Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJun 16, 2022
Ask Donna
What actually matters in this document.
Text
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 WATERKEEPER ALLIANCE, SAN
FRANCISCO BAYKEEPER, BAYOU CITY
WATERKEEPER, AND 47 OTHER WATERKEEPER ORGANIZATIONS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
____________________
STUART WILCOX
ENVIRONMENTAL
ADVOCATES
5135 Anza St.
San Francisco, CA 94121
(720) 331-0385
wilcox@enviroadvocates.com
ANNA-ROSE MATHIESON
Counsel of Record
CALIFORNIA APPELLATE
LAW GROUP LLP
96 Jessie Street
San Francisco, CA 94105
(415) 649-6700
annarose@calapplaw.com
Additional Counsel
KELLY HUNTER FOSTER
WATERKEEPER ALLIANCE, INC.
303 S. Main Street, Suite A2
Carthage, MO 64836
(212) 747-0622
kfoster@waterkeeper.org
ERIC J. BUESCHER
SAN FRANCISCO BAYKEEPER
1736 Franklin Street, Suite 800
Oakland, CA 94612
(510) 735-9700
eric@baykeeper.org
KRISTEN SCHLEMMER
BAYOU CITY WATERKEEPER
2010 N. Loop W. #103
Houston, TX 77018
(512) 619-1583
kristen@bayoucitywaterkeeper.org
i
TABLE OF CONTENTS
Page
BRIEF OF WATERKEEPER ALLIANCE, SAN
FRANCISCO BAYKEEPER, BAYOU CITY
WATERKEEPER AND 47 OTHER
WATERKEEPER ORGANIZATIONS AS
AMICI CURIAE IN SUPPORT OF
RESPONDENTS .................................................... 1
INTERESTS OF AMICI CURIAE ............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ........................................................... 5
ARGUMENT ............................................................... 6
I.
The CWA’s Broad Objective Can Only Be
Achieved by Protecting All of the Waters
that Make Up Aquatic Ecosystems. .............. 6
A. The structure and text of the CWA
extend jurisdiction to the constitutional
limits of Congress’
authority………………………………….8
B. The legislative history of the CWA
supports a broad reading of CWA
jurisdiction that extends to the
limits of the Constitution. .................. 11
II. SWANCC and Rapanos Are Narrow
Decisions that Should Not Be Expanded
to Other Types of Waters. ............................ 14
III. Any Test Based Solely on Connections to
Traditional Navigable Waters Would
Exclude Iconic and Important Waters of
the United States.......................................... 16
ii
TABLE OF CONTENTS
(continued)
Page
A. Crater Lake ......................................... 19
B. New Mexico’s Closed Basins .............. 21
C. Idaho’s Snake River Closed Basins ... 24
D. Lower Galveston Bay Watershed ...... 29
E. San Francisco Bay Watershed ........... 35
CONCLUSION.......................................................... 40
iii
TABLE OF AUTHORITIES
CASES
Am. Farm Bureau Fed’n v. EPA,
792 F.3d 281 (3d Cir. 2015) .......................... 10, 17
Arbaugh v. Y & H Corp.,
546 U.S. 500 (2006) ............................................... 8
Arkansas v. Oklahoma,
503 U.S. 91 (1992) ......................................... 10, 14
City of Milwaukee v. Illinois &
Michigan,
451 U.S. 304 (1981) ....................................... 10, 12
Cnty. of Maui v. Haw. Wildlife Fund,
140 S. Ct. 1462 (2020) ................................... 6, 7, 9
E. I. du Pont de Nemours & Co. v.
Train,
430 U.S. 112 (1977) ............................................... 8
EPA v. Cal. ex rel. State Water
Resources Control Bd.,
426 U.S. 200 (1976) ......................................... 7, 17
Hodel v. Va. Surface Min. &
Reclamation Ass’n, Inc.,
452 U.S. 264 (1981) ....................................... 13, 14
In re Permian Basin Area Rate Cases,
390 U.S. 747 (1968) ............................................... 8
Int’l Paper Co. v. Ouellette,
479 U.S. 481 (1987) ............................... 7, 9, 10, 13
Nat’l Ass’n of Mfrs. v. Dep’t of Defense,
138 S. Ct. 617 (2018) ............................................. 9
New York v. United States,
505 U.S. 144 (1992) ............................................. 13
PUD No. 1 of Jefferson Cnty. v. Wash.
Dep’t of Ecology,
511 U.S. 700 (1994) ............................................. 10
Rapanos v. United States,
547 U.S. 715 (2006) ................................. 14, 15, 16
iv
TABLE OF AUTHORITIES
(continued)
Page
Sackett v. EPA,
No. 2:08-cv-00185-EJL,
2019 WL 13026870
(D. Idaho Mar. 31, 2019) ..................................... 16
Solid Waste Agency of N. Cook Cnty. v.
U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) ................................. 14, 15, 16
United States v. Holland,
373 F. Supp. 665 (M.D. Fla. 1974) ............... 12, 13
United States v. Riverside Bayview
Homes, Inc.,
474 U.S. 121 (1985) ..................................... passim
United States v. Standard Oil Co.,
384 U.S. 224 (1966) ............................................. 11
STATUTES
33 U.S.C. § 407 .......................................................... 11
33 U.S.C. § 1251...................................................... 6, 8
33 U.S.C. § 1251 et seq. .............................................. 6
33 U.S.C. § 1252 ...................................................... 7, 9
33 U.S.C. § 1313.................................................... 9, 11
33 U.S.C. § 1362 ...................................................... 5, 8
Cal. Wat. Code § 85002 ............................................ 37
Water Pollution Control Act,
Pub. L. No. 80-845, 62 Stat. 1155
(June 30, 1948) .................................................... 11
LEGISLATIVE MATERIALS
118 Cong. Rec. (1972) ............................................... 12
123 Cong. Rec. (1977) ............................................... 14
H.R. Rep. No. 93-1396 (1974)................................... 13
v
TABLE OF AUTHORITIES
(continued)
Page
S. Conf. Rep. No. 92-1236 (1972) ....................... 11, 12
S. Rep. No. 92-414 (1972) ..................................... 7, 11
REGULATIONS
33 C.F.R. § 328.3 (1999) ........................................... 15
33 C.F.R. § 328.3 (2008) ........................................... 16
33 C.F.R. § 328.3 (2015) ..................................... 17, 18
40 C.F.R. § 122.2 (2015) ..................................... 17, 18
51 Fed. Reg. 41217 (1986) ........................................ 15
85 Fed. Reg. 22250 (April 21, 2020) ........................ 39
OTHER AUTHORITIES
Eric S. Blake & David A. Zelinsky,
National Hurricane Center, Tropical
Cyclone Report: Hurricane Harvey
(May 9, 2018), available at
https://www.nhc.noaa.gov/data/tcr/A
L092017_Harvey.pdf ........................................... 32
Cal. State Water Res. Control Bd.,
Development of Flow Criteria for the
Sacramento-San Joaquin Delta
Ecosystem (Aug. 3, 2010), available
at https://www.waterboards.ca.gov/
waterrights/water_issues/programs/
bay_delta/deltaflow/docs/final_rpt08
0310.pdf................................................................ 37
vi
TABLE OF AUTHORITIES
(continued)
Page
Cal. State Water Res. Control Bd.,
Water Quality Control Plan for the
San Francisco Bay/Sacramento-San
Joaquin Delta Estuary (Dec. 13,
2006), available at https://www.
waterboards.ca.gov/waterrights/
water_issues/programs/bay_delta/wq
_control_plans/2006wqcp/docs/2006_
plan_final.pdf....................................................... 37
Earthjustice et al., Reckless Abandon:
How the Bush Administration Is
Exposing America’s Waters to Harm
(Aug. 2004), available at
https://www.nwf.org/EducationalResources/Reports/2004/08-12-2004Reckless-Abandon ............................................... 27
Epmatsw, Panorama Photo of Crater
Lake, Oregon, USA (Aug. 2, 2013),
available at https://commons.
wikimedia.org/wiki/File:Crater_Lake
_Panorama,_Aug_2013.jpg ................................. 19
Margaret G. Forbes et al., Nutrient
Transformation & Retention by
Coastal Prairie Wetlands, Upper
Gulf Coast, Texas, 32 Wetlands 705
(May 17, 2012), available at
https://doi.org/10.1007/s13157-0120302-z ................................................................... 32
Galveston Bay Found., Galveston Bay
Report Card: Water Quality,
https://www.galvbaygrade.org/water
-quality/ (last visited June 14, 2022) ................. 32
vii
TABLE OF AUTHORITIES
(continued)
Page
Bart Gammett, USFWS Pacific Region,
Flickr, Bull Trout Timber Creek—
Little Lost River (Jan. 27, 2011),
https://www.flickr.com/photos/usfws
pacific/5393233881/in/photolist9dzJx4 ............................................................ 25, 26
Geotechnology Research Institute et al.,
Galveston Bay Wetland Mitigation
Assessment & Local Government
Capacity Building (Aug. 2014),
available at https://harcresearch.org/
wp-content/uploads/2021/02/
GALVESTON-BAY-WETLANDMITIGATION-ASSESSMENTREPORT-1.pdf ..................................................... 34
A. Hedrick, BLM Idaho, Flickr, Lost
River Valley, W. of Mackay, Idaho
(Aug. 23, 2012), https://tinyurl.com/
4y7hf62p. ............................................................. 25
N. William Hines, History of the 1972
Clean Water Act: The Story Behind
How the 1972 Act Became the
Capstone on a Decade of
Extraordinary Environmental
Reform, 4 Geo. Wash. J. Energy &
Envtl. L. 80 (Summer 2013),
available at https://gwjeel.com/wpcontent/uploads/2013/10/4-2hines.pdf............................................................... 17
Idaho Dep’t of Envtl. Quality, Idaho’s
2018/2020 Integrated Report:
Appendix A (Oct. 2020), available at
https://www2.deq.idaho.gov/admin/L
EIA/api/document/download/14890 ............. 26, 28
viii
TABLE OF AUTHORITIES
(continued)
Page
Idaho Fish & Game Idaho Fishing
Planner, Big Lost River,
https://idfg.idaho.gov/ifwis/fishingpla
nner/water/1128381437946 (last
visited June 14, 2022) ................................... 26, 27
Idaho Fish & Game Idaho Fishing
Planner, Little Lost River,
https://idfg.idaho.gov/ifwis/fishingpla
nner/water/1129730437665 (last
visited June 14, 2022) ......................................... 27
Idaho Fish & Game Idaho Fishing
Planner, Medicine Lodge Creek,
https://idfg.idaho.gov/ifwis/fishingpla
nner/water/1124550440922 (last
visited June 14, 2022) ......................................... 27
John S. Jacob et al., Texas A&M Univ.
AgriLife Ext., Houston-Area
Freshwater Wetland Loss, 1992–
2010 (May 2014), available at
https://tcwp.tamu.edu/files/2015/06/
WetlandLossPub.pdf ......................... 31, 32, 33, 34
John S. Jacob, Texas A&M Univ.
AgriLife Ext., Texas Coastal
Watershed Program, Upper Texas
Gulf Coast Pothole Wetlands (March
2011), available at https://cdnext.agnet.tamu.edu/wpcontent/uploads/2019/03/ESP391upper-texas-gulf-coast-potholewetlands-new-research-showssignificant-and-profound-hydrologicconnections-to-galveston-bay-andother-area-waters.pdf ................................... 30, 31
ix
TABLE OF AUTHORITIES
(continued)
Page
James C. Kenny, N.M. Envtl. Dep’t
Cabinet Sec’y, Comment on EPA
Proposed Rulemaking (Apr. 21,
2019), available at https://www.
regulations.gov/comment/EPA-HQOW-2018-0149-4964 ............................................ 24
Lainie Levick et al., The Ecological and
Hydrological Significance of
Ephemeral and Intermittent Streams
in the Arid and Semi-arid American
Southwest, U.S. EPA, Nov. 2008,
available at https://www.epa.gov/
sites/default/files/2015-03/
documents/ephemeral_streams_repo
rt_final_508-kepner.pdf ................................ 37, 38
Nat’l Park Serv., Crater Lake,
Frequently Asked Questions,
https://www.nps.gov/crla/faqs.htm
(last visited June 13, 2022) ........................... 19, 20
Nw. Power & Conservation Counsel,
Upper Snake Province Assessment
(May 28, 2004), available at
https://www.nwcouncil.org/sites/defa
ult/files/1IntroOverview.pdf ......................... 26, 27
Letter from Daniel Opalski, U.S. EPA
Region 10 Director, to Justin Green,
Water Quality Administrator, Or.
Dept. Envtl. Quality (March 12,
2021), available at https://www.epa.
gov/sites/default/files/2021-03/
documents/wqs-oregon-orw-3-122021.pdf................................................................ 20
x
TABLE OF AUTHORITIES
(continued)
Page
Gregory J. Reis et al., Clarifying Effects
of Environmental Protections on
Freshwater Flows to—and Water
Exports from—the San Francisco
Bay Estuary, San Francisco Estuary
& Watershed Science, March 2019,
available at https://escholarship.org/
uc/item/8mh3r97j ................................................ 35
San Francisco Baykeeper, Map of
Intermittent and Ephemeral Streams
in the Bay Area, available at
https://waterkeeper.org/wp-content/
uploads/2019/11/Bay_Area_WOTUSFINAL.png ........................................................... 38
Letter from Russell Train, EPA
Administrator, to General Gribble
(June 19, 1976), in Section 404 of the
Federal Water Pollution Control Act
Amendments of 1972: Hearings
Before the Senate Comm. on Pub.
Works, 94th Cong., 2d Sess. (1974) .................... 12
U.S. Army Corps of Eng’rs, Portland
District, Navigable Waters Lists
(Oct. 1993), available at
https://www.nwp.usace.army.mil/
Portals/24/docs/regulatory/jurisdictio
n/Navigable_US_Waters_Oregon_19
93.pdf.................................................................... 20
U.S. Coast Guard, Navigability
Determinations for the Thirteenth
District, available at https://www.
pacificarea.uscg.mil/Portals/8/
District_13/dpw/docs/Navigability_
Determination_for_the_13th_Coast_
Guard_District.pdf?ver=2017-06-20135946-777........................................................... 20
xi
TABLE OF AUTHORITIES
(continued)
Page
U.S. Dep’t of Interior Nat’l Park Serv.,
Final General Mgmt. Plan/Envtl.
Impact Statement, Crater Lake Nat’l
Park (May 2005), available at
http://npshistory.com/publications/cr
la/gmp-eis-2005.pdf ....................................... 19, 20
U.S. Dep’t of the Interior, 12 Things
You Didn’t Know About Crater Lake
Nat’l Park (May 21, 2018),
https://www.doi.gov/blog/12-thingsyou-didnt-know-about-crater-lakenational-park ....................................................... 20
Memorandum from U.S. EPA & U.S.
Dep’t of the Army on Review of U.S.
Army Corps of Eng’rs ORM2 Permit
and Jurisdictional Determination
Data to Assess Effects of the
Navigable Waters Protection Rule
(June 8, 2021), available at https://
www.epa.gov/sites/default/files/202106/documents/3_final_memorandum
_for_record_on_review_of_data_web
_508c.pdf .............................................................. 39
U.S. EPA & U.S. Dep’t of the Army,
Technical Support Document for the
Clean Water Rule: Definition of
Waters of the United States (May 27,
2015), available at https://www.
regulations.gov/document/EPA-HQOW-2011-0880-20869 .................................... 31, 32
xii
TABLE OF AUTHORITIES
(continued)
Page
U.S. EPA & U.S. Dep’t of the Army,
Technical Support Document for the
Proposed, Revised Definition of
Waters of the United States Rule
(Nov. 18, 2021), available at
https://www.regulations.gov/docume
nt/EPA-HQ-OW-2021-0602-0081 ................. 39, 40
U.S. EPA, Mississippi River/Gulf of
Mexico Hypoxia Task Force,
Hypoxia 101, https://www.epa.gov/
ms-htf/hypoxia-101 (last updated
June 9, 2022) ....................................................... 32
U.S. EPA, New Mexico NPDES Permits,
https://www.epa.gov/npdespermits/new-mexico-npdes-permits
(last updated Apr. 20, 2022) ............................... 24
U.S. EPA, New Mexico Standards for
Interstate and Intrastate Surface
Waters (July 24, 2020), available at
https://www.epa.gov/sites/default/
files/2014-12/documents/nmwqs.pdf .................. 22
U.S. EPA, NPDES Permits Around the
Nation, https://www.epa.gov/npdespermits (last updated Mar. 30, 2022) ................ 24
U.S. EPA, ORD Report: Connectivity of
Streams and Wetlands to
Downstream Waters (Jan. 2015),
available at https://www.
regulations.gov/document/EPA-HQOW-2011-0880-20858 .......................................... 33
U.S. EPA, San Francisco Bay Delta:
About the Watershed,
https://www.epa.gov/sfbaydelta/about-watershed#about (last
updated June 13, 2022) ....................................... 37
xiii
TABLE OF AUTHORITIES
(continued)
Page
U.S. Fish & Wildlife Serv., ECOS
Environmental Conservation Online
System, Bull Trout, https://ecos.fws.
gov/ecp/species/8212 (last visited
June 14, 2022) ..................................................... 26
Univ. of Houston, Hobby School of
Public Affairs, The Impact of
Hurricane Harvey, https://uh.edu/
hobby/harvey/ (last visited June 15,
2022) ............................................................... 31, 32
Waterkeeper Alliance et. al., Comments
on U.S. EPA, Revised Definition of
Waters of the United States (Feb. 8,
2022), available at https://www.
regulations.gov/comment/EPA-HQOW-2021-0602-0307 .................................... passim
Bradford P. Wilcox et al., Evidence of
Surface Connectivity for Texas Gulf
Coast Depressional Wetlands, 31
Wetlands 451 (Mar. 18, 2011),
available at https://agrilifecdn.
tamu.edu/urbannature/files/2012/06/
2011WilcoxWetlands1.pdf .................................. 33
Ariel Wittenberg, The River Disappears,
but the Pollution Doesn’t, E&E News
(July 16, 2019 12:59 PM),
https://www.eenews.net/articles/theriver-disappears-but-the-pollutiondoesnt/#:~:text=First%20in%20a%20
series.,desert%20here%20and%20si
mply%20ends ....................................................... 28
Anthony Zuefeldt, Flickr (Oct. 9, 2014),
https://www.flickr.com/photos/12146
7282@N02/17372918332 ..................................... 21
BRIEF OF WATERKEEPER ALLIANCE, SAN
FRANCISCO BAYKEEPER, BAYOU CITY
WATERKEEPER AND 47 OTHER WATERKEEPER ORGANIZATIONS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
The undersigned respectfully submit this amici
curiae brief in support of respondents.1
INTERESTS OF AMICI CURIAE
Amici are not-for-profit environmental organizations that rely on the Clean Water Act in their collective work to protect rivers, streams, lakes, wetlands,
and coastal waters, and to aid people and communities that depend on clean water for drinking, sustenance fishing, recreation, livelihoods, and survival.
Amici’s ability to protect these waters depends on a
correct and broad understanding of the Clean Water
Act.
Amicus Waterkeeper Alliance, Inc. consists of over
335 international Waterkeeper groups, including 164
U.S. Waterkeeper groups, all of their individual members and supporters, and the collective interests of
more than 15,000 individual supporting members
who live and work near waterways across the country.
Amici San Francisco Baykeeper and Bayou City
Waterkeeper are two of these U.S. Waterkeeper
groups, and they work to protect and restore the San
1 No counsel for any party authored this brief in whole or in
part, no party or party’s counsel made a monetary contribution
intended to fund the preparation or submission of this brief, and
no person or entity, other than the amici curiae or their counsel,
made a monetary contribution to the preparation or submission
of this brief. All parties provided consent to the filing of this brief.
2
Francisco Bay and its watershed and Galveston Bay
and its watershed respectively.
The following Waterkeeper groups also join this
brief; each is a member of Waterkeeper Alliance, and
each protects and restores important watersheds
throughout the United States:
• Cahaba Riverkeeper, Birmingham, Alabama
• Coosa Riverkeeper, Mt Laurel, Alabama
• Hurricane Creekkeeper, Tuscaloosa, Alabama
• Cook Inletkeeper, Homer, Alaska
• Arkansas Ozark Waterkeeper, Fayetteville, Arkansas
• Humboldt Baykeeper, Arcata, California
• LA Waterkeeper, Santa Monica, California
• Orange County Coastkeeper, Costa Mesa, California
• Russian Riverkeeper, Healdsburg, California
• San Diego Coastkeeper, San Diego, California
• Animas Riverkeeper, Durango, Colorado
• Poudre Waterkeeper, Fort Collins, Colorado
• Anacostia Riverkeeper, Washington, District of
Columbia
• Collier County Waterkeeper, Naples, Florida
• Miami Waterkeeper, Miami, Florida
• Suncoast Waterkeeper, Sarasota, Florida
• Tampa Bay Waterkeeper, St. Petersburg, Florida
3
• Suwannee Riverkeeper, Hahira, Georgia
• Snake River Waterkeeper, Boise, Idaho
• Atchafalaya Basinkeeper, Plaquemine, Louisiana
• Assateague Coastkeeper, Berlin, Maryland
• Baltimore Harbor Waterkeeper, Baltimore, Maryland
• Choptank Riverkeeper, Easton, Maryland
• Waterkeepers Chesapeake, Takoma Park, Maryland
• Yellow Dog Watershed Preserve, Big Bay, Michigan
• Upper Missouri Waterkeeper, Bozeman, Montana
• Hackensack Riverkeeper, Hackensack, New Jersey
• NY/NJ Baykeeper, Hazlet, New Jersey
• Peconic Baykeeper, Hampton Bays, New York
• Broad Riverkeeper, Lawndale, North Carolina
• Catawba Riverkeeper, McAdenville, North Carolina
• Green Riverkeeper, Hendersonville, North Carolina
• Lake Erie Waterkeeper, Toledo, Ohio
• Grand Riverkeeper, Miami, Oklahoma
• Tar Creekkeeper, Miami, Oklahoma
• Rogue Riverkeeper, Ashland, Oregon
4
• Willamette Riverkeeper, Portland, Oregon
• Lower Susquehanna Riverkeeper, Wrightsville,
Pennsylvania
• Black-Sampit Riverkeeper, Conway, South Carolina
• Lumber Riverkeeper, Conway, South Carolina
• Waccamaw Riverkeeper, Conway, South Carolina
• San Antonio Bay Estuarine Waterkeeper,
Seadrift, Texas
• Environmental Stewardship, a Waterkeeper Alliance Affiliate, Bastrop, Texas
• Lake Champlain Lakekeeper, Montpelier, Vermont
• Puget Soundkeeper, Seattle, Washington
• Twin Harbors Waterkeeper, Cosmopolis, Washington
• Milwaukee Riverkeeper, Milwaukee, Wisconsin
5
INTRODUCTION
AND SUMMARY OF ARGUMENT
This Court granted review to decide whether the
Ninth Circuit set forth the correct test for determining whether adjacent wetlands are “waters of the
United States” that qualify for protection under the
Clean Water Act, 33 U.S.C. § 1362(7) (CWA). Yet petitioners and some of their amici propose answers to
that question that would require the Court to decide
a much broader issue and define the full scope of “waters of the United States” under the CWA.
The Court should decline that invitation. The
CWA’s definition of “waters” is complex, as this Court
is well aware. There is no need in this case to reach
out beyond the question presented, and there are good
reasons to keep the holding limited to the category of
wetlands at issue here: those adjacent to both a traditional navigable water and a jurisdictional non-navigable tributary to a traditional navigable water.
Our nation’s waters form diverse aquatic ecosystems that can’t be reduced to a one-size-fits-all test.
The deepest lake in the United States has been found
not to be a traditional “navigable” water in the sense
urged by petitioners, and it has no known surface or
subsurface connection to any other body of water. One
of the biggest rivers in California regularly goes dry.
About a fifth of New Mexico and a large portion of
Idaho are within “closed basin” aquatic ecosystems of
lakes, rivers, streams, and wetlands that have no direct surface connection to any traditional navigable
waters. Texas’s vast wetlands form critical barriers to
catastrophic flooding that can impact commerce
6
throughout the nation, yet many of these wetlands
have no surface connections to other waters.
All of these waters, and many others, are vital to
both local communities and commerce in the nation
as a whole. Yet they lack surface connections to traditional navigable waters, and thus might not qualify
for CWA protection under the tests proposed by petitioners and their amici. This is why the objective of
the CWA is not protection of traditional navigable waters, but rather protection of the nation’s waters –
that is, the aquatic ecosystems that comprise the “waters of the United States.”
There is no need to decide anything beyond the
wetlands at issue here. While petitioners frame this
case as involving just three key precedents, this Court
has examined the CWA in numerous cases over the
last five decades, and has recognized several categories of waters as falling within the CWA’s jurisdiction.
Those other categories have never been called into
question. This Court should address only the proper
test for adjacent wetlands, and should affirm the
Ninth Circuit’s decision for all the reasons explained
below and in the government’s brief.
ARGUMENT
I.
The CWA’s Broad Objective Can Only Be
Achieved by Protecting All of the Waters
that Make Up Aquatic Ecosystems.
Congress passed the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251 et seq., commonly
known as the CWA, to “restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); Cnty. of Maui v.
7
Haw. Wildlife Fund, 140 S. Ct. 1462, 1468 (2020). The
CWA is not focused on the protection of navigation,
but instead seeks to conserve waters “for the protection and propagation of fish and aquatic life and wildlife, recreational purposes, and the withdrawal of
such waters for public water supply, agricultural, industrial, and other purposes.” 33 U.S.C. § 1252(a).
This Court has long recognized the CWA as “an
all-encompassing program of water pollution regulation” that “applies to all point sources[,] virtually all
bodies of water,” and “virtually all surface water in
the country.” Int’l Paper Co. v. Ouellette, 479 U.S. 481,
486, 492 (1987) (internal quotations omitted); see also,
e.g., S. Rep. No. 92-414, at 95 (1972) (“to establish a
comprehensive long-range policy for the elimination
of water pollution”). Congress intended the CWA to
achieve these objectives by regulating pollution at its
source. Cnty. of Maui, 140 S. Ct. at 1473 (citing EPA
v. Cal. ex rel. State Water Resources Control Bd., 426
U.S. 200, 202-04 (1976)).
The “broad objective” of the CWA requires “[p]rotection of aquatic ecosystems, [which] demand[s]
broad federal authority to control pollution, for
‘[w]ater moves in hydrologic cycles and it is essential
that discharge of pollutants be controlled at the
source.’” United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 132-33 (1985) (quoting S. Rep. No.
92-414, at 77). Congress took a “broad, systemic view
of the goal of maintaining and improving water quality.” Id. at 132.
As this Court noted, “‘[w]e cannot, in these circumstances, conclude that Congress has given authority
inadequate to achieve with reasonable effectiveness
8
the purposes for which it has acted.’” E. I. du Pont de
Nemours & Co. v. Train, 430 U.S. 112, 132 (1977)
(quoting In re Permian Basin Area Rate Cases, 390
U.S. 747, 777 (1968)). The CWA broadly protects entire aquatic ecosystems, and this Court should not
limit the Act’s jurisdiction2 in a manner that interferes with that objective.
A.
The structure and text of the CWA
extend jurisdiction to the constitutional limits of Congress’ authority.
In addition to its central objective of restoring and
maintaining the “chemical, physical, and biological
integrity of the Nation’s waters,” the CWA sets a national goal that “discharge of pollutants into the navigable waters be eliminated,” and an interim goal of
improving water quality that “provides for the protection and propagation of fish, shellfish, and wildlife
and provides for recreation in and on the water.” 33
U.S.C. § 1251(a)(1), (2).
The CWA broadly defines “navigable waters” as
“the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7); see also Riverside
Bayview, 474 U.S. at 132-33 (“Protection of aquatic
ecosystems, Congress recognized, demanded broad
federal authority to control pollution . . . .”). The
CWA’s “definition of ‘navigable waters’ as ‘the waters
2 The agencies charged with interpreting the CWA and the
cases applying the Act have traditionally discussed the CWA’s
“jurisdiction,” and referred to waters covered by the CWA as “jurisdictional” waters. This brief follows that convention, but references to the CWA’s jurisdiction should not be taken to suggest
limits on the federal courts’ subject-matter jurisdiction. See, e.g.,
Arbaugh v. Y & H Corp., 546 U.S. 500, 510-11 (2006).
9
of the United States’ makes clear that the term ‘navigable’ as used in the Act is of limited import.” Riverside Bayview, 474 U.S. at 133; see also Ouellette, 479
U.S. at 486 n.6. The phrase “waters of the United
States” gives meaning to the phrase “navigable waters” under the CWA—not the other way around.
The Court has, in two recent decisions, recognized
that the CWA’s broad objective must be considered in
interpreting the term “waters of the United States.”
See Cnty. of Maui, 140 S. Ct. at 1476; Nat’l Ass’n of
Mfrs. v. Dep’t of Defense, 138 S. Ct. 617, 624 (2018).
The broad scope of the CWA is apparent in the text of
the Act; the Act’s breadth is vital to achieving the
statute’s objective and goals, as well as to its effectiveness in regulating pollution.
For example, water quality standards are required
to be established under the CWA for both interstate
and intrastate waters “to protect the public health or
welfare, enhance the quality of water and serve the
purposes” of the CWA. 33 U.S.C. § 1313(a), (c)(2)(A).
Each state is required to “identify those waters within
its boundaries” that are polluted and not meeting water quality standards and must take steps to implement the applicable water quality standards. 33
U.S.C. § 1313(d) (emphasis added). The CWA also
grants the U.S. Environmental Protection Agency
(EPA) Administrator authority to investigate “the
condition of any waters in any State or States,” and
“the discharges of any sewage, industrial wastes, or
substance which may adversely affect such waters.”
33 U.S.C. § 1252(a) (emphasis added).
This Court has confirmed the breadth of CWA jurisdiction over “lakes, rivers, streams, and other
10
bodies of water,” including “intrastate waters” and
wetlands adjacent to “other bodies of water.” Riverside Bayview, 474 U.S. at 123, 131-35; see Ouellette,
479 U.S. at 486 n.6; PUD No. 1 of Jefferson Cnty. v.
Wash. Dep’t of Ecology, 511 U.S. 700, 704 (1994) (confirming CWA “requires each State, subject to federal
approval, to institute comprehensive water quality
standards establishing water quality goals for all intrastate waters”) (emphasis added).
The CWA’s coverage of interstate waters is so
broad and comprehensive that it eliminated alternative remedies in interstate pollution cases. See City of
Milwaukee v. Illinois & Michigan, 451 U.S. 304, 33132 (1981) (CWA displaced federal common law); Ouellette, 479 U.S. at 494 (CWA preempted downstream
state’s common law); Arkansas v. Oklahoma, 503 U.S.
91, 98-100 (1992) (a downstream state’s remedy is to
enforce its water quality standard against an upstream state through the CWA’s permitting process).
The CWA therefore changed the mechanism for addressing this interstate pollution from what it had
been for the century preceding the CWA’s passage.
See, e.g., Am. Farm Bureau Fed’n v. EPA, 792 F.3d
281, 304 (3d Cir. 2015).
While, as discussed below, the Court has expressed some limits on the CWA’s broad statement of
jurisdiction, it has only done so in narrow contexts
and has not set out any jurisdictional limitations for
most categories of waters. The text and structure of
the CWA, and case law interpreting it, mandate a
broad understanding of CWA jurisdiction.
11
B.
The legislative history of the CWA
supports a broad reading of CWA jurisdiction that extends to the limits
of the Constitution.
United States statutes have protected navigable
waters and their tributaries since at least 1899,3 and
interstate waters and their tributaries since 1948.4
But Congress’ Commerce Clause authority to control
pollution is not limited to traditional tests of navigability, and Congress did not intend the CWA to be so
limited. See, e.g., Riverside Bayview, 474 U.S. at 13233. Instead, Congress intended to expand the jurisdictional scope of the CWA and to regulate broadly in order to eliminate water pollution and to restore and
protect entire “aquatic ecosystems” by protecting
their component parts as “waters of the United
States.” Id. (citing S. Rep. No. 92-414). Indeed, the
CWA expressly protects water quality in both intrastate and interstate waters, not just in downstream
traditional navigable waters. See 33 U.S.C.
§ 1313(a)(3)(A).
The Conference Report accompanying the CWA
explains that Congress intended that the term “navigable waters” be given “the broadest possible constitutional interpretation.” S. Conf. Rep. No. 92-1236, at
3 See Rivers and Harbors
Appropriation Act of 1899, also
later known as the Refuse Act, 33 U.S.C. § 407 (making it unlawful to discharge refuse “into any navigable water of the
United States, or into any tributary of any navigable water from
which the same shall float or be washed into such navigable water”); see also United States v. Standard Oil Co., 384 U.S. 224,
229-30 (1966).
4 See Water Pollution Control Act, Pub. L. No. 80-845, 62
Stat. 1155 (June 30, 1948); id. §§ 2(a), 2(d)(1), 2(d)(4), (5).
12
144 (1972). The CWA “defines the term ‘navigable waters’ broadly for water quality purposes. It means all
‘the waters of the United States’ in a geographical
sense. It does not mean ‘navigable waters of the
United States’ in the technical sense as we sometimes
see in some laws. . . . [T]his new definition clearly encompasses all water bodies, including main streams
and their tributaries, for water quality purposes.” 118
Cong. Rec. 33756-57 (1972) (emphasis added). And
“[n]o Congressman’s remarks on the [CWA] were complete without reference to the ‘comprehensive’ nature
of the [legislation].” City of Milwaukee, 451 U.S. at
318.
In one of the first decisions interpreting the CWA,
the court explained how Congress has broad authority
to control pollution, noting “water pollution has a serious effect on interstate commerce and . . . Congress
has the power to regulate activities such as dredging
and filling which cause such pollution. . . . Congress
and the courts have become aware of the lethal effect
pollution has on all organisms. Weakening any of the
life support systems bodes disaster for the rest of the
interrelated life forms.” United States v. Holland, 373
F. Supp. 665, 673 (M.D. Fla. 1974).
The EPA and the House Committee on Government Operations agreed with the decision in Holland.
See Letter from Russell Train, EPA Administrator, to
General Gribble (June 19, 1974), in Section 404 of the
Federal Water Pollution Control Act Amendments of
1972: Hearings Before the Senate Comm. on Pub.
Works, 94th Cong., 2d Sess. 349 (1976) (EPA expressing that “the Holland decision provides a necessary
step for the preservation of our limited wetland resources,” and that “the [Holland] court properly
13
interpreted the jurisdiction granted under the [CWA]
and Congressional power to make such a grant.”).
Soon after, the House Committee on Government
Operations concluded that the Corps should adopt the
broader view of the term waters of the United States
taken by the EPA and by the court in Holland. See
H.R. Rep. No. 93-1396, at 23-27 (1974). The Committee urged the Corps to adopt a new definition that
“complies with the congressional mandate that this
term be given the broadest possible constitutional interpretation.” Id. at 27 (internal quotation marks
omitted).
As this Court explained, “[i]n adopting this definition of ‘navigable waters,’ Congress evidently intended to repudiate limits that had been placed on
federal regulation by earlier water pollution control
statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that
would not be deemed ‘navigable’ under the classical
understanding of that term.” Riverside Bayview, 474
U.S. at 133.
Congress did not premise this expansion of jurisdiction on how waters were connected to traditional
navigable or interstate waters. To the contrary, Congress intended to repudiate the traditional navigability tests and limitations on federal authority, and to
instead use the full authority of the federal government under the Commerce Clause to regulate water
pollution in “virtually all surface water in the country.” Ouellette, 479 U.S. at 486; see, e.g., New York v.
United States, 505 U.S. 144, 167 (1992) (citing Hodel
v. Va. Surface Min. & Reclamation Ass’n, Inc., 452
14
U.S. 264, 288 (1981); Arkansas v. Oklahoma, 503 U.S.
at 101).
Even after the CWA was passed in 1972, legislative history confirms Congress’ understanding of an
expansive scope for the CWA. While Congress considered narrowing the scope of the CWA in 1977, congressional “efforts to narrow the definition of ‘waters’
were abandoned,” and Congress “‘retain[ed] the comprehensive jurisdiction over the Nation’s waters exercised in the 1972 Federal Water Pollution Control
Act.’” Riverside Bayview, 474 U.S. at 136-137 (citation
omitted).
As Senator Baker explained, “[c]ontinuation of the
comprehensive coverage of this program is essential
for the protection of the aquatic environment. The
once seemingly separable types of aquatic systems
are, we now know, interrelated and interdependent.
We cannot expect to preserve the remaining qualities
of our water resources without providing appropriate
protection for the entire resource.” 123 Cong. Rec.
26718 (1977).
II.
SWANCC and Rapanos Are Narrow Decisions that Should Not Be Expanded to
Other Types of Waters.
Petitioners and their amici continue to focus primarily on Solid Waste Agency of N. Cook Cnty. v. U.S.
Army Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC)
and Rapanos v. United States, 547 U.S. 715 (2006).
But these cases provide only narrow holdings that
should not be transposed onto other categories of waters and do not overrule previous Supreme Court
precedent confirming the exceptional breadth of the
CWA. See, e.g., Rapanos, 547 U.S. at 731 (“We need
15
not decide the precise extent to which the qualifiers
‘navigable’ and ‘of the United States’ restrict the coverage of the Act.”) (Scalia, J., plurality opinion). Because the instant dispute over petitioners’ property
can and should be decided under Riverside Bayview
and Rapanos, such expansion is not even at issue
here.
The SWANCC Court held only “that 33 CFR
§ 328.3(a)(3) (1999), as clarified and applied to petitioner’s balefill site pursuant to the ‘Migratory Bird
Rule,’ 51 Fed. Reg. 41217 (1986), exceeds the authority granted to respondents under § 404(a) of the
CWA.” 531 U.S. at 174. The SWANCC decision was
particularly fact specific as to the petitioner’s abandoned sand and gravel pit; it related solely to CWA
Section 404 jurisdiction under the Migratory Bird
Rule and did not address CWA jurisdiction over any
other categories of waters. SWANCC has no application to this case.
Rapanos addressed an analogous jurisdictional issue, and is certainly relevant to CWA jurisdiction over
the wetlands on petitioner’s property, but not in the
way petitioners suggest. Rapanos was narrow; the issue presented was the extent of CWA jurisdiction over
wetlands adjacent to non-navigable tributaries to traditional navigable waters. 547 U.S. at 786-87. The
Court did not limit CWA jurisdiction over any other
category of water and did not overrule any of the Supreme Court precedent confirming the breadth of
CWA jurisdiction over the nation’s waters discussed
above.
The wetland on the Sacketts’ property is jurisdictional under Rapanos for all the reasons explained in
16
respondents’ brief. This is also consistent with the
Court’s holding in Riverside Bayview and the regulatory definition at 33 C.F.R. § 328.3 (2008) based on
the wetlands’ direct adjacency to a jurisdictional tributary to Priest Lake and to Priest Lake itself.5 Because this dispute can be decided under the existing
tests, there is no cause to either overturn EPA’s decision or to lay out a new test that applies to this category of wetlands.
More broadly, though, the issue of what test applies to any other category of “waters” is not, and
need not be, before the Court. The Court should not
endorse attempts by other litigants here to expand
their interpretations of SWANCC and Rapanos to
other waters or to create some new test that sweeps
more broadly than is necessary to resolve the narrow
dispute over petitioners’ wetlands. As discussed below, narrowing CWA jurisdiction as suggested by
these litigants would have serious economic, public
health, and water quality consequences.
III.
Any Test Based Solely on Connections to
Traditional Navigable Waters Would Exclude Iconic and Important Waters of the
United States.
Eliminating federal jurisdiction over certain categories of waters and leaving regulation of those
5 The district court also found that EPA’s alternative basis
for jurisdiction, adjacency, and likely direct subsurface flow into
Priest Lake 300 feet away, was also not arbitrary and capricious
and was also sufficient for CWA jurisdiction purposes. Sackett v.
EPA, No. 2:08-cv-00185-EJL, 2019 WL 13026870, at *9-10 (D.
Idaho Mar. 31, 2019). However, the Ninth Circuit did not rely on
or discuss this alternative jurisdictional basis.
17
categories solely to the states would doom the CWA’s
objective and goals to failure. Congress passed the
CWA because the states had been unable to adequately control water pollution—with burning rivers,
massive fish kills, declining shellfish populations, and
closed beaches capturing public attention.6 These incidents made clear the need for the CWA to protect
national interests. See, e.g., EPA v. Cal. ex rel., 426
U.S. at 202-09; Am. Farm Bureau Fed’n, 792 F.3d at
309.
A jurisdictional test adequate to protect one category of waters will not adequately protect all other
categories of the nation’s waters. The waters of the
United States appear in countless forms with varying
interconnections and functions in aquatic ecosystems.
Pollution or destruction of each type of waters will
present differing types of adverse impacts on interstate commerce.
The EPA and the Corps first promulgated regulations defining waters of the United States in the mid1970s. See, e.g., 40 C.F.R. § 122.2 (2015); 33 C.F.R.
§ 328.3 (2015) (1970s Regulatory Definition). That
definition is currently in effect and was the definition
when the EPA made the jurisdictional determination
for the wetland on petitioners’ property. It asserts jurisdiction over traditionally navigable waters, interstate waters, tributaries to those (and other) jurisdictional waters, wetlands adjacent to other
6 N. William Hines, History of the 1972 Clean Water Act: The
Story Behind How the 1972 Act Became the Capstone on a Decade
of Extraordinary Environmental Reform, 4 Geo. Wash. J. Energy
& Envtl. L. 80 (Summer 2013), available at https://
gwjeel.com/wp-content/uploads/2013/10/4-2-hines.pdf.
18
jurisdictional waters, and any “other waters,” the use,
degradation, or destruction of which could affect interstate or foreign commerce. See, e.g., 40 C.F.R.
§ 122.2 (2015); 33 C.F.R. § 328.3 (2015). The 1970s
Regulatory Definition has not been overturned by this
Court’s numerous cases addressing CWA jurisdiction
through application of the definition. See, e.g., Riverside Bayview, 474 U.S. at 131, 135.
Rather than attempt a single rule that addresses
jurisdiction over all categories of waters based on, for
example, their surface connection to other jurisdictional waters or significant nexus to traditional navigable waters, the 1970s Regulatory Definition appropriately recognizes that there are numerous distinct
categories of waters that are jurisdictional for distinct
reasons.
As explained below, many vital waters of national
importance could suddenly become non-jurisdictional
and lose their long-standing CWA protections under
the tests proposed by petitioners and their amici
here.7 Such a result would be contrary to the CWA
and preclude achievement of the Act’s objective.
7 For example, petitioners assert that the CWA only protects
narrowly defined interstate traditionally navigable waters and
intrastate navigable waters “forming segments of an interstate
channel of commerce.” See Petr’s. Br. 22-24, 43-44. Under this
unfounded theory, only wetlands with a “continuous surface-water connection” to this narrow class of waters can be protected by
the CWA. Id.
19
A.
Crater Lake
Figure 1: Panoramic View of Crater Lake in
Crater Lake National Park, Oregon8
To see the difficulty in basing a CWA test on traditional notions of navigability, the Court need look
no further than Crater Lake, the deepest lake in the
United States and one of the clearest and cleanest
lakes in the world.9
The lake rests in a collapsed volcano at the heart
of Crater Lake National Park. More than half a million people visit it each year, fishing, swimming, and
spending tourist dollars around the lake.10
Yet Crater Lake would fail many of the tests proffered in this case. It is fed by snowmelt and rainfall,
8 Epmatsw, Panorama Photo of Crater Lake, Oregon, USA
(Aug. 2, 2013), available at https://commons.wikimedia.org/wiki/
File:Crater_Lake_Panorama,_Aug_2013.jpg.
9 U.S. Dep’t of Interior Nat’l Park Serv., Final General Mgmt.
Plan/Envtl. Impact Statement, Crater Lake Nat’l Park 3-4 (May
2005), available at http://npshistory.com/publications/crla/gmpeis-2005.pdf (Crater Lake EIS).
Nat’l Park Serv., Crater Lake, Frequently Asked Questions, https://www.nps.gov/crla/faqs.htm (last visited June 13,
2022).
10
20
and water leaves by evaporation and seepage through
porous volcanic rock.11 There are no known surface or
subsurface connections to any other waterway,12 and
the lake has been deemed not navigable under the
traditional definition in at least two contexts.13 Yet,
like so many other bodies of water, Crater Lake is a
dynamic part of a far broader aquatic ecosystem.
About 2 million gallons of water seep from the lake
every hour, even though no one has been able to trace
directly where this water goes.14
It is currently protected under the CWA as an Outstanding Resource Water,15 but if CWA jurisdiction
11 Id.
12 Id.; Crater Lake EIS, supra n.9, at 3 (“There are no inlets
or outlets to the lake”).
13 See U.S. Coast Guard, Navigability Determinations for the
Thirteenth District 5, available at https://www.pacificarea.
uscg.mil/Portals/8/District_13/dpw/docs/Navigability_Determination_for_the_13th_Coast_Guard_District.pdf?ver=2017-0620-135946-777 (“Crater Lake, OR . . . Located entirely within
Crater Lake National Park. While not navigable, entire lake is
‘water subject to the jurisdiction of the U.S.’”); U.S. Army Corps
of Eng’rs, Portland District, Navigable Waters Lists (Oct. 1993),
available at https://www.nwp.usace.army.mil/Portals/24/docs/
regulatory/jurisdiction/Navigable_US_Waters_Oregon_1993.pdf
(Crater Lake is not included on the list).
U.S. Dep’t of the Interior, 12 Things You Didn’t Know
About Crater Lake Nat’l Park (May
21,
2018),
https://www.doi.gov/blog/12-things-you-didnt-know-aboutcrater-lake-national-park (No. 12).
14
15 Letter from Daniel Opalski, U.S. EPA Region 10 Director,
to Justin Green, Water Quality Administrator, Or. Dept. Envtl.
Quality (March 12, 2021), available at https://www.epa.gov/
sites/default/files/2021-03/documents/wqs-oregon-orw-3-122021.pdf.
21
were limited to only waters that possess surface connections to a traditional navigable water, Crater Lake
and countless other lakes might lose CWA protection.
Any definition of “waters” that depends on traditional notions of navigability, or that is based on erroneous assumptions about how all waters flow to the
sea, will exclude waters of significant national importance from federal protection.
B.
New Mexico’s Closed Basins
Figure 2: Mimbres River, Aldo Leopold Wilderness,
within a closed basin in New Mexico16
A narrow interpretation of CWA jurisdiction could
also eliminate CWA protections for “closed basin” water systems, which have no surface connection to traditional navigable waters. Roughly 20% of New Mexico lies within these closed basins, including part of
16Anthony Zuefeldt, Flickr (Oct. 9, 2014), https://www.flickr.
com/photos/121467282@N02/17372918332.
22
the Mescalero Apache Reservation,17 and they provide water for aquatic habitat, irrigation, recreation,
and drinking in areas with scarce water resources.18
These closed basins are home to portions of two
National Wilderness Areas that contain CWA designated Outstanding National Resource Waters.19 New
Mexico’s closed basins also intersect federal lands and
many areas of national importance, such as the White
Sands National Park, Lake Holloman, Organ Mountains Desert Peaks National Monument, and several
national forests.20
The closed basins contain diverse waters, including 84 miles of perennial streams, 3,900 miles of intermittent waters, and 4,000 playa wetlands.21 These
waters are vital to the health and welfare of the
17 Waterkeeper Alliance et al., Comments on U.S. EPA, Re-
vised Definition of Waters of the United States Vol. 8, Ex. 16 (Feb.
8, 2022), available at https://www.regulations.gov/comment/
EPA-HQ-OW-2021-0602-0307
(Waterkeeper
Comments)
(Waterkeeper Alliance Maps of New Mexico Closed Basins).
18 Id. at Vol. 8, Ex. 20, at 3 (New Mexico Department of Game
and Fish Letter to EPA with Comments on EPA’s Advance Notice of Proposed Rulemaking on the Clean Water Act Definition
of Waters of the United States (Apr. 15, 2003)).
19 U.S. EPA, New Mexico Standards for Interstate and Intra-
state Surface Waters § 20.6.4 (July 24, 2020), available at https://
www.epa.gov/sites/default/files/2014-12/documents/nmwqs.pdf.
Waterkeeper Comments, supra n.17, at Vol. 8, Ex. 16
(Waterkeeper Alliance, Maps of New Mexico Closed Basins).
20
21 Waterkeeper Comments, supra n.17, at Vol. 8, Ex. 17, at 3
(Written Testimony of Ron Curry, Secretary of the New Mexico
Environment Department, before the U.S. House of Representatives Transportation and Infrastructure Committee Regarding
the Clean Water Restoration Act (H.R. 2421) (July 17, 2007)).
23
people and wildlife that reside within those basins,
New Mexico’s economic development, and the many
out-of-state visitors that enjoy their unique recreational opportunities.22
These basins are important aquatic ecosystems
and provide vital resources to communities and tribes
who rely on drinking water from the closed basins’
water sources, some of whom drink directly from the
closed basin rivers.23 These closed basins also have
many other links to interstate and foreign commerce,
including irrigating crops sold in interstate and foreign commerce, providing mineral resources dependent on good water quality (such as salt), and creating
recreational and other opportunities for interstate
and foreign travelers.24
Waters within these closed basins are subject to
pollutant discharges from many sources, including
the Freeport-McMoRan (formerly Phelps Dodge)
Santa Rita copper mine, federal facilities, and municipal wastewater treatment plants.25 The loss of CWA
protections would be particularly devastating in New
Mexico because it is one of just three states that lack
delegated CWA authority from the EPA to regulate
pollution discharges into rivers, streams, and lakes,
22 Waterkeeper Comments, supra n.17, at Vol. 8, Ex. 19, at
3-6 (Memo from Gov. Bill Richardson to EPA Regarding 33
C.F.R. § 328.3 (Mar. 5, 2003)).
23 Id.
24 See id.
25 Id.; see also id. at
Vol. 8 Ex. 16 (Waterkeeper Alliance
Maps of New Mexico Closed Basins); id. at Vol. 10, Ex. 22 (New
Mexico Surface Water Coverage for New Mexico Under the Navigable Waters Protection Rule).
24
and there is thus no state permitting program to control pollution discharges.26 Any interpretation of
CWA jurisdiction that excludes these closed basins
would cause great harm to these waterways that are
of significant importance to the federal government,
the state, several tribes, local communities, and large
numbers of interstate and foreign visitors.
C.
Idaho’s Snake River Closed Basins
In east-central Idaho’s Snake River Basin, about
3,318,400 acres of the watershed is considered a
closed basin because the waterways are only connected to the Snake River via subsurface connections.27
See James C. Kenny, N.M. Envtl. Dep’t Cabinet Sec’y,
Comment on EPA Proposed Rulemaking 13 (Apr. 21, 2019),
available at https://www.regulations.gov/comment/EPA-HQOW-2018-0149-4964; see also U.S. EPA, New Mexico NPDES
Permits, https://www.epa.gov/npdes-permits/new-mexico-npdespermits (last updated Apr. 20, 2022); U.S. EPA, NPDES Permits
Around the Nation, https://www.epa.gov/npdes-permits (last updated Mar. 30, 2022).
26
27 See Waterkeeper Comments, supra n.17, at Vol. 1, Ex. 1,
at 331 (Waterkeeper Alliance Letter to EPA Regarding Revised
Definition of Waters of U.S. (Apr. 15, 2019)).
25
Figure 3: Big Lost River, Idaho28
Figure 4: Endangered Bull Trout,
Little Lost River Basin29
28 A. Hedrick, BLM Idaho, Flickr Lost River Valley, W. of
Mackay, Idaho (Aug. 23, 2012), https://tinyurl.com/4y7hf62p.
29 Bart Gammett, USFWS Pacific Region, Flickr, Bull Trout
Timber Creek—Little Lost River (Jan. 27, 2011), https://
26
This closed basin includes the drainages of five watersheds that play an important economic and ecological role already being harmed by pollution.30 There
are 1,029 named rivers and streams, as well as countless lakes, reservoirs, and wetlands31 that provide valuable aquatic resources in the closed basins. For example, the Big Lost River and Medicine Lodge Creek
provide habitat for rainbow trout, brook trout, and
cutthroat trout, and Little Lost Creek includes critical
habitat for bull trout, listed as threatened under the
federal Endangered Species Act.32
www.flickr.com/photos/usfwspacific/5393233881/in/photolist9dzJx4.
30 See Waterkeeper Comments, supra n.17, at Vol. 10, Ex. 24
(Waterkeeper Alliance Maps of Idaho Closed Basins, Impaired
Waters Map with layers from the EPA’s Facility Registry Service
NPDES Sites, U.S. Geological Survey National Hydrography
Dataset, U.S. Fish and Wildlife Service Federally Protected Species and Critical Habitat Data, and State of Idaho 303(d) Listed
Streams Data); Idaho Dep’t of Envtl. Quality, Idaho’s 2018/2020
Integrated Report: Appendix A 20 (Oct. 2020), available at
https://www2.deq.idaho.gov/admin/LEIA/api/document/download/14890.
31 See Waterkeeper Comments, supra n.17, at Ex. 24 (Water-
keeper Alliance Maps of Idaho Closed Basins, Impaired Waters
Map); Nw. Power & Conservation Counsel, Upper Snake Province Assessment 1-9, 1-11, 1-14–1-16, 1-21 (May 28, 2004), available at https://www.nwcouncil.org/sites/default/files/1IntroOverview.pdf (Upper Snake Province Assessment).
32 See Waterkeeper Comments, supra n.17, at Vol. 7, Ex. 15,
at 84 (Waterkeeper Alliance Fact Sheet for the Snake River Basin); U.S. Fish & Wildlife Serv., ECOS Environmental Conservation Online System, Bull Trout, https://ecos.fws.gov/ecp/species/8212 (last visited June 14, 2022); Idaho Fish & Game Idaho
Fishing Planner, Big Lost River, https://idfg.idaho.gov/ifwis/
27
Rivers and streams that flow on the surface in this
closed basin eventually percolate into the volcanic
Snake River Plain Aquifer, then emerge and flow into
the Snake River.33 The EPA has determined that portions of the Big Lost River and Mud Lake within the
closed basin are jurisdictional based on navigability.34
Yet many others are jurisdictional based on the “other
waters” category because their degradation could
harm interstate or foreign commerce (cropland irrigation and recreational fisheries that attract anglers
from throughout the United States).35 Several CWA
Section 402 permits currently control pollution discharges into the closed basin and many streams
within the closed basin are listed on Idaho’s CWA Section 303(d) List of Impaired Waters.36
fishingplanner/water/1128381437946 (last visited June 14,
2022); Idaho Fish & Game Idaho Fishing Planner, Medicine
Lodge Creek, https://idfg.idaho.gov/ifwis/fishingplanner/water/
1124550440922 (last visited June 14, 2022); Idaho Fish & Game
Idaho Fishing Planner, Little Lost River, https://idfg.idaho.gov/
ifwis/fishingplanner/water/1129730437665 (last visited June 14,
2022).
33 See Waterkeeper Comments, supra n.17, at Vol. 7, Ex. 15,
at 82 (Waterkeeper Alliance Fact Sheet for the Snake River Basin); Upper Snake Province Assessment, supra n.31, at 1-7; 1-10–
1-11.
34 Earthjustice et al., Reckless Abandon: How the Bush Ad-
ministration Is Exposing America’s Waters to Harm 12-13 (Aug.
2004), available at https://www.nwf.org/Educational-Resources/
Reports/2004/08-12-2004-Reckless-Abandon.
35 Id.
36 Waterkeeper Comments, supra n.17, at Vol. 10,
Ex. 24
(Waterkeeper Alliance Maps of Idaho Closed Basins, Upper
Snake Closed Basin EPA FRS NPDES Permits and Upper Snake
28
If the CWA were misinterpreted to only protect
waters with surface connections to traditional navigable waters, it could eliminate CWA protections for waters considered non-navigable, including the Little
Lost River and much of the Big Lost River.37 This loss
of protections would leave these, and other, rivers
subject to water pollution not subject to any federal
minimum standards and would thus harm the uses
these rivers support.
Closed Basin 303d Impaired Waters in Red); Idaho Dep’t of Envtl. Quality, Idaho’s 2018/2020 Integrated Report, supra n.30, at
20.
37 See, e.g., Ariel Wittenberg, The River Disappears, but the
Pollution Doesn’t, E&E News (July 16, 2019 12:59 PM),
https://www.eenews.net/articles/the-river-disappears-but-thepollution-doesnt/#:~:text=First%20in%20a%20series.,desert
%20here%20and%20simply%20ends (“Mackay Reservoir on the
Big Lost River is navigable, so any constant or intermittent flows
of the Big Lost or its tributaries upstream from the reservoir
have always been and would continue to be regulated under the
new rule. But water downstream from the reservoir does not
have a surface water connection to ‘navigable’ waters, meaning
the rest of the Big Lost River would not be regulated.”).
29
D.
Lower Galveston Bay Watershed
Figure 5: Harris County wetland loss relative to
FEMA 100-year floodplain. Red areas are NWI wetlands that have been lost to development. Green areas
are undeveloped. 100-year floodplain data is in brown.
Figure 6: Bayou Vista near Galveston Bay
(Photo Credit: Dan Thibodeaux)
30
Figure 7: Wetland at Sheldon Lake State Park
(Photo Credit: Bayou City Waterkeeper)
The roughly 4,000 square-mile Lower Galveston
Bay watershed, encompassing the greater Houston,
Texas region, is an ecologically diverse area with
abundant water in the form of rivers, creeks, bayous,
coastal marshes, estuaries, wetlands, bays, and the
Gulf of Mexico.
The freshwater wetlands in this ecosystem “are a
critical part of the aquatic integrity of [the] regional
bayous and bays.”38 Texas coastal prairie wetlands
John S. Jacob, Texas A&M Univ. AgriLife Ext., Texas
Coastal Watershed Program, Upper Texas Gulf Coast Pothole
Wetlands 3 (March 2011), available at https://cdn-ext.agnet.tamu.edu/wp-content/uploads/2019/03/ESP391-upper-texasgulf-coast-pothole-wetlands-new-research-shows-significant38
31
were formed thousands of years ago by ancient rivers
and bayous and are found along the Gulf of Mexico
from western Louisiana to south Texas.39 These wetlands are “the headwaters for virtually all of the water bodies feeding into Galveston Bay”40 and serve a
range of important, valuable functions.41
These wetlands provide numerous benefits, but
most notably they prevent flooding by absorbing
storm water and buffering against surges.42 The
greater Houston region has repeatedly experienced
floods and storm surges, including 2017’s Hurricane
Harvey that caused more than 100 deaths and $125
billion in damage.43 The region’s long-term resilience
and-profound-hydrologic-connections-to-galveston-bay-andother-area-waters.pdf.
39 U.S. EPA & U.S. Dep’t of the Army, Technical Support
Document for the Clean Water Rule: Definition of Waters of the
United States 348 (May 27, 2015), available at https://www.regulations.gov/document/EPA-HQ-OW-2011-0880-20869
(2015
TSD).
40 John S. Jacob et al., Texas A&M Univ. AgriLife Ext., Hou-
ston-Area Freshwater Wetland Loss, 1992–2010 2, 10 (May
2014), available at https://tcwp.tamu.edu/files/2015/06/WetlandLossPub.pdf (Houston Wetland Loss) (“Four types of natural
freshwater wetlands occur in the study area: barrier island interior wetlands, coastal flatwoods wetlands, prairie pothole wetlands, and riverine forested wetlands.”).
41 See, e.g., id. at 1 (Wetlands functions “includ[e] detaining
stormwater, controlling erosion, storing and cleansing water,
and providing places for recreation for people and habitat for
wildlife.”).
42 Id. at 12-13.
43 Univ. of Houston, Hobby School of Public Affairs, The Im-
pact of Hurricane Harvey, https://uh.edu/hobby/harvey/ (last
32
to major storms depends in large part on the protection of existing freshwater wetlands.
Freshwater wetlands are also critical for filtering
polluted surface water before it makes its way into
Houston’s drinking water supplies and Galveston
Bay, which provides places for paddling, fishing, and
birdwatching and creates billions of dollars of benefits
for the region’s communities.44
For example, much of the surface runoff entering
Galveston Bay first passes through Texas coastal
prairie wetlands, which reduce incoming inorganic nitrogen pollution by around 98% and inorganic phosphorus pollution by 92%45 and are essential to avoiding nutrient pollution and toxic algal blooms that
plague other waters across the country.46
visited June 15, 2022); Eric S. Blake & David A. Zelinsky, National Hurricane Center, Tropical Cyclone Report: Hurricane
Harvey 9 (May 9, 2018), available at https://www.nhc.noaa.gov/
data/tcr/AL092017_Harvey.pdf (Hurricane Harvey is tied with
Hurricane Katrina as the nation’s costliest storm.).
44 Houston Wetland Loss, supra n.40, at 12-13.
45 Margaret G. Forbes et al., Nutrient Transformation & Re-
tention by Coastal Prairie Wetlands, Upper Gulf Coast, Texas, 32
Wetlands 705, 710 (May 17, 2012), available at https://
doi.org/10.1007/s13157-012-0302-z.
46 Galveston Bay Found., Galveston Bay Report Card: Water
Quality, https://www.galvbaygrade.org/water-quality/ (last visited June 14, 2022); U.S. EPA, Mississippi River/Gulf of Mexico
Hypoxia Task Force, Hypoxia 101, https://www.epa.gov/mshtf/hypoxia-101 (last updated June 9, 2022); see also 2015 TSD,
supra n.39, at 348-49 (confirming that Texas coastal prairie wetlands can filter pollutants and store precipitation with the potential to decrease flooding).
33
Many of these wetlands do not directly abut, nor
do they have continuous surface connections to, another jurisdictional water, and so they would not qualify as “waters of the United States” under the test proposed by petitioners and some of their amici. Yet scientific research demonstrates that these “geographically isolated” waters are not hydrologically isolated,
but have extensive, regular hydrological connectivity
with nearby jurisdictional waters that account for a
“substantial percentage of the water budget” for the
receiving water.47 These wetlands have significant effects on downstream jurisdictional waters, including
Galveston Bay.48
Ensuring that Texas freshwater wetlands are protected by the CWA is especially important to the protection of the Lower Galveston Bay watershed because Texas does not have any laws in place to prevent or mitigate harm from wetland development.
This has already caused the loss of as much as 29% of
natural freshwater wetlands in some areas over an
18-year period.49
47 See Bradford P. Wilcox et al., Evidence of Surface Connec-
tivity for Texas Gulf Coast Depressional Wetlands, 31 Wetlands
451,
457
(Mar.
18,
2011),
available
at
https://
agrilifecdn.tamu.edu/urbannature/files/2012/06/2011Wilcox
Wetlands1.pdf; U.S. EPA, ORD Report: Connectivity of Streams
and Wetlands to Downstream Waters 6-6–6-8 (Jan. 2015), available at https://www.regulations.gov/document/EPA-HQ-OW2011-0880-20858.
48 Id.
49 Houston Wetland Loss, supra n.40, at Summary, 8 (The
greatest loss of Texas coastal wetlands has occurred in Harris
County with “more than double that of the [seven neighboring]
34
Continuing losses “will very likely have grave implications for the long-term health of the Galveston
Bay System,” which will lose its “principal means of
cleaning the polluted runoff that enters the bay.”50
These losses will also increase Houston’s flood risk—
the wetlands that have already been lost would have
been able to handle nearly four billion gallons of
storm water, and every new loss increases the risk for
future flooding.51 Any reading of the CWA that eliminates jurisdiction over some or all of these freshwater
wetlands would harm the greater Houston region, its
seven million residents, and the surrounding environment and would prevent realization of the CWA’s objective and goals.
counties combined.”); Geotechnology Research Institute et al.,
Galveston Bay Wetland Mitigation Assessment & Local Government Capacity Building 12 (Aug. 2014), available at https://
harcresearch.org/wp-content/uploads/2021/02/GALVESTONBAY-WETLAND-MITIGATION-ASSESSMENT-REPORT1.pdf.
50 Houston Wetland Loss, supra n.40, at Summary.
51 Id. at 12.
35
E.
San Francisco Bay Watershed
Figure 8: Map of the San Francisco Bay Watershed,
and the San Francisco Bay-Delta (inset) 52
52 Gregory J. Reis et al., Clarifying Effects of Environmental
Protections on Freshwater Flows to—and Water Exports from—
the San Francisco Bay Estuary, San Francisco Estuary & Watershed Science, March 2019, at 5, available at https://escholarship.org/uc/item/8mh3r97j.
36
Figure 9: Photo of San Joaquin River, June 8, 2022,
with no flow (Photo Credit: SF Baykeeper).
Figure 10: Guadalupe River at Foxworthy Rd. Overpass in San Jose, April 12, 2021 (left), and May 26,
2022 (right) with and without flow
(Photo Credit: SF Baykeeper).
37
The two largest rivers in California, the Sacramento and the San Joaquin, drain 40% of the state via
the San Francisco Bay-Delta, where these fresh waters meet the Pacific Ocean.53 The resulting ecosystems provide a home for species that exist nowhere
else in the world, as well as a diverse array of fish and
wildlife, see Cal. Wat. Code § 85002, and are used for
recreation, fishing, and religious practices. These
lands also provide drinking water for over 25 million
Californians and irrigation water for hundreds of
thousands of acres of farmland.54
Because of California’s limited wet season, half of
the rivers, creeks, and streams are intermittent and
so do not run year round, and another third are
ephemeral, lacking connection to groundwater and
only flowing during or after precipitation.55 Nearly
See Cal. State Water Res. Control Bd., Development of
Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem
25 (Aug. 3, 2010), available at https://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/
deltaflow/docs/final_rpt080310.pdf; Cal. State Water Res. Control Bd., Water Quality Control Plan for the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary 1 (Dec. 13, 2006),
available at https://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/wq_control_plans/2006wqcp/
docs/2006_plan_final.pdf (2006 Bay-Delta Plan); see also U.S.
EPA, San Francisco Bay Delta: About the Watershed, https://
www.epa.gov/sfbay-delta/about-watershed#about (last updated
June 13, 2022).
53
54 2006 Bay-Delta Plan, supra n.53, at 1; see also Cal. State
Water Res. Control Bd., Development of Flow Criteria for the
Sacramento-San Joaquin Delta Ecosystem, supra n.53, at 25.
55 Lainie Levick et al., The Ecological and Hydrological Sig-
nificance of Ephemeral and Intermittent Streams in the Arid and
Semi-arid American Southwest, U.S. EPA, Nov. 2008, at 5-6,
38
85% of the streambeds that surround the San Francisco Bay and Delta lack year-round water.56 And that
figure is increasing with climate change.
More broadly, between two-thirds and 95% of the
streams in the Southwestern U.S. do not contain visible flows year-round.57 And in California, even the
second biggest river in the state, and a host of other
rivers, often are dry during the State’s dry season. See
Figure 9, supra (photo of San Joaquin River).
Requiring consistent visible flows or connections
to traditional navigable waters for CWA jurisdiction
could remove protection for most of these waters and
their interconnected wetlands. Such requirements
could cause waters to fall in and out of jurisdiction depending on whether there was flow when the application or decision was made, leading to unpredictable
jurisdictional determinations that leave downstream
waters unprotected.
These streams and their associated wetlands are
vital to downstream waters and ecosystems, providing the same functions as perennial waters: moving
water, nutrients, and soil. The CWA’s objective and
goals cannot be achieved in the San Francisco Bay,
the Delta, or its watershed without protecting these
available at https://www.epa.gov/sites/default/files/2015-03/documents/ephemeral_streams_report_final_508-kepner.pdf;
see
also San Francisco Baykeeper, Map of Intermittent and Ephemeral Streams in the Bay Area, available at https://waterkeeper.org/wp-content/uploads/2019/11/Bay_Area_WOTUS-FINAL.png.
56 San Francisco Baykeeper, Map of Intermittent and Ephem-
eral Streams in the Bay Area, supra n.55.
57 See Levick, supra, n.55, at 5 (Figure 3).
39
important headwaters, which requires proper recognition of broad jurisdiction over waters.
*
*
*
States remain insufficiently equipped to control
water pollution in the absence of the CWA’s authorities, standards, and resources. When the EPA sought
to slash its CWA jurisdiction in 2020, see 85 Fed. Reg.
22250 (April 21, 2020), new development projects
caused a sharp increase in unregulated discharges to
waters.58 While this jurisdictional rule was temporarily in place, these projects “proceeded in newly nonjurisdictional waters in states and on tribal lands that
do not and sometimes cannot, regulate waters beyond
those covered by the” CWA.59 Indeed, some states
weakened their regulations governing clean water,
58 See, e.g., Memorandum from U.S. EPA & U.S. Dep’t of the
Army on Review of U.S. Army Corps of Eng’rs ORM2 Permit and
Jurisdictional Determination Data to Assess Effects of the Navigable Waters Protection Rule, at 2-4 (June 8, 2021), available at
https://www.epa.gov/sites/default/files/2021-06/documents/3_final_memorandum_for_record_on_review_of_data_web_508c.pdf
(“The Corps’ ORM2 database contains AJDs that evaluated
40,211 individual aquatic resources or water features under the
NWPR between June 22, 2020 and April 15, 2020; of these individual aquatic resources, approximately 76% were found to be
non-jurisdictional by the Corps. . . . The agencies are aware that
projects are proceeding in newly non-jurisdictional waters in
states and tribal lands where regulation of waters beyond those
covered by the CWA are not authorized, and, based on available
information, will therefore result in discharges without any regulation or mitigation from federal or state agencies.”).
59 U.S. EPA & U.S. Dep’t of the Army, Technical Support
Document for the Proposed, Revised Definition of Waters of the
United States Rule 117 (Nov. 18, 2021), available at https://
www.regulations.gov/document/EPA-HQ-OW-2021-0602-0081.
40
starting a race to the bottom that the CWA was designed to avoid.60 The resultant harm to waters across
the nation undercuts arguments that the states will
step in and fill the regulatory gap if federal CWA jurisdiction over certain waters is eliminated.
Any reduction in CWA jurisdiction will have real
and immediate consequences on the nation’s waters
and will preclude achievement of the CWA’s water
quality and aquatic ecosystem protection objective
and goals. While the CWA has been effective in controlling pollution in many respects, significant pollution persists and is even increasing in many of the nation’s waters. The EPA’s most recent national summary data shows water pollution continues to impair
at least 588,173 miles of rivers and streams;
13,208,917 acres of lakes, ponds, and reservoirs;
44,625 square miles of bays and estuaries; 3,329 miles
of coastal shoreline; and 672,924 acres of wetlands.61
Limitation of CWA jurisdiction will exacerbate these
problems and, as discussed above, leave many nationally important and iconic waters without protection
against pollution and destruction.
CONCLUSION
For the reasons stated above, amici respectfully
ask this Court to affirm the Ninth Circuit’s decision.
Respectfully submitted,
60 Id. at 118.
61 Waterkeeper Comments, supra n.17, at Vol. 1, Ex. 2, at 2
(U.S. EPA National Summary of State Information).
41
ANNA-ROSE MATHIESON
CALIFORNIA APPELLATE LAW GROUP LLP
96 Jessie Street
San Francisco, CA 94105
(415) 649-6700
annarose@calapplaw.com
ERIC J. BUESCHER
SAN FRANCISCO BAYKEEPER
1736 Franklin Street, Suite 800
Oakland, Ca 94612
(510) 735-9700
eric@baykeeper.org
KRISTEN SCHLEMMER
BAYOU CITY WATERKEEPER
2010 N. Loop W. #103
Houston, TX 77018
(512) 619-1583
kristen@bayoucitywaterkeeper.org
KELLY HUNTER FOSTER
WATERKEEPER ALLIANCE INC.
303 S. Main Street, Suite A2
Carthage, MO 64836
(212) 747-0622
kfoster@waterkeeper.org
STUART WILCOX
ENVIRONMENTAL ADVOCATES
5135 Anza St.
San Francisco, CA 94121
(720) 331-0385
wilcox@enviroadvocates.com
June 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.