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

No. 21-454

IN THE

Supreme Court of the United States

MICHAEL SACKETT, ET UX.,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United

States Court of Appeals for the Ninth

Circuit

BRIEF OF AMICI CURIAE WATER RESOURCE

MANAGEMENT ORGANIZATIONS IN

SUPPORT OF RESPONDENTS

CAITLIN J. HALLIGAN

Counsel of Record

MAX H. SIEGEL

SELENDY GAY ELSBERG PLLC

1290 Avenue of the Americas

New York, New York 10104

(212) 390-9000

challigan@selendygay.com

Attorneys for Amici Curiae

QUESTION PRESENTED

Whether the Ninth Circuit set forth the proper test

for determining whether wetlands are “waters of the

United States” under the Clean Water Act, 33 U.S.C.

§ 1362(7).

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

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

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

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 5

I.

PETITIONERS’ NARROW

CONSTRUCTION OF WOTUS WOULD

LEAVE SUBSTANTIAL WATERS

UNREGULATED, TO DISASTROUS

EFFECT. ............................................................... 5

II.

THE EXTERNALITIES ASSOCIATED

WITH WATER POLLUTION AND

REGULATION REQUIRE A

COLLABORATIVE FEDERAL-STATE

SOLUTION. ........................................................ 14

A.

Leaving most water regulation to

states alone would create

perverse incentives. ................................ 17

B.

Under Petitioners’ reading of

WOTUS, downstream states

would suffer poorer water quality

and outsized flood risk. .......................... 19

ii

C.

Developers depend on the

certainty afforded by a floor of

uniform nationwide regulation. .......... 21

III. STATE, TRIBAL, AND LOCAL

GOVERNMENTS WOULD STRUGGLE

TO FILL THE REGULATORY GAPS

THAT WOULD BE LEFT BY

PETITIONERS’ TEST FOR WOTUS. ............... 22

A.

Much state and tribal regulation

is integrated with the federal

scheme. ...................................................... 22

B.

Petitioners’ interpretation of

WOTUS would result in

inefficiencies and impose heavy

costs on the states. .................................. 26

C.

Petitioners’ interpretation of

WOTUS would require individual

states to assume new roles in

responding to interstate

disasters. ................................................... 28

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ....................................... 15, 23

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ........................................... 16

In re Needham,

354 F.3d 340 (5th Cir. 2003) ............................. 28

Pascua Yaqui Tribe v. EPA,

557 F. Supp. 3d 949 (D. Ariz. 2021) .................... 7

Rapanos v. United States,

547 U.S. 715 (2006) ............................................. 3

United States v. Riverside Bayview Homes,

Inc.,

474 U.S. 121 (1985) ........................................... 10

Statutes

33 U.S.C. § 1251 ........................................ 3, 8, 23, 29

33 U.S.C. § 1313 ...................................................... 26

33 U.S.C. § 1321 ...................................................... 28

33 U.S.C. § 1341 .................................... 15, 23, 24, 26

33 U.S.C. § 1342 .............................................. passim

iv

33 U.S.C. § 1344 ...................................... 9, 24, 25, 26

33 U.S.C. § 1377 ........................................................ 4

33 U.S.C. § 1383 ...................................................... 27

Regulations

5 Colo. Code Regs. § 1002-82 .................................. 24

National Primary Drinking Water

Regulations: Long Term 2 Enhanced

Surface Water Treatment Rule, 68 Fed.

Reg. 47,640 (Aug. 11, 2003)............................... 10

Navigable Waters Protection Rule, 85 Fed.

Reg. 22,250 (Apr. 21, 2020) ................................. 7

Rules

Supreme Court Rule 37.6 ......................................... 1

Other Authorities

A Compilation of Cost Data Associated with

the Impacts and Control of Nutrient

Pollution, EPA (2015),

https://bit.ly/3m9NDCb ..................................... 15

Amicus Br. of Ass'n of State Wetland

Managers et al., Rapanos, 2006 WL

139206 ............................................................ 8, 18

v

Brenda Zollitsch & Jeanne Christie, Status

and Trends Report on State Wetland

Programs in the United States¸ ASS'N OF

STATE WETLAND MANAGERS (2016),

https://bit.ly/3M7hF3S ...................................... 24

Brian Campbell et al., APA Policy Guide on

Water, AM. PLANNING ASS'N (July 15,

2016), https://bit.ly/3N8ltmN ...................... 13, 14

Brian R. Levey, When States Assume:

Fulfilling Congress's Objectives Under

the Clean Water Act's Wetlands Program,

35 NAT. RESOURCES & ENV'T 9 (2020) ............... 25

Bruno Merz et al., Causes, Impacts and

Patterns of Disastrous River Floods, 2

NATURE REVS. EARTH & ENV'T 592 (2021) ........ 20

Cathy Kellon, Communicating Source Water

Protection Efforts in Consumer

Confidence Reports, AM. WATER WORKS

ASS'N (2018), https://bit.ly/3MLKVNW ........ 9, 10

Charles A. Taylor & Hannah Druckenmiller,

Wetlands, Flooding, and the Clean Water

Act, 112 AM. ECON. REV. 1334 (2022).... 11, 12, 13

Climate Change Policy Guide, AM. PLANNING

ASS'N (2020), https://bit.ly/3NLsDNE ............... 21

Comment Letter on “Waters of the United

States,” ASS'N OF STATE WETLAND

MANAGERS (Oct. 4, 2021),

https://bit.ly/3xssdp0 ............................... 7, 26, 27

vi

Cong. Research Serv., R43871, Funding for

EPA Water Infrastructure (2019) ..................... 27

Current Implementation of Waters of the

United States, EPA,

https://bit.ly/3NSvy7e .......................................... 7

Cynthia Bowen, What is Planning?, AM.

PLANNING ASS'N, https://bit.ly/3Q1pqeL ........... 13

D.A. Goolsby et al., Flux and Sources of

Nutrients in the Mississippi-Atchafalaya

River Basin, NAT'L OCEANIC &

ATMOSPHERIC ADMIN. (1999),

https://bit.ly/3aIZwwt ........................................ 19

Enbridge 2010 Kalamazoo River Oil Spill Natural Resource Damage Assessment

and Restoration, U.S. FISH & WILDLIFE

SERV., https://bit.ly/3NmjEmj ........................... 29

EPA Announces Historic Approval of

Florida's Request to Administer the

Clean Water Act Section 404 Program,

EPA (Dec. 17, 2020),

https://bit.ly/3NSkY00 ....................................... 25

EPA, EPA/600/R-14/475F, Connectivity of

Streams & Wetlands to Downstream

Waters (2015), https://bit.ly/3GKYbRp

.................................................................... passim

EPA FOIA Response (Sept. 5, 2017),

https://bit.ly/3tC9Z34 .......................................... 6

vii

Geographic Information Systems Analysis of

the Surface Drinking Water Provided by

Intermittent, Ephemeral, and Headwater

Streams in the U.S., EPA (2009),

https://bit.ly/3HsqtAO ......................................... 8

GUNTHER F. CRAUN ET AL., MICROBIAL

PATHOGENS AND DISINFECTION BYPRODUCTS IN DRINKING WATER (2001) .............. 10

Hossein Tabari, Climate change impact on

flood and extreme precipitation increases

with water availability, 10 SCI. REP.

13,768 (2020) ..................................................... 27

Hydrologic Unit Maps, U.S. GEOLOGICAL

SURVEY (Feb. 9, 2022),

https://on.doi.gov/3MfnUm6 .............................. 21

Idaho DEQ Becomes 47th State to Assume

NPDES Authority, ENVTL. COUNCIL OF

STATES (Aug. 27, 2021),

https://bit.ly/38JtQq1 ........................................ 25

Integrated Assessment of Hypoxia in the

Northern Gulf of Mexico, NAT'L SCI. &

TECH. COUNCIL (2000),

https://bit.ly/3m9i2Au ....................................... 19

J.L. Meyer & J.B. Wallace, Lost linkages in

lotic ecology: rediscovering small streams,

ECOLOGY: ACHIEVEMENT AND CHALLENGE

(M.C. Press et al., eds. 2001) ............................... 9

viii

James Salzman, Creating Markets for

Ecosystem Services, 80 N.Y.U. L. REV.

870 (2005) .......................................................... 17

Janet Larsen, Dead Zones Increasing in

World's Coastal Waters, EARTH POL'Y

INST. (June 16, 2004),

https://bit.ly/3xbbAiv ......................................... 18

John A. Morrice et al., Alluvial

characteristics groundwater-surface

water exchange and hydrological

retention in headwater streams, 11

HYDROLOGICAL PROCESSES 253 (1998) ................ 9

John R. Nolon, Flexibility in the Law: The

Re-engineering of Zoning to Prevent

Fragmented Landscapes, N.Y.L.J. 5 (Feb.

18, 1998)............................................................. 21

Ken J. Hall & Bruce C. Anderson, The

toxicity and chemical composition of

urban stormwater runoff, 15 CAN. J. CIV.

ENG'G 98 (1988) ................................................... 9

Martin D. Smith et al., Seafood Prices

Reveal Impacts of Major Ecological

Disturbance, 114 PROC. NAT'L ACAD. SCI.

1512 (2017) ........................................................ 19

Miranda Green, Internal EPA document

contradicts agency over existence of water

rule data, HILL (Dec. 11, 2018),

https://bit.ly/3xpxMVf ......................................... 6

ix

Nancy Rabalais, et al., Beyond science into

policy: Gulf of Mexico Hypoxia and the

Mississippi River, 52 BIOSCIENCE 129

(2002) ................................................................. 18

Nonpoint source impacts on primary

headwater streams, OHIO ENVTL. PROT.

AGENCY (2015), https://bit.ly/3akrL4b ........ 11, 12

Robert R.M. Verchick, Toward Normative

Rules for Agency Interpretation: Defining

Jurisdiction Under the Clean Water Act,

55 ALA. L. REV. 845 (2004) .................................. 7

S. REP. NO. 92-414 (1972), reprinted in 1972

U.S.C.C.A.N. 3668 ............................................. 15

Section 401 Certification Best Practices,

ASS'N OF STATE WETLAND MANAGERS

(2012), https://bit.ly/3wZcMEu.......................... 24

Supreme Court Decisions on Water

Resources: Hearing Before the Subcomm.

on Fisheries, Wildlife, and Water, 109th

Cong. (2006) ......................................................... 6

T.E. Dahl, Status and Trends of Wetlands in

the Conterminous United States 19972009, U.S. FISH & WILDLIFE SERV. (2014),

https://bit.ly/3aqDdLB ......................................... 7

TOM DANIELS & KATHERINE DANIELS, THE

ENVIRONMENTAL PLANNING HANDBOOK

FOR SUSTAINABLE COMMUNITIES AND

REGIONS (2003) ............................................ 14, 22

x

U.S. Army Corps of Engineers, Pub. L. 11620 Damage Repair Estimate (Sept. 25,

2019), https://bit.ly/3PWooAM .......................... 12

VLADIMIR NOVOTNY, WATER QUALITY (2d ed.

2002)................................................................... 10

W.H. Lowe & G. E. Likens, Moving

Headwater Streams to the Head of the

Class, 55 BIOSCIENCE 196 (2006) ............ 9, 14, 15

William J. Mitsch, et al., Reducing Nitrogen

Loading to the Gulf of Mexico from the

Mississippi River Basin, 51 BIOSCIENCE

373 (2001) .......................................................... 18

xi

INTERESTS OF AMICI CURIAE1

The National Association of Wetland Managers

(NAWM) is a national organization of state and tribal

regulators and other professionals who implement

key provisions of the Clean Water Act (CWA or Act),

as well as state and tribal regulations. NAWM

promotes the use of sound science, law, and policy in

state and tribal water-protection programs.

The Association of State Floodplain Managers

(ASFPM) is a scientific and educational organization

with over 7,000 members, including floodplain

managers, government officials, and industry

representatives. It is dedicated to reducing flood loss

through education, research, and awareness.

The American Planning Association (APA) is an

organization of over 40,000 planning professionals

who work to create sustainable communities. Through

education and outreach, the association helps

planners promote the health, safety, and economic

wellbeing of all residents of developments.

The American Water Works Association (AWWA) is

an international, nonprofit, scientific, and educational

society, dedicated to providing solutions to ensure the

1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae

states that no counsel for a party authored this brief in whole or

in part, and no person or entity other than amici curiae or their

counsel made a monetary contribution to this brief’s preparation

or submission. All parties have consented to the filing of this

brief.

effective management of water. AWWA is the largest

water association in the United States. Its 4,303

public water system members supply roughly 80% of

the drinking water and treat nearly half the

wastewater in the United States.

The New England Interstate Water Pollution

Control Commission (NEIWPCC) advances water

quality in the Northeast through collaboration with,

and service to, its member states. It brings together

water quality professionals, scientists, and other

experts from across state boundaries to collaborate on

clean water and environmental protection.

The activities of amici’s members are subject to the

CWA’s requirements, and their goals are supported by

the Act’s protections.

SUMMARY OF ARGUMENT

On the front lines of our country’s water

management stand wetland managers, floodplain

managers,

planners,

and

water

treatment

professionals. Wetland managers work at the federal,

state, and tribal levels, in collaboration with private

actors, to protect the Nation’s headwaters, wetlands,

streams, and tributaries—the sources of most of the

Nation’s water supply. Floodplain managers rely on

state and federal protections to prevent flooding.

Community planners work alongside developers and

architects to ensure that newly built communities will

have safe and reliable supplies of water. And water

treatment professionals strive to provide Americans

with safe, affordable drinking water.

2

These critical efforts would be significantly

compromised by Petitioners’ narrow interpretation of

the Clean Water Act’s key jurisdictional phrase,

“waters of the United States” (WOTUS), with

devastating national consequences. Petitioners’

reading would undermine the “chemical, physical, and

biological integrity” of our Nation’s waters, allow for

greater “discharge of pollutants,” and jeopardize

“water quality”—all contrary to the Act’s goals. 33

U.S.C. § 1251(a).

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

the dispositive opinion held that WOTUS reaches all

water bodies that have a “significant nexus with

navigable waters.” Id. at 759 (Kennedy, J., concurring

in the judgment). Such waters, Justice Kennedy

explained, are “integral parts of the aquatic

environment.” Id. at 779.

Petitioners (at 22-24) propose abandoning that

interpretation and replacing it with a novel test that

is more restrictive than any standard adopted by this

Court or applied by the EPA or Army Corps of

Engineers (Corps). Petitioners ask this Court to read

WOTUS to reach wetlands only if they have “a

continuous surface water connection” to a

“hydrographic feature ordinarily referred to as a

‘water,’” such that “it is difficult to say where the

wetland ends and the ‘water’ begins.” Petitioners also

ask this Court to limit WOTUS to waters that are

navigable in fact. This test is narrower than the

Rapanos plurality’s interpretation rejected by Justice

3

Kennedy. If adopted, it would dramatically curtail the

scope of the Clean Water Act and, in turn, severely

impede the work of frontline professionals who protect

our Nation’s waters.

I. Petitioners’ proposed interpretation of WOTUS

would exclude vast swaths of the Nation’s waters from

coverage under the Act, including vulnerable waters

that substantially benefit human welfare. The result

would be a reduction in drinking water quality, more

frequent severe floods, and barriers to development.

II. Individual states’ decisions about water

pollution and regulation often yield externalities.2 If

federal regulation is curtailed, upstream states will be

able to allow many more discharges and shift the costs

of regulation to downstream states, which will face

greater threats to water quality. Uneven state

regulation will also lead to costs and uncertainty:

States will have to undertake the efforts previously

taken by the federal government; downstream water

managers and developers will struggle to predict

upstream water quality; and multistate entities will

face varied regulations.

III. States would face sizable regulatory gaps

under Petitioners’ narrow reading of WOTUS. Most

states’ regulatory schemes are built on the cooperative

federal-state partnership embedded in the Act. Were

the federal role to be curtailed, state regulatory

In this brief, references to “states” include tribes that have

received authority to be treated as states under 33 U.S.C. § 1377.

2

4

programs would need to be significantly reworked.

Even if that could be accomplished, state-level

regulators would face substantial inefficiencies and

added costs, and states would find it hard to tackle

some challenges, such as oil spills, at all.

ARGUMENT

The critical efforts of water management

professionals would be greatly compromised by the

restrictive interpretation of “waters of the United

States” advanced by Petitioners. The Act has long

protected wetlands, headwaters, and streams that are

crucial to maintaining water quality and preventing

floods, but may not be navigable in fact and may lack

a permanent flow or a continuous surface water

connection to traditional navigable waters. This

federal regulatory scheme is particularly important

given what is at stake: Watersheds are interstate in

nature, and water flows from upstream states to

downstream states. Coordination by a federal agency

is essential to avoid the externalities and inequities

that would otherwise inevitably result.

I.

Petitioners’ narrow construction of

WOTUS would leave substantial waters

unregulated, to disastrous effect.

The narrow interpretation of WOTUS advanced by

Petitioners would leave waters that have no

continuous surface water connection to permanent

waters, as well as waters that are not navigable in

5

fact, outside federal regulation. Because these waters

are important for protection of drinking water quality,

flood prevention, and sensible community planning,

the impact would be severe.

Waters now covered by the Act but excluded

under Petitioners’ reading include headwaters and

intermittent and ephemeral streams, as well as many

wetlands—all of which perform vital functions but

may not flow year-round, may lack a continuous

surface connection to permanent waters, or may not

be navigable in fact. Headwaters are the source of

nearly 60% of the total annual flow to Northeastern

streams and rivers. EPA, EPA/600/R-14/475F,

Connectivity of Streams & Wetlands to Downstream

Waters, at ES-8 (2015), https://bit.ly/3GKYbRp (2015

EPA Report). Requiring a continuous surface water

connection would exclude at least 60% of the stream

length in the United States. See, e.g., Supreme Court

Decisions on Water Resources: Hearing Before the

Subcomm. on Fisheries, Wildlife, and Water, 109th

Cong. (2006) (statement of Chuck Clayton, Immediate

Past President, The Izaak Walton League of America).

It would also exclude 51% (if not more) of the Nation’s

wetlands. See, e.g., EPA FOIA Response at 5 (Sept. 5,

2017), https://bit.ly/3tC9Z34; see also Miranda Green,

Internal EPA document contradicts agency over

existence of water rule data, HILL (Dec. 11, 2018),

https://bit.ly/3xpxMVf. Requiring that waters be

navigable in fact would exclude even more.

6

In some regions, these requirements would

exclude the vast majority of waters: 80-90% of streams

in the West flow only seasonally or after a hard rain,

Robert R.M. Verchick, Toward Normative Rules for

Agency Interpretation: Defining Jurisdiction Under

the Clean Water Act, 55 ALA. L. REV. 845, 875 (2004),

and 88% of the wetlands in a major region of the

Upper Midwest are geographically isolated. T.E.

Dahl, Status and Trends of Wetlands in the

Conterminous United States 1997-2009, U.S. FISH &

WILDLIFE SERV., at 20 (2014), https://bit.ly/3aqDdLB.

The 2020 Navigable Waters Protection Rule (NWPR),

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

the Rapanos plurality’s test and was thus broader

than Petitioners’ proposed interpretation, but New

Mexico estimates nearly 90% of its water resources

were unprotected under the NWPR.3 See Comment

Letter on “Waters of the United States,” ASS’N OF STATE

WETLAND MANAGERS, at 8 (Oct. 4, 2021),

https://bit.ly/3xssdp0 (Comment Letter). Effective

regulation of critical waters in the Western United

States would thus be particularly undermined by

Petitioners’ interpretation of WOTUS.

Drinking Water Quality. Waters that would be

excluded by Petitioners’ reading are extremely

3 The NWPR was subsequently vacated in Pascua Yaqui Tribe v.

EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021), and the EPA is not

presently applying it, Current Implementation of Waters of the

United States, EPA, https://bit.ly/3NSvy7e.

7

important to drinking water quality. More than 58%

of headwater streams essential to public drinking

water systems that use surface water would lose vital

protection if a continuous surface water connection

were required; that would affect the quality of

drinking water consumed by more than 117 million

Americans. See Geographic Information Systems

Analysis of the Surface Drinking Water Provided by

Intermittent, Ephemeral, and Headwater Streams in

the U.S., EPA, at 1 (2009), https://bit.ly/3HsqtAO.

For example, one of the Act’s important

protections for drinking water is the National

Pollutant Discharge Elimination System (NPDES).

The NPDES program authorizes the EPA and

delegated states to issue permits for discharges of

harmful pollutants and to impose conditions on these

permits. 33 U.S.C. § 1342. Under Petitioners’ reading,

NPDES permits would be required only for discharges

to navigable-in-fact waters, which would significantly

compromise the Act’s goals “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). According to the

EPA, a reading of WOTUS that excludes headwaters

and other intermittent or ephemeral streams would

leave more than 40% of the wastewater discharges

with NPDES permits newly unregulated. Letter from

Assistant Administrator Benjamin H. Grumbles,

reprinted in Amicus Br. of Ass’n of State Wetland

Managers et al., Rapanos, 2006 WL 139206, at *3a

(Jan. 13, 2006). All of the conditions on these permits,

8

which reduce the hazards to human health from

discharges, would likewise be erased, allowing

pollutants to flow much more freely into the

watershed. These waters would also lose protection

from filling or burial. See 33 U.S.C. § 1344.

Loss of protection for headwaters and wetlands is

especially significant because they serve as filters. See

W.H. Lowe & G. E. Likens, Moving Headwater

Streams to the Head of the Class, 55 BIOSCIENCE 196,

196 (2005); 2015 EPA Report at ES-3. These waters

collect pollutants and thus reduce the amount of

nutrient and pollutant runoff downstream. John A.

Morrice et al., Alluvial characteristics groundwatersurface water exchange and hydrological retention in

headwater streams, 11 HYDROLOGICAL PROCESSES 253

(1998); Ken J. Hall & Bruce C. Anderson, The toxicity

and chemical composition of urban stormwater runoff,

15 CAN. J. CIV. ENG’G 98 (1988). Headwaters and

wetlands are more efficient at pollutant removal than

other waters thanks to the slow, sometimes

infrequent, rate at which water moves through them.

J.L. Meyer & J.B. Wallace, Lost linkages in lotic

ecology: rediscovering small streams, ECOLOGY:

ACHIEVEMENT AND CHALLENGE 310 (M.C. Press et al.,

eds. 2001). Thus, it is particularly important to keep

these waters within the Act’s jurisdiction.

Protecting water at its source (i.e., in headwaters

and wetlands) is one of the most efficient methods of

ensuring clean drinking water. See, e.g., Cathy Kellon,

9

Communicating Source Water Protection Efforts in

Consumer Confidence Reports, AM. WATER WORKS

ASS’N, at 20 (2018), https://bit.ly/3MLKVNW.

“Congress recognized” in the Act that “it is essential

that discharge of pollutants be controlled at the

source.” United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 133 (1985) (quoting S. REP. NO.

92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3668,

3742). Wetland and water resource managers must

target their efforts at source waters because it is less

costly and more effective to prevent a loss in water

quality than to treat contaminated water later on. Id.

Treatment is not effective for all toxic chemicals,

metals, and pesticides, and treatment plants cannot

immediately respond to emergent contaminants. See

id. at 6; National Primary Drinking Water

Regulations: Long Term 2 Enhanced Surface Water

Treatment Rule, 68 Fed. Reg. 47,640, 47,646 (Aug. 11,

2003); VLADIMIR NOVOTNY, WATER QUALITY (2d ed.

2002); GUNTHER F. CRAUN ET AL., MICROBIAL

PATHOGENS AND DISINFECTION BY-PRODUCTS IN

DRINKING WATER (2001). Without a coordinated

federal-state partnership regulating discharges into

waters with downstream effects, preventative

drinking water quality measures become exceedingly

difficult to implement because, as explained below,

infra Section II, states cannot control discharges

occurring in other states. States that draw their

drinking water from interstate waters will face the

risk of significantly increased back-end treatment

costs if their neighboring states do not impose

10

meaningful controls, as well as uncertainty about

whether their treatment systems will be able to

effectively remediate polluted waters.

Flooding. Flood prevention efforts would also

be compromised if WOTUS were read as Petitioners

propose. Floodplain managers depend upon federal

protection of waters such as wetlands, headwaters,

and other streams that may have a subsurface

hydrological connection to the floodplain but may not

be navigable or may lack a continuous surface water

connection. See 2015 EPA Report at 2-44. Wetlands,

for example, are crucial for reducing the effects of

flood hazards—especially intense storms, winter

snowpacks, and droughts—because they moderate the

baseflow of waters that pose flood threats and control

the transport of sediment downstream. Nonpoint

source impacts on primary headwater streams, OHIO

ENVTL.

PROT.

AGENCY,

at

1

(2015),

https://bit.ly/3akrL4b (Ohio EPA 2015). By storing

and controlling the release of water, wetlands reduce

the low-flow and high-flow extremes that cause both

floods and droughts. See 2015 EPA Report at ES-9.

Wetlands also slow the erosion of river, lake,

and channel banks by acting as natural sponges for

overflow events. See Charles A. Taylor & Hannah

Druckenmiller, Wetlands, Flooding, and the Clean

Water Act, 112 AM. ECON. REV. 1334, 1337, 1352

(2022); 2015 EPA Report at B-52, B-55. The berms and

other barriers that often separate wetlands from

11

traditional navigable waters are crucial in slowing

water rates and, therefore, limiting flood losses. 2015

EPA Report at B-29, B-52, B-55. The Corps already

spends more than $900 million annually on

maintenance dredging of navigable waters to prevent

floods. Corps, Pub. L. 116-20 Damage Repair Estimate

(Sept. 25, 2019), https://bit.ly/3PWooAM. Without

federal regulation, destruction and pollution of vital

wetlands would greatly increase the costs of dredging.

See Ohio EPA 2015, at 1.

Measured conservatively, the flood losses

caused by development of wetlands are far greater

than the expense of the federal permitting process.

See Taylor & Druckenmiller at 1336. The average

hectare (roughly 2.5 football fields) of wetlands lost

between 2001 and 2016 cost society $1,840 annually

in National Flood Insurance Program (NFIP) claims

alone. In developed areas, that amount rose to more

than $8,000. Id. at 1334. These expenses cannot be

controlled by regulating only navigable-in-fact waters

and wetlands with a continuous surface water

connection to them. The most valuable wetlands for

flood reduction are located 500 to 750 meters from the

stream or river they drain into ($21,178 per hectare

nationwide and $63,276 per hectare in developed

areas). Id. at 1352.4 Their separation from

These estimates are notably conservative because they only

account for claims submitted to NFIP. Many people fail to file

flood claims or are ineligible to file, and this study estimates only

4

12

permanently flowing waters is precisely what makes

these wetlands so important: They are less likely to be

fully saturated and thus more likely to have capacity

to absorb overflows from flowing waters before they

reach developments. Id. In total, wetland losses

between 2001 and 2016 cost taxpayers more than

$600 million each year in NFIP claims alone. Id. at

1356. Excluding crucial flood barriers from the Act

and allowing the loss of wetlands to accelerate would

impose far steeper costs.

Development and planning. Clean water is critical

to development. To ensure a new community can

thrive for decades (and longer), developers and

architects rely on community planners, who assess

water supply, water quality, and flood and

stormwater management. Cynthia Bowen, What is

Planning?,

AM.

PLANNING

ASS’N,

https://bit.ly/3Q1pqeL; Water and Planning, AM.

PLANNING ASS’N, https://bit.ly/3xaXOLU. Among

other tasks, these planners ensure a sustainable

water supply and account for water treatment costs

and flood risks. Brian Campbell et al., APA Policy

Guide on Water, AM. PLANNING ASS’N (July 15, 2016),

https://bit.ly/3N8ltmN.

Successful plans assume that wetlands, streams,

ponds, and other natural waters—many of which lack

the flood-related costs of destroying wetlands and headwaters—

not the costs to water quality.

13

a continuous surface water connection to traditional

navigable waters—will store and reuse stormwater

and runoff. Id. Excluding these waters from federal

regulation would substantially increase the risk of

their destruction or contamination because discharges

of pollutants into water supplies would surely be more

common. In existing communities, planners would

struggle to identify new sources of water to ensure a

sufficient, reliable, and safe water supply in the

future. More generally, increased concern about the

long-term health of water sources would impede

analysis of water supply and demand, inject

uncertainty, and thereby hamper future development.

See 2015 EPA Report at ES-5; Lowe & Likens at 196

(upstream discharges into headwaters wetlands, and

intermittent and ephemeral streams contaminate the

downstream watershed). Absent confidence that

source waters will remain healthy, developers may

choose not to shoulder the risk of potential future

costs, such as water cleanup, sediment removal,

artificial wetland creation, and water treatment

facilities. See TOM DANIELS & KATHERINE DANIELS,

THE ENVIRONMENTAL PLANNING HANDBOOK FOR

SUSTAINABLE COMMUNITIES AND REGIONS 229 (2003).

II.

The externalities associated with water

pollution and regulation require a

collaborative federal-state solution.

Because watersheds often span multiple states,

one state’s polluting activities and regulations affect

14

other states. See S. REP NO. 92-414 (1971), reprinted

in 1972 U.S.C.C.A.N. 3668, 3672 (greater federal role

required because isolated state enforcement harms

interstate water quality); A Compilation of Cost Data

Associated with the Impacts and Control of Nutrient

Pollution,

EPA,

at

ES-1

(2015),

https://bit.ly/3m9NDCb

(compiling

data

on

externalities) (EPA Cost Data). For this reason,

conflicts between “a state that introduces pollutants

to a waterway and a downstream state that objects”

have been a “font of controversy since the founding of

the Nation.” Arkansas v. Oklahoma, 503 U.S. 91, 98

(1992).

Petitioners’ test would shift the burden of

addressing water pollution—which comes from

sources throughout a watershed—by excluding from

federal regulation all discharges except those into

larger waterbodies. The waters with the greatest

impact on the United States’ interstate watersheds

would lose federal protection. See 2015 EPA Report at

ES-5; Lowe & Likens at 196. Effective pollutant

control, however, requires an equitable distribution of

costs among a broader group of actors, including both

upstream and downstream states.

Recognizing that the quality of water in

downstream states depends upon upstream activities,

the Act creates systems for interstate cooperation that

take account of these externalities. Under 33 U.S.C.

§ 1341(a)(2), for example, the federal EPA

15

Administrator determines whether a “discharge [by a

permit applicant] may affect … the quality of the

waters of any other State.” Id. If so, he must notify the

neighboring state, which then determines whether

the discharge will violate water quality requirements.

Id. The Administrator may work with the

downstream state to develop permit conditions that

will ensure compliance with water quality

requirements. Id. Similarly, 33 U.S.C. §§ 1342(b)(3)

and (5) ensure that NPDES permits take account of

neighboring states’ concerns. The Act’s systems of

cooperation allow a neutral federal agency to prevent

upstream states from offloading pollution onto

downstream states.5 Petitioners’ interpretation of

WOTUS would eliminate this tool for addressing

interstate pollution and make it difficult for

downstream wetland and water resource managers to

maintain their states’ waters.

5 Prior to the Act, conflicts between states arising from upstream

pollution were resolved in this Court under “often vague and

indeterminate nuisance concepts and maxims of equity

jurisprudence.” City of Milwaukee v. Illinois, 451 U.S. 304, 317

(1981). The Act preempts federal common law and replaces it

with “a comprehensive regulatory program supervised by an

expert administrative agency.” Id.

16

A.

Leaving most water regulation to

states alone would create perverse

incentives.

Under the reading of WOTUS in place today, the

cost of regulation is borne by both upstream and

downstream states. Petitioners’ interpretation creates

risks of moral hazard: Heavily polluting states may

choose not to regulate because they need not bear the

costs of doing so, even while retaining the economic

benefits of their polluting activity. Downstream

states, by contrast, may be forced to bear enormous

regulatory costs, as they pay to clean up out-of-state

pollution as it flows in. See, e.g., EPA Cost Data at I-3

(downstream external costs exceed upstream

treatment cost).

Petitioners’ narrow reading would also create a

classic free-rider problem, in which some states

benefit from their neighbors’ regulations even as they

reap the economic advantages of polluting activity.

“Unlike an apple that can be bought and consumed by

one person,” all those “who live downstream from

wetlands benefit from the role wetlands play in

slowing floodwaters, whether they paid to conserve

the wetlands or not.” James Salzman, Creating

Markets for Ecosystem Services, 80 N.Y.U. L. REV. 870,

882 (2005). An upstream state that pays to clean up

its waters passes benefits to all downstream states.

Residents of those downstream states will enjoy the

clean drinking water paid for by the upstream state

17

but may choose to reduce their own costs by polluting

further downstream without regulation.

The Mississippi River Basin provides the

paradigmatic example of these problems. The Upper

Mississippi River system drains an area of 190,000

square miles in Minnesota, Wisconsin, Iowa, and

Missouri and a small portion of Indiana and South

Dakota. Only about 1,300 miles—less than 1% of the

system—are navigable. The remaining 99% comprises

the non-navigable tributaries, ditches, and noncontiguous wetlands that would be excluded by

Petitioners’ interpretation of WOTUS. See Amicus Br.

of Ass’n of State Wetland Managers et al., Rapanos,

2006 WL 139206, at *22. These waters contribute to

the flows of the navigable portions of the system and

help to control the flow of nutrients and sediment into

the navigable waters. Janet Larsen, Dead Zones

Increasing in World’s Coastal Waters, EARTH POL’Y

INST. (June 16, 2004), https://bit.ly/3xbbAiv.

Filling these waters, as would be possible without

a permit under Petitioners’ test, would exacerbate

transmission of nitrogen-rich fertilizer in storm runoff

into the mainstream Mississippi system. William J.

Mitsch, et al., Reducing Nitrogen Loading to the Gulf

of Mexico from the Mississippi River Basin, 51

BIOSCIENCE 373, 373-74 (2001). Existing wetland

losses have already substantially increased the

amount of nitrogen entering the Gulf of Mexico. Id.;

Nancy Rabalais, et al., Beyond science into policy: Gulf

18

of Mexico Hypoxia and the Mississippi River, 52

BIOSCIENCE 129, 129-30 (2002).

These excessive nitrogen levels have helped create

a “dead zone” in the Gulf, with levels of oxygen too low

to support aquatic life. This dead zone adversely

affects the environment and economy of the Gulf

Coast, including through financial losses in what was

once the most valuable fishery in the United States.

Integrated Assessment of Hypoxia in the Northern

Gulf of Mexico, NAT’L SCI. & TECH. COUNCIL, at 7

(2000), https://bit.ly/3m9i2Au; Martin D. Smith et al.,

Seafood Prices Reveal Impacts of Major Ecological

Disturbance, 114 PROC. NAT’L ACAD. SCI. 1512, 1512

(2017). But 85% of nitrogen arriving at the dead zone

originated not in coastal states but rather in the

Upper Mississippi watershed. D.A. Goolsby et al.,

Flux and Sources of Nutrients in the MississippiAtchafalaya River Basin, NAT’L OCEANIC &

ATMOSPHERIC

ADMIN.,

at

40

(1999),

https://bit.ly/3aIZwwt. Without the protections of the

Act, this problem would grow only worse because

dischargers in upstream states could freely pass

additional pollutants downstream.

B.

Under Petitioners’ reading of

WOTUS, downstream states would

suffer poorer water quality and

outsized flood risk.

Drinking water quality is best maintained by a

reading of WOTUS that facilitates federal, state, and

19

local protection of waters at their sources, such as

wetlands and headwaters. As with the Mississippi

River Basin, those source waters may lie in one state,

flow across boundaries, and be deposited in a

downstream state. Absent federal regulation, the

upstream state may have exclusive control of the

downstream state’s surface water supply. If the

upstream state chooses not to regulate, the residents

of the downstream state will bear the cost of

remediation and will likely have poorer drinking

water and higher costs. See supra Section I.

Flood prevention likewise depends upon protection

of wetlands and headwaters, which slow the

damaging flow rates of floodwaters, allowing

sediment to settle rather than travel farther

downstream. See supra Section I. Floods are generally

driven by upstream changes in water temperatures,

rainfall, and snowmelt, which culminate in the

overflow of rivers in downstream states, sometimes

many states away. See Bruno Merz et al., Causes,

Impacts and Patterns of Disastrous River Floods, 2

NATURE REVS. EARTH & ENV’T 592, 594 (2021)

(downstream floods larger than upstream causes).

Downstream states are therefore dependent on the

flood mitigation activities of upstream states. A

federal standard provides a critical tool for regulating

wetlands and headwaters by providing a minimum

level of protection across all states.

20

C.

Developers depend on the certainty

afforded by a floor of uniform

nationwide regulation.

Developers and planners require a predictable

floor of uniform nationwide regulation because

communities draw from interstate watersheds that do

not respect city and state borders. Climate Change

Policy Guide, AM. PLANNING ASS’N, at C.9.2 (2020),

https://bit.ly/3NLsDNE (Climate Change Policy

Guide); see also John R. Nolon, Flexibility in the Law:

The Re-engineering of Zoning to Prevent Fragmented

Landscapes, N.Y.L.J. 5, 7 (Feb. 18, 1998)

(jurisdictional boundaries drawn without regard to

watersheds). Regional planning coalitions are often

organized around watershed geography that crosses

state lines. Climate Change Policy Guide at G.1.5. For

example, there are 21 major hydrologic regions in the

United States, each of which contains a major

drainage basin, Hydrologic Unit Maps, U.S.

GEOLOGICAL

SURVEY,

(Feb.

9,

2022),

https://on.doi.gov/3MfnUm6, and often centers on an

interstate body of water, such as the Mississippi

River. Id. Efforts to establish and maintain a

sustainable water supply in the face of development

are organized not around state borders but rather

around these 21 hydrologic regions. Climate Change

Policy Guide at G.1.5.

Planners will not be able to readily account for

watersheds that cross jurisdictional boundaries if

21

they cannot rely on a predictable floor of federal

regulation for the waters that Petitioners would

exclude from WOTUS. A uniform baseline level of

protection for all waters makes planning far more

efficient than if the quality and availability of water

supplies depend upon the regulatory decisions of

multiple states acting without coordination. Planners

would need to evaluate each of these separate regimes

and gauge the likelihood that pollution from upstream

states would contaminate a community’s future water

supply. Providing accurate valuations of land would

become far more difficult, planning would become

more costly, and in some instances, development

would be delayed or thwarted entirely. See DANIELS &

DANIELS, supra, at 229.

III.

State, tribal, and local governments

would struggle to fill the regulatory gaps

that would be left by Petitioners’ test for

WOTUS.

States, tribes, and municipalities would strain to

fill the regulatory gap that would result if Petitioners’

restrictive reading of WOTUS were adopted.

A.

Much state and tribal regulation is

integrated with the federal scheme.

Congress intended the Act as “a partnership

between States and the Federal Government,

animated by a shared objective: ‘to restore and

maintain the chemical, physical, and biological

22

integrity of the Nation’s waters.’” Arkansas, 503 U.S.

at 101 (citing 33 U.S.C. § 1251(a)). That is how it has

worked in practice for fifty years—states have woven

their own regulatory programs into the federal

framework, and water managers and planners at the

federal, state, and tribal levels have collaborated to

ensure effective, efficient protection of waters.

The Act explicitly preserves and allocates

substantial roles in federal programs to state

governments, while providing for federal regulation of

polluting activities. Regulation is integrated, and in

most states, there is no freestanding state backstop to

protect and manage waters not covered by Petitioners’

reading of the Act’s scope. Adopting Petitioners’

interpretation would curtail state-level management

of waters removed from federal jurisdiction, as well.

One key example is the permitting and

certification authority conferred on the federal

government and the states by the Act to limit

discharged pollutants, promote wetlands’ filtration

and ecosystem services, and ensure development will

not cause flooding. To get a federal permit for any

activity that may result in any discharge of dredged

or fill material or other pollutants into WOTUS, a

property owner must first obtain a certification from

the state that the discharge will comply with effluent

limitations and clean water standards under state

and federal law. See 33 U.S.C. §§ 1341 (certification

requirement),

1342

(permits

for

pollutant

23

discharges), 1344 (permits for dredged or fill

material). When a state issues a certification, it may

impose conditions on the certified discharge, including

best management practices, inspection requirements,

or payments to support mitigation measures. See id.

§ 1341. A state may also, for example, mandate

safeguards to prevent fuel spills or limitations on the

use of heavy equipment to prevent erosion. Section

401 Certification Best Practices, ASS’N OF STATE

WETLAND

MANAGERS,

at

11

(2012),

https://bit.ly/3wZcMEu.

Narrowing the scope of WOTUS under Petitioners’

test would limit states’ ability to use this critical tool

for ensuring permits and licenses are consistent with

states’ water protection goals. Approximately 21

states rely exclusively on their federal certification

power to protect and manage their wetlands, and six

more states manage most of their waters through

their federal certification authority. Brenda Zollitsch

& Jeanne Christie, Status and Trends Report on State

Wetland Programs in the United States¸ ASS’N OF

STATE WETLAND MANAGERS, at 27 (2016),

https://bit.ly/3M7hF3S. These states have established

their own clean water standards, e.g., 5 Colo. Code

Regs. § 1002-82, but use their certification authority

under the Act to ensure consistency with those

standards. All of this would be upended if Petitioner’s

reading of WOTUS were adopted.

24

Even states that manage their aquatic resources

at the state level and have assumed federal

permitting programs would lose regulatory

capabilities. Forty-seven states have assumed

responsibility under the Act for the permitting of

pollutant discharges under the NPDES program, 33

U.S.C. § 1342(b), Idaho DEQ Becomes 47th State to

Assume NPDES Authority, ENVTL. COUNCIL OF

STATES (Aug. 27, 2021), https://bit.ly/38JtQq1, and

three states have assumed authority to permit

discharges of dredged or fill material, 33 U.S.C.

§ 1344(g); EPA Announces Historic Approval of

Florida’s Request to Administer the Clean Water Act

Section 404 Program, EPA (Dec. 17, 2020),

https://bit.ly/3NSkY00. Contrary to the West Virginia

amicus brief’s claim (at 9) that narrowing WOTUS is

necessary for local water management, state

assumption of responsibility promotes local responses

to “local concerns, community needs, and

environmental conditions.” Brian R. Levey, When

States Assume: Fulfilling Congress’s Objectives Under

the Clean Water Act’s Wetlands Program, 35 NAT.

RESOURCES & ENV’T 9 (2020). When states assume

responsibility for permitting under the NPDES or

Section 404 program, they may regulate discharges of

pollutants to WOTUS. Under Petitioners’ narrow

reading of WOTUS, the scope of state permitting

authority would be greatly reduced, and the states

would presumably need to expand state-level water

quality programs to compensate for the rollback of the

federal program.

25

B.

Petitioners’ interpretation of

WOTUS would result in

inefficiencies and impose heavy

costs on the states.

Not only would Petitioners’ interpretation of

WOTUS unwind much state regulation, but states

would also find it challenging and costly to craft new

protections to fill the regulatory gap. Comment Letter

at 5. The Clean Water Act requires states to develop

water quality standards for WOTUS, and narrowing

WOTUS would leave many of those standards without

effect under the Act. See 33 U.S.C. § 1313. States that

rely on their power conferred by the Act to certify, id.

§ 1341, or grant permits, id. §§ 1342(b), 1344(g),

would have to devise new regulations. Those states,

along with states that already have freestanding

state-level programs, would also face additional

complexities and costs in implementing Petitioners’

proposed test for WOTUS.

Contrary to Petitioners’ claims (at 46-48), their

proposed standard—particularly the requirement of a

“continuous surface water connection” to navigable

waters—would sow much confusion because it would

necessitate regular assessment of whether there is

such a connection. Water levels frequently change and

can be affected by water withdrawals, such as for

irrigation or drinking water. For many wetlands, field

staff may be able to determine only seasonally where

the water ends and the wetland begins. Heavy rainfall

26

may cause a berm to be breached, while unusually dry

summer days may cause waters to recede below a

normally subsurface barrier. As climate change

accelerates, and droughts and floods become more

common, it will be more difficult to determine the

surface-level continuity of some waters. See Hossein

Tabari, Climate change impact on flood and extreme

precipitation increases with water availability, 10 SCI.

REP. 13,768 (2020).

It would be time consuming and costly for states to

develop substitutes for the federal permitting

program. States would have to respond to a deluge of

permit applications that otherwise would have been

handled in the Corps’ Section 404 nationwide

permitting process.6 The strain on state resources

would be exacerbated by a likely loss of federal

funding for grant programs. See, e.g., 33 U.S.C.

§ 1383(c) (listing grant programs, including for

compliance with provisions limited to WOTUS); Cong.

Research Serv., R43871, Funding for EPA Water

Infrastructure (2019).

6 For example, following the implementation of the NWPR, which

largely adopted the Rapanos plurality’s restrictive test, some

permit applicants in Washington State asked that the wetlands

and other waters affected by their projects be considered

WOTUS—despite the term’s narrower scope under the NWPR—

so they could access the more efficient nationwide permit process

rather than Washington’s individual permit program. Comment

Letter at 8.

27

C.

Petitioners’ interpretation of

WOTUS would require individual

states to assume new roles in

responding to interstate disasters.

States would also likely be left to respond to

disasters that now are largely the province of the

federal government. For example, the Act provides the

federal government with significant responsibility for

prevention and clean-up of oil spills that occur on or

in WOTUS. 33 U.S.C. § 1321. Few states have the

resources and administrative capacity for those tasks,

and none has interstate jurisdiction. If WOTUS is

narrowed, however, the federal government will lose

significant powers to prevent or remediate oil spills at

their source.7

For example, in 2010, an oil pipeline burst and

spilled over 1,000,000 gallons of heavy crude oil into

Michigan’s Talmadge Creek wetlands, which lack a

surface water connection to the Kalamazoo River and

are separated from it by several miles. The EPA

responded with a multi-year effort to contain and

clean up the oil, spending over $1 billion. Had these

wetlands been excluded from WOTUS, the federal

7 This consequence could well extend beyond the CWA. At least

one circuit has interpreted the scope of “navigable waters” under

the Oil Pollution Act (OPA) to be coextensive with WOTUS under

the CWA. Thus, Petitioners’ interpretation could erode

protections under the OPA, as well. See In re Needham, 354 F.3d

340, 344 (5th Cir. 2003).

28

government would not have been able to respond with

the Act’s tools at the site of the spill. Instead, its

efforts could begin only miles away, once the spill had

spread to cover 35 miles of the Kalamazoo River. See

Enbridge 2010 Kalamazoo River Oil Spill – Natural

Resource Damage Assessment and Restoration, U.S.

FISH & WILDLIFE SERV., https://bit.ly/3NmjEmj.

Petitioners’ position would exclude from the Act’s

scope a wide range of waters with multistate

implications that cannot be handled by state, tribal,

or local governments alone. That position is

inconsistent with the objective of the Act to provide a

federal solution to the nationwide challenge of water

pollution. See 33 U.S.C. §§ 1251(a), (d).

***

29

CONCLUSION

For the foregoing reasons, the Court should affirm

the judgment below.

Dated: New York, NY

June 17, 2022

Respectfully submitted,

CAITLIN J. HALLIGAN

Counsel of Record

MAX H. SIEGEL

SELENDY GAY ELSBERG PLLC

1290 Avenue of the Americas

New York, New York 10104

(212) 390-9000

challigan@selendygay.com

Attorneys for Amici Curiae

30