all those efforts, some of

which suffer from similar infirmities as the federal CWA.

But the point for present purposes is a simpler one—that

even if Congress repealed the Clean Water Act tomorrow,

America’s water resources would remain subject to extensive regulatory protections. Following are a selection of

relevant state and local regulations, illustrative of the

kinds of measures that apply all across the country.

1. Arizona’s jurisdiction over the waters within its

borders extends wider than the federal government’s under the CWA. Arizona has defined “waters of the state”

to include “all waters within the jurisdiction of this state

including all perennial or intermittent streams, lakes,

ponds, impounding reservoirs, marshes, watercourses,

waterways, wells, aquifers, springs, irrigation systems,

drainage systems and other bodies or accumulations of

surface, underground, natural, artificial, public or private

water situated wholly or partly in or bordering on the

state.” Ariz. Rev. Stat. Ann. § 49-201(50).

18

Arizona has taken steps to ensure that its waters receive strong protection, regardless of which way the political pendulum swings at the federal level. For example,

following promulgation of the 2020 Navigable Water

Protection Rule, which narrowed the waters subject to

federal jurisdiction under the federal CWA, Arizona

tasked the State’s Department of Environmental Quality

(ADEQ) with implementing a state-level Surface Waters

Protection Program. Id. § 49-221(G). Using its expertise

and familiarity with the state’s unique hydrology, ADEQ

created a Protected Surface Waters List (PSWL). Id. § 49221(A). If a water meets the definition of “waters of the

United States,” it is automatically included on the PSWL

and subject to the federal regulatory regime. Id. § 49221(G). A water that is not considered a “water of the

United States” under the applicable federal definition

may be included if it meets the definition of a state protected surface water, and if it is, will be subject to ADEQ

water quality and permitting requirements. See id.

Through this program, Arizona ensures that Arizona’s actual waters are protected, while also providing much

needed clarity to landowners.

2. Since 1969, California has regulated the quality of

the waters within its borders under the Porter-Cologne

Water Quality Control Act. See Cal. Water Code § 13000

et seq. The Act provides that “activities and factors which

may affect the quality of the waters of the state shall be

regulated to attain the highest water quality which is reasonable, considering all demands being made and to be

made [to] those waters and the total values involved, beneficial and detrimental, economic and social, tangible and

intangible.” Id. § 13000.

The waters subject to Porter-Cologne are broad. The

State defines “waters of the state” broadly to include

“any surface water or groundwater, including saline waters, within the boundaries of the state.” Cal. Water Code

19

§ 13050(e). In response to court decisions and policy

changes that have recently pared back on federal jurisdiction under the CWA, California has worked to ensure that

no gaps in protection arise. For example, in response to

the holding in Solid Waste Agency of New Cook County

that federal jurisdiction did not extend to isolated wetlands and isolated surface waters, California adopted a

state plan for wetlands that were no longer protected under the Clean Water Act. See California Water Boards,

Wetland Riparian Area Protection Policy, perma.cc/ER5C-3B84. It also developed a new definition of “wetland” that “encompasses the full range of wetland types

commonly recognized in California, including some features not protected under federal law.” California Water

Boards, State Policy for Water Quality Control: State

Wetland Definition and Procedures for Discharges of

Dredged or Fill Material to Waters of the State at 1 (rev.

Apr. 6, 2021), perma.cc/BT8Y-6FKD. In doing so, California took into account its specific variable climate,

landscapes, and ecology. See San Francisco Estuary Institute & Aquatic Science Ctr., Technical Memorandum No.

2: Wetland Definition at 4 (rev. Sept. 1, 2012), perma.cc/8ZBZ-TJRY (“California wetland definition should reflect the natural spatial and temporal variability in wetland extent and condition.”).

California utilizes a network of entities to regulate

extensively the discharge of waste into waters of the

State. The State Water Resources Control Board sets

statewide water quality control policy. Cal. Water Code

§§ 13140-13147. It also oversees the activities of nine Regional Water Quality Control Boards, which are responsible for water quality protection, permitting, inspection,

enforcement, and formulating and adopting water quality

control plans (“basin plans”) within their respective regions. Id. §§ 13225, 13240.

20

Any “person discharging waste, or proposing to discharge waste, within any region that could affect the quality of the waters of the state, other than into a community

sewer system,” must file a report of waste discharge and

obtain the necessary permits from the Regional Water

Board. Id. §§ 13260(a)(1), 13263, 13269.

In fulfilling their responsibilities, the Water Boards

have leveraged their proximity to and relationships with

local stakeholders—including them in planning to set priorities and allocate funds, monitoring projects, developing local goals and performance standards, and reviewing

permit applications. See California Water Boards, Watershed Management, at perma.cc/TN78-SKN5; Mem. of

Understanding Between the Cal. Envt’l Protection Agency and the Cal. Resources Agency for the Implementation

of the Framework for Protecting California’s Watersheds

at 4 (rev. Nov. 30, 2004), perma.cc/33RS-2RVC. These

partnerships have enabled the Water Boards to develop

more geographically sensitive standards and process permits more quickly.

3. Iowa similarly has both broad water quality protections, as well as measures specific to Iowa’s land, economy, and communities.

Like the other States just discussed, Iowa defines

“waters of the state” expansively to include “any stream,

lake, pond, marsh, watercourse, waterway, well, spring,

reservoir, aquifer, irrigation system, drainage system, and

any other body or accumulation of water, surface or underground, natural or artificial, public or private.” Iowa Code

§ 455B.171(41) (emphasis added). And it subjects all of

the waters of the state to regulation.

Iowa imposes numeric water quality standards on all

lakes and wetlands and designated stream segments. Id.

§ 455B.176A(5); Iowa Admin. Code r. 567-61.3(1), (3).

And it subjects all other waters of the state to narrative

21

water quality standards. Iowa Code § 455B.176A(c);

Iowa Admin. Code r. 567-61.3(2). Additionally, all

wastes discharged to any waters of the state “must be of

such quality that the discharge will not cause the narrative or numeric criteria limitations to be exceeded.” Iowa

Admin. Code r. 567-61.2(3). In addition, Iowa protects

certain wetlands. Iowa Code §§ 456B.12, 456B.13. It also

prohibits discharges from a point source to a water of the

state without a permit, and effluent limits must allow the

stream to meet or exceed water quality standards. Id.

§ 455B.183(1)(b)-(c).

In addition to implementing numerous laws and regulations dealing specifically with agriculture-related water management issues,4 Iowa has also innovated to address the specific issues and needs it faces relating to water quality given its position as one of the leading agricultural producers in the nation. One major development is

the Iowa Nutrient Reduction Strategy, and the Iowa Water Quality Initiative, which are implemented by the State

in collaboration with local governments, federal government agencies, and private parties and organizations.

Iowa Dept of Agriculture & Land Stewardship, Iowa Water Quality Initiative 2020 Annual Report at 6. The Strategy assesses the specific factors contributing to Iowa’s

water quality and offers tailored solutions and practices

For example, Iowa has issued hundreds of pages of regulations relating to environmental protection requirements for animal feeding

operations. Iowa Admin. Code r. 567-ch. 65. Additionally, Iowa has

a number of agricultural drainage wells—wells that discharge

cropland tile drainage water to underground aquifers—that were constructed a century ago. Iowa has been working with landowners to

close them and been protecting the areas around them to address contamination. See Iowa Code § 460.203: Iowa Dep’t of Agriculture &

Land Stewardship, Ag Drainage Well Closure Assistance Program,

perma.cc/E8BV-BQRE.

4

22

for Iowa’s farms, businesses, and communities to protect

and improve water quality. As part of the Strategy, the

Iowa Department of Agriculture and Land Stewardship

and its partners work with farmers to educate them about

and help fund land use and water quality practices—such

as cover crops, tillage practices, bioreactors, buffer strips,

saturated buffers, and restored wetlands. Id. at 5.

As a result of Iowa’s efforts, cover crops planted in

Iowa increased from 379,000 acres in 2011 to over 3.1

million acres in 2020. Iowa Nutrient Research and Education Council, Crop Survey Results for 2020 (2021),

perma.cc/D6M7-PMW9; Iowa Dep’t of Agriculture &

Land Stewardship et al., Iowa Nutrient Reduction Strategy 2018-19 Annual Progress Report at 4 (June 2020).

Iowa leads the nation in “reduced tillage” acres—more

than 10.1 million acres—and is third in no-till acres—

more than 8.2 million acres. National Agricultural Statistics Services, USDA, Land Use Practices, Results from

the 2017 Census of Agriculture at 1, perma.cc/3JMYKDC4. Iowa has also increased the number of bioreactors

and saturated buffers in the state. Iowa Department of

Agriculture & Land Stewardship, Iowa Water Quality Initiative 2021 Annual Report at 1. And the State is currently constructing 40 new conservation wetlands. Id.

According to a 2018 statewide LiDAR mapping of just six

types of conservation practices, the value of the long-term

investment by farmers and the public has been estimated

at $6.2 billion. Iowa State University, Iowa Department

of Nature Resources, Iowa BMP Mapping Project.

4. North Carolina has recognized that the “prudent

utilization of” its water and air resources is “essential to

the general welfare” of its people and, as such, has declared that it is the “State’s ultimate responsibility for the

preservation and development of these resources in the

best interest of all its citizens.” N.C. Gen. Stat. § 143211(a). Accordingly, North Carolina has codified its

23

commitment to “maintain, protect, and enhance water

quality in North Carolina.” Id. § 143-211(a).

In carrying out this commitment and responsibility,

North Carolina generally prohibits any person from discharging waste into the waters of the State, unless he or

she has obtained a permit. N.C. Gen. Stat. § 143-215.1.

And that protection applies broadly: “Waters” of the

State is defined to include “any stream, river, brook,

swamp, lake, sound, tidal estuary, bay, creek, reservoir,

waterway, or other body or accumulation of water, whether

surface or underground, public or private, or natural or artificial, that is contained in, flows through, or borders

upon any portion of this State, including any portion of

the Atlantic Ocean over which the State has jurisdiction.”

Id. § 143-212(6) (emphasis added). “Waters” includes

“wetlands” that are “inundated or saturated by an accumulation of surface or ground water at a frequency and

duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions,” with

the exception of prior converted cropland. 15A N.C. Admin. Code § 02B.0202(61).

Furthermore, North Carolina, like California, has responded to limitations on federal jurisdiction by expanding its jurisdiction and consequent protections. In response to Solid Waste Agency of New Cook County, North

Carolina’s Department of Environmental Quality

(NCDEQ) asserted regulatory authority over isolated

wetlands. See 15A N.C. Admin. Code § 02H.1301.

NCDEQ subjected discharges “resulting from activities

that require State review after October 22, 2001 and that

require a Division determination concerning effects on

isolated wetlands and isolated classified surface waters”

to its permitting requirements. Id. § .1301(b). And it expressly provided that the requirements applied to waters

that the Corps determined are “not regulated under

24

Section 404 of the Clean Water Act” if the waters meet

the definition of isolated waters. Id.

In 2021, NCDEQ again clarified its jurisdiction in response to the 2020 Navigable Water Protection Rule.

NCDEQ adopted a temporary rule that broadened the definition of “isolated waters,” id. § .1301(f)(7), and also

broadened the agency’s authority to include “federally

non-jurisdictional wetlands and federally non-jurisdictional classified isolated wetlands.” Id. § .1401(a)-(b). In

short, the State’s authority extends to all state wetlands

and surface waters that were not jurisdictional under the

federal CWA.

5. Kansas’s regulatory regime also covers a broad

range of water features. Kansas asserts jurisdiction over

“waters of the state,” which includes “all streams and

springs, and all bodies of surface and subsurface waters

within the boundaries of the state”—in short, all waters,

including wetlands. See Kan. Stat. § 65-161(a); Kan. Admin. Reg. § 28-16-28b(sss).

Kansas prohibits the discharge of sewage into all of

these waters and applies general narrative criteria to them

as well. See Kan. Stat. § 65-164; Kan. Admin. Reg. § 2816-28e(b). Kansas also applies numeric criteria to designated uses of surface waters and to “classified” stream

segments, surface waters, lakes, wetlands, and ponds.

Kan. Admin. Reg. § 28-16-28e(d).

Kansas also continues to develop and implement a

state Water Plan, which sets forth policies and programs

for the comprehensive management, conservation, and

development of water resources—including water quality

and water quantity issues. See Kan. Stat. § 82a-907. The

development and implementation of the Plan is done in

collaboration with state, local, and federal agencies, regional advisory committees, organizations, and the general public. Kan. Dep’t of Health & Envt., Kansas

25

Nonpoint Source Pollution Management Plan 2019 Update at 22, perma.cc/6KKN-HWNQ (NPS 2019 Update).

Pursuant to the Water Plan, Kansas has developed a

number of strategies for managing nonpoint sources. For

example, it provides information, technical assistance,

and financial assistance to landowners and citizens to implement best management practices—including terraces,

filter strips, and pasture and rangeland planting. Id. at 30,

33; see also Kansas Water Office, Kansas Water Authority 2022 Annual Report to the Governor and Legislature

at 16, 18, perma.cc/2VJ3-ANRE. And, recognizing that

management of nonpoint source pollution is a shared responsibility between local, state, and federal bodies, the

State works with local conservation districts to develop

Local NPS Management Plans, local environmental protection plans, and local water quality protection plans.

NPS 2019 Update at 41.

6. Ohio similarly asserts authority over “all streams,

lakes, ponds, marshes, watercourses, waterways, wells,

springs, irrigation systems, drainage systems, and other

bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the

strata in which underground water is located, that are situated wholly or partly within, or border upon, this state,

or are within its jurisdiction, except those private waters

that do not combine or effect a junction with natural surface or underground waters.” Ohio Rev. Code Ann.

§ 6111.01(H).

All of the waters of the state are subject to a prohibition on pollution without a permit and subject to water

quality standards, plans, and programs developed and

adopted by Ohio’s Environmental Protection Agency. Id.

§§ 6111.03(A) (“develop plans and programs for the prevention, control, and abatement of new or existing pollution of the waters of the state”), 6111.04(A) (prohibition

on pollution), 6111.037 (funding for control of non-point

26

sources of pollution), 6111.041 (adopt standards of water

quality); Ohio Admin. Code §§ 3745 (implementing regulations), 901:13-1-01 et seq. (agricultural pollution abatement rules), 1501:3-12-01 et seq. (silvicultural pollution

abatement rules).

All surface waters are subject to narrative water quality criteria, and additional numeric criteria apply to designated uses and specific waters within Ohio. Ohio Admin.

Code § 3745-1-04 et seq. Wetlands—which are defined at

least as broadly as the federal definition, see Ohio Rev.

Code Ann. § 6111.02(P)—are similarly subject to narrative and numeric criteria. Ohio Admin. Code §§ 3745-150 to -54.

Furthermore, Ohio expressly protects “isolated wetlands.” An “isolated wetland” is defined as “a wetland

that is not subject to regulation under the Federal Water

Pollution Control Act.” Ohio Rev. Code Ann. § 6111.02(F). Any person that seeks to engage in an activity that

involves the filling of an isolated wetland or that discharges dredged material5 into isolated wetlands must

first apply for and obtain a permit from Ohio’s Environmental Protection Agency. Id. §§ 6111.021(B), 6111.028(A). Accordingly, Ohio law occupies any space that federal law does not cover.

7. South Dakota also has robust protections for the

waters of its state, which include “all waters within the

jurisdiction of this state, including all streams, lakes,

ponds, impounding reservoirs, marshes, watercourses,

waterways, wells, springs, irrigation systems, drainage

systems and all other bodies or accumulations of water,

surface and underground, natural or artificial, public or

As under the CWA, “normal farming, silviculture, and ranching

activities, such as plowing, cultivating, seeding, and harvesting, for

production of food, fiber, and forest products” are exempt. Ohio Rev.

Code Ann. § 6111.028(B)(2).

5

27

private, situated wholly or partly within or bordering

upon the state.” S.D. Codified Law § 34-A-2-2(12). Wetlands are considered “waters of the state” and afforded

accordant protection. S.D. Admin. R. 74:51:01:11.

Since 1972, the State has maintained a State Water

Plan, which seeks to conserve, develop, and manage use

of the State’s water resources for the optimum benefit of

current and future generations. Additionally, South Dakota applies strict water quality standards that provide

criteria for the State’s bodies of water, as well as designating their beneficial uses. Id. § 74:51:01 et seq.

The efforts of these seven States are just a few examples of state engagement across the country. Against this

background, the Court (and public) should have comfort

knowing that, although the federal CWA no doubt will

continue to play an important role in the protection of the

Nation’s water resources, it does not operate in a regulatory void. The States take seriously their role in land- and

water-use regulation. This Court should adopt a standard

to determine what constitutes “waters of the United

States” that recognizes this role, as Congress intended.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted.

Philip Jacob Parker, Jr.

North Carolina Farm

Bureau Federation, Inc.

5301 Glenwood Avenue

Raleigh, NC 27612

(919) 782-1705

Counsel for the North Carolina

Farm Bureau Federation, Inc.

Michael B. Kimberly

Counsel of Record

Karen Lin

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

Counsel for all amici

28

Kari E. Fisher

California Farm Bureau

Federation

2600 River Plaza Drive

Sacramento, CA 95833

(916) 561-5666

Counsel for the California

Farm Bureau Federation

Wendee Grady

The Kansas Farm Bureau

Legal Foundation

2627 KFB Plaza

Manhattan, KS 66503

(785) 587-6101

Chad Endsley

Leah Curtis

Amy Milam

Ohio Farm Bureau Federation

280 N High Street, Sixth Floor

Columbus, OH 43215

(614) 246-2400

Counsel for the Ohio Farm

Bureau Federation

Stephanie McMullen

Texas Farm Bureau

7420 Fish Pond Road

Waco, TX 76710

(254) 751-2280

Counsel for the Kansas Farm Counsel for the Texas Farm

Bureau

Bureau Legal Foundation

Christina L. Gruenhagen

Parker & Geadelmann,

P.L.L.C.

5400 University Avenue

West Des Moines, IA 50266

(515) 225-5410

Counsel for the Iowa Farm

Bureau Federation

APPENDIX

1a

IDENTITIES OF THE AMICI

Amici are:

Arizona Farm Bureau Federation

California Farm Bureau Federation

Colorado Farm Bureau

Illinois Farm Bureau

Indiana Agricultural Law Foundation

Iowa Farm Bureau Federation

Kansas Farm Bureau Legal Foundation

Minnesota Farm Bureau Federation

Missouri Farm Bureau Federation

Nebraska Farm Bureau Federation

New Mexico Farm & Livestock Bureau

North Carolina Farm Bureau Federation

North Dakota Farm Bureau

Ohio Farm Bureau Federation

Oklahoma Farm Bureau Legal Foundation

South Dakota Farm Bureau Federation

Tennessee Farm Bureau Federation

Texas Farm Bureau

Virginia Farm Bureau