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

No. 21-454

IN THE

Supreme Court of the United States

MICHAEL SACKETT & CHANTELL SACKETT,

Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF ENVIRONMENTAL AND COMMUNITY

ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Catherine M. Rahm

Ian Fein

NATURAL RESOURCES

DEFENSE COUNCIL

40 W. 20th Street

New York, NY 10011

Counsel for Natural

Resources Defense

Council

Nicholas S. Torrey

Counsel of Record

SOUTHERN ENVIRONMENTAL

LAW CENTER

601 West Rosemary Street,

Suite 220

Chapel Hill, NC 27516

(919) 967-1450

ntorrey@selcnc.org

Counsel for Environmental

and Community Organizations

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

SUMMARY OF ARGUMENT ................................ 1

ARGUMENT ............................................................... 2

I. The Clean Water Act Protects the

Chemical, Physical, and Biological

Integrity of the Nation’s Waters .......................2

A. Text

and

Structure

Confirm

Congress’s Water-Quality Objective ...........2

B. The Act Comprehensively Protects

Water Quality by Expanding Earlier

Navigation- and State-Based Efforts ..........6

C. The Court’s Decisions Recognize the

Act’s Broad Jurisdiction and WaterQuality Objective .........................................8

II. Petitioners’ Test Undermines the

Integrity of Our Nation’s Waters and

Contravenes the Act’s Water-Quality

Objective ..........................................................11

A. The Act Does Not Require a

Continuous Surface Connection or

“Relatively Permanent” Flow ....................11

B. The Clean Water Act Applies to More

Than Traditional Navigable Waters .........21

C. Regulating Discharges “Indirectly”

Does Not Close the Loopholes Opened

by Petitioners’ Approach ...........................26

ii

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

APPENDIX – LIST OF AMICI CURIAE .................. 1a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) ......................................... 3

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981) ................................... 7, 9, 23

Cnty. of Maui v. Hawai‘i Wildlife Fund,

140 S. Ct. 1462 (2020) ............................... passim

EPA v. California ex rel. State Water Res.

Control Bd., 426 U.S. 200 (1976) ........................ 6

Illinois v. Milwaukee,

406 U.S. 91 (1972) ............................................... 9

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ............................... 7, 8, 9, 23

Mingo Logan Coal Co. v. EPA,

70 F. Supp. 3d 151 (D.D.C. 2014) ..................... 29

Mingo Logan Coal Co. v. EPA,

829 F.3d 710 (D.C. Cir. 2016) ............................. 5

Nat. Res. Def. Council, Inc. v. Callaway,

392 F. Supp. 685 (D.D.C. 1975) ........................ 24

Oklahoma ex rel. Phillips v. Guy F. Atkinson

Co., 313 U.S. 508 (1941) .............................. 24, 27

PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t

of Ecology, 511 U.S. 700 (1994) ........................... 8

iv

Rapanos v. United States,

547 U.S. 715 (2016) ................................... passim

S.C. Coastal Conservation League v.

Wheeler,

No. 2:20-cv-01687-DCN (D.S.C. July 10,

2020)................................................................... 16

Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers,

531 U.S. 159 (2001) ........................... 9, 10, 14, 15

United States v. Ashland Oil & Transp. Co.,

504 F.2d 1317 (6th Cir. 1974) ........................... 24

United States v. California,

436 U.S. 32 (1978) ............................................. 13

United States v. Deaton,

332 F.3d 698 (4th Cir. 2003) ............................. 24

United States v. Holland,

373 F. Supp. 665 (M.D. Fla. 1974) .................... 24

United States v. Rio Grande Dam &

Irrigation Co.,

174 U.S. 690 (1899) ........................................... 24

United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121 (1985) ........................... passim

Statutes

Clean Water Act

33 U.S.C. § 1251(a) ......................................... passim

33 U.S.C. § 1251(a)(1)–(2)......................................... 3

v

33 U.S.C. § 1251(a)(3)-(7) ......................................... 3

33 U.S.C. § 1251(b) ............................................... 3, 8

33 U.S.C. § 1251(c) .................................................... 3

33 U.S.C. § 1251(f) .................................................... 3

33 U.S.C. § 1251(g) ................................................... 3

33 U.S.C. § 1270(g)(2) ............................................. 12

33 U.S.C. § 1311(b) ................................................... 4

33 U.S.C. § 1341(a)(2) ............................................... 5

33 U.S.C. § 1342(a)(1) ............................................... 4

33 U.S.C. § 1342(b) ................................................... 8

33 U.S.C. § 1343(c)(1) ............................................... 5

33 U.S.C. § 1344(b) ................................................... 4

33 U.S.C. § 1344(c) .............................................. 5, 29

33 U.S.C. § 1344(e) ................................................. 25

33 U.S.C. § 1344(f) .................................................. 25

33 U.S.C. § 1344(g) ................................................... 8

33 U.S.C. § 1344(g)(1) ........................... 12, 13, 17, 22

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

33 U.S.C. § 1362(14) ............................................... 20

33 U.S.C. § 1370(1) ................................................... 8

vi

33 U.S.C. § 1377(e) ................................................... 5

33 U.S.C. § 2317...................................................... 13

33 U.S.C. § 2336(b)(2) ............................................. 13

33 U.S.C. § 2802(5) ................................................. 13

Clean Water Act of 1977, Pub. L. No. 95-217,

91 Stat. 1566 (1977) .................................... 13, 25

Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500,

86 Stat. 816 (1972) .............................................. 3

Federal Water Pollution Control Act of 1948,

Pub. L. No. 80-845, 62 Stat. 1155 (1948) ............ 6

Water Resources Development Act of 1990,

Pub. L. No. 101-640, 104 Stat. 4604

(1990) ................................................................. 13

Other Authorities

123 Cong. Rec. 26,718 (1977) ................................. 25

38 Fed. Reg. 13,528 (May 22, 1973) ....................... 24

40 Fed. Reg. 31,320 (July 25, 1975) ....................... 25

42 Fed. Reg. 37,122 (July 19, 1977) ...................... 14

76 Fed. Reg. 3126 (Jan. 19, 2011) .......................... 29

80 Fed. Reg. 37,054 (June 29, 2015) ...................... 18

86 Fed. Reg. 69,372 (Dec. 7, 2021) ......................... 15

vii

86 Fed. Reg. 69,390 (Dec. 7, 2021) ......................... 23

86 Fed. Reg. 69,409 (Dec. 7, 2021) ......................... 16

C. Rhett Jackson et al., Redefining Waters of the US:

A Case Study from the Edge of the Okefenokee

Swamp, 41 Wetlands 106 (Nov. 2021) .............. 16

EPA, The Ecological and Hydrological Significance

of Ephemeral and Intermittent Streams in the

Arid and Semi-arid American Southwest

(Nov. 2008). ........................................................ 20

EPA & Dep't of the Army, Technical Support

Document (Nov. 18, 2021). ................................ 15

H.R. Rep. No. 92-911 (1972) ........................... 7, 8, 22

H.R. Rep. No. 95-830 (1977) ................................... 25

S. Rep. No. 92-414 (1971) ............................. 7, 23, 24

S. Rep. No. 92-1236 (1972) ................................. 8, 22

U.S. Congress, Office of Technology

Assessment, Wetlands: Their Use and

Regulation, OTA-O-206 (1984) ......................... 28

U.S.G.S., Manual of Hydrology: General Introduction and Hydrologic Definitions (1960) ............ 19

Webster’s New Int’l Dictionary

(2d ed. 1954) ...................................................... 18

viii

W.E. Frayer et al., U.S. Fish & Wildlife

Service, National Wetlands Inventory,

“Status and Trends of Wetlands and

Deepwater Habitats in the Conterminous

United States, 1950s to 1970s” (1983) ................ 7

1

INTEREST OF AMICI CURIAE1

Amici curiae are 114 environmental and community non-profit organizations (listed in the Appendix to

this brief) that rely on the Clean Water Act and its

comprehensive water-quality protections to help protect public health and the environment. Amici have

an interest in ensuring that the Act is interpreted consistently with Congress’s stated objective to “restore

and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Congress enacted the Clean Water Act with a single stated objective: to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” This objective can only be achieved if

the Act protects both navigable waters and the interconnected wetlands and tributaries that significantly

affect them.

The Act’s text, structure, and history—and this

Court’s decisions, spanning decades—confirm that

Congress enacted a comprehensive water-quality statute to do just that. With the Act’s programs, Congress

protected downstream traditional navigable waters by

regulating activities not only in those waters, but also

in upstream wetlands and tributaries that significantly affect their integrity. The Act’s application to

all “waters of the United States” has been

1 The parties have consented to the filing of this brief.

No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici or their counsel made a monetary contribution to its preparation or submission.

2

implemented consistent with this understanding—

and with great success for our nation’s water quality—

for virtually all of its 50-year history.

Petitioners now put forward a “two-step” test for

determining the Act’s scope that is, more accurately, a

giant leap backward. Their proposed reading would

protect only waters deemed navigable and wetlands

that physically abut them, “but no more.” This reading

ignores that the Act repeatedly recognizes wetlands

themselves as “waters.” And it would allow the destruction of every non-abutting wetland and non-navigable tributary of a traditional navigable water, with

obvious and significant negative impacts on the downstream water’s chemical, physical, and biological integrity. That is not the comprehensive water-quality

statute Congress enacted. The Court must reject this

backward interpretation of the Clean Water Act,

which would greatly undermine Congress’s clearly

stated objective.

ARGUMENT

I.

The Clean Water Act Protects the Chemical,

Physical, and Biological Integrity of the

Nation’s Waters

The text, structure, and history of the Clean Water

Act—as well as this Court’s decisions—all confirm that

Congress enacted a comprehensive statute with the

single objective of protecting water quality. That objective requires protections for wetlands and tributaries that significantly affect the chemical, physical, or

biological integrity of traditional navigable waters.

A. Text and Structure Confirm Congress’s

Water-Quality Objective

Congress enacted the Clean Water Act to achieve

a single objective—to ensure the integrity of our

3

nation’s water quality. The text of the Act makes this

clear, specifying that “[t]he objective of this Act is to

restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Federal Water Pollution Control Act Amendments of 1972, Pub. L.

No. 92-500, § 101(a), 86 Stat. 816, 816 (1972) (codified

at 33 U.S.C. § 1251(a)) (emphasis added). The Act

then identifies two “goals” to achieve the objective,

both of which also focus on water quality and aquatic

ecosystems: first, eliminating “the discharge of pollutants into the navigable waters”; and second, achieving “water quality which 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 Act’s text thus confirms Congress’s statutory objective of ensuring water quality.

Petitioners insist that “[a]ll questions of statutory

interpretation begin with the text,” Pet’rs’ Br. 25, but

they nowhere acknowledge the statutory text that

specifies the Act’s water-quality objective. Instead,

Petitioners repeat the plurality opinion’s suggestion

from Rapanos v. United States that “clean water is not

the only purpose of the statute.” 547 U.S. 715, 755–56

(2006); Pet’rs’ Br. 46. This suggestion conflates one of

several “polic[ies]” identified by Congress, see 33

U.S.C. § 1251(a)(3)–(7), (b), (c), (f), (g); see also infra p.

8 (discussing 33 U.S.C. § 1251(b)), with the sole specified “objective” that Congress enacted the statute to

“achieve,” 33 U.S.C. § 1251(a). Because the Clean Water Act’s text distinguishes between the Act’s single

water-quality objective, on the one hand, and various

policies, on the other, it must be presumed that Congress acted “intentionally and purposefully” in selecting the disparate language. Azar v. Allina Health

Servs., 139 S. Ct. 1804, 1813 (2019) (quotation omitted).

4

Recognizing water quality as the Act’s single objective thus does not “substitut[e] the purpose of the

statute for its text,” as the Rapanos plurality suggested, 547 U.S. at 755, but rather respects the text

that Congress enacted. Indeed, as this Court correctly

(and more recently) explained, “Congress’ purpose as

reflected in the language of the Clean Water Act is to

‘restore and maintain the . . . integrity of the Nation’s

waters.’” Cnty. of Maui v. Hawai‘i Wildlife Fund, 140

S. Ct. 1462, 1468 (2020) (emphasis added) (quoting

§ 101(a), 86 Stat. at 816).

Other text in the Clean Water Act, as well as its

structure, confirm this broad water-quality objective

and show how the statute achieves it: the Act regulates

the upstream discharge of pollution and fill materials

that affect downstream water quality. The Act does

this by, among other things, including as “waters of

the United States” upstream waters that significantly

affect downstream traditional navigable waters.

The Section 402 national pollutant discharge elimination system program, for example, applies pollution

limits, which “carry out the objective of this chapter,”

33 U.S.C. § 1311(b), to every discrete source of pollution. Id. § 1342(a)(1). This approach relies on broad,

comprehensive jurisdiction to regulate such sources at

the point they discharge pollutants, rather than waiting for the cumulative effects of pollution that washes

downstream to major rivers or lakes.

The Section 404 program, governing the discharge

of dredged or fill material, also furthers Congress’s water-quality objective and reinforces that Congress regulated at the point of pollution. Section 404(b) directs

the agencies to develop permitting guidelines, 33

U.S.C. § 1344(b), based on cross-referenced criteria

from Section 403(c), including effects on “human

health or welfare,” “marine life,” and “esthetic,

5

recreation, and economic values,” id. § 1343(c)(1). Section 404(c) then authorizes EPA to prohibit such discharges where they will have “unacceptable adverse

effect[s] on municipal water supplies, shellfish beds

and fishery areas (including spawning and breeding

areas), wildlife, or recreational areas.” Id. § 1344(c).

The reference to “effect[s]” on “municipal water supplies” and other areas highlights that Congress intended EPA to regulate the upstream discharge of fill

material that affects downstream water quality. See

Mingo Logan Coal Co. v. EPA, 829 F.3d 710, 724 (D.C.

Cir. 2016) (“[S]ection 404(c) allows the EPA to consider

the effects of spoil disposal downstream from the fill

itself and downstream water quality may enter the

equation.”).

The Section 401 water-quality certification program likewise demonstrates that Congress intended to

prevent downstream water-quality impacts, including

in downstream states. It provides for notice, hearings,

and additional permit conditions if a discharge “may

affect . . . the quality of the waters of any other State.”

33 U.S.C. § 1341(a)(2). The same is true for any downstream tribe treated as a state. Id. § 1377(e).

The Clean Water Act’s terms—including the

meaning of “waters of the United States,” 33 U.S.C.

§ 1362(7)—must be interpreted in a way that is consistent with “major congressional objectives, as revealed by the statute’s language, structure, and purposes,” Maui, 140 S. Ct. at 1477. Here, the Act’s language, structure, and purpose confirm that the Act

protects the water quality of traditional navigable waters by also protecting, as “waters of the United

States,” those interconnected waters that significantly

affect them. If those interconnected waters were omitted from the Act’s reach, the Act’s stated objective

would be undermined by allowing upstream fill and

6

pollution that would significantly degrade downstream water quality. See infra Part II.C. The Court

therefore must reject any interpretation of “waters of

the United States” that allows upstream discharges to

degrade the chemical, physical, or biological integrity

of the nation’s waters. See Maui, 140 S. Ct. at 1473

(rejecting interpretation that would create regulatory

loopholes) (citing EPA v. California ex rel. State Water

Res. Control Bd., 426 U.S. 200, 202–04 (1976) (basic

purpose of Clean Water Act is to regulate pollution at

its source)).

B. The Act Comprehensively Protects Water

Quality by Expanding Earlier

Navigation- and State-Based Efforts

The statutory history further confirms that the

Clean Water Act protects not only the traditional navigable waters encompassed by earlier, less comprehensive statutes, but also those waters that significantly

affect the chemical, physical, or biological integrity of

traditional navigable waters.

Prior to 1972, Congress largely left water pollution

control to the states. The Federal Water Pollution

Control Act of 1948, Pub. L. No. 80-845, 62 Stat. 1155,

was limited to providing technical assistance to states,

partial financing of municipal sewage treatment

works, and authority to bring public nuisance lawsuits

to abate interstate water pollution when all other

means failed. States were left to establish and enforce

treatment requirements for pollution sources. In

1965, Congress tried another unsuccessful approach,

directing states to develop ambient water-quality

standards specifying the acceptable levels of pollution

in a state’s interstate navigable waters. California,

426 U.S. at 202. That system proved unworkable because it “focused on the tolerable effects rather than

the preventable causes of water pollution.” Id.

7

These federal programs’ jurisdiction over waterways was severely limited, and the result was widespread deterioration of the nation’s waters. From the

1950s to the 1970s, for example, the United States lost

an average of over 450,000 acres of wetlands every

year. W.E. Frayer et al., U.S. Fish & Wildlife Service,

National Wetlands Inventory, “Status and Trends of

Wetlands and Deepwater Habitats in the Conterminous United States, 1950s to 1970s” (1983), available

at https://tinyurl.com/44w6svw7 (documenting 20year net loss of over 9 million acres of wetlands).

By the 1970s, Congress recognized that the nation’s waters “[we]re in serious trouble.” H.R. Rep. No.

92-911, at 66 (1972). Congress deemed its prior approaches, whose limited navigation-based federal jurisdiction had left most water protection to the states,

to be “inadequate in every vital aspect.” City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 310

(1981) (quoting S. Rep. No. 92-414, at 7 (1971)). Congress responded by enacting a “‘total restructuring’

and ‘complete rewriting’ of the existing water pollution

legislation” in the Clean Water Act of 1972. Id. at 317.

The Clean Water Act’s history makes clear that

Congress intended it to be a “comprehensive” statute

that established an “all-encompassing program of water pollution regulation.” Milwaukee, 451 U.S. at 317–

19. Among other things, the Act expanded the reach

of prior navigation-based statutes to encompass “virtually all bodies of water.” Int’l Paper Co. v. Ouellette,

479 U.S. 481, 492 (1987). Congress “chose to define

the waters covered by the Act broadly,” United States

v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133

(1985); 33 U.S.C. § 1362(7), and specified that the Act’s

objective was to protect the “chemical, physical, and

biological integrity” of the nation’s waters, 33 U.S.C.

§ 1251(a). Lawmakers repeatedly reiterated that they

8

intended the Act’s scope to be “given the broadest possible constitutional interpretation.” H.R. Rep. No. 92911, at 131 (1972); accord S. Rep. No. 92-1236, at 3822

(1972) (Conf. Rep.).

Relatedly, the Clean Water Act’s history (and text)

reveals that Congress rejected the state-based approach to protecting water quality that had already

failed. Instead, Congress structured the Act around a

cooperative federalism system that established a “regulatory ‘partnership’ between the Federal Government

and the source State.” Ouellette, 479 U.S. at 490. This

system allows states to implement the Act’s programs,

see 33 U.S.C. §§ 1342(b), 1344(g); see also id. § 1251(b)

(referencing permitting programs under sections 402

and 404), and to set more protective standards for jurisdictional waters within their borders, see id.

§ 1370(1). But the Act does not give states discretion

to fall below the federal floor: Congress recognized

states’ responsibility to “prevent, reduce, and eliminate

[water] pollution,” id. § 1251(b) (emphasis added), not

to allow such pollution where a state so chooses. Congress’s stated policy of preserving the states’ role in

pollution control thus neither undermines the Act’s

specified water-quality objective, see supra Part I.A,

nor limits the Act’s comprehensive jurisdiction.

C. The Court’s Decisions Recognize the

Act’s Broad Jurisdiction and WaterQuality Objective

This Court’s decisions, spanning decades, have

recognized the Clean Water Act’s comprehensive protections for our nation’s water quality. E.g., PUD No.

1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S.

700, 700 (1994) (describing Act as a “comprehensive

water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of

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

9

The Court first addressed the Act’s scope in relation to common law nuisance claims. Prior to the Act’s

passage, the Court had recognized federal common law

claims for interstate water pollution. See Illinois v.

Milwaukee, 406 U.S. 91, 107 (1972). After the Act became law, however, the Court held that Congress had

displaced such claims by establishing a “comprehensive regulatory program” for water pollution control.

Milwaukee, 451 U.S. at 317. The Court subsequently

held that the Act also preempted claims under the

common law of downstream states. Ouellette, 479 U.S.

at 491–92. The Act’s broad coverage and “pervasive

regulation,” which “applies to all point sources and virtually all bodies of water,” was “sufficiently comprehensive” to infer that “Congress left no room for supplementary state regulation.” Id. (citation and internal quotations omitted).

The Court has never curtailed the Clean Water

Act’s protection of waters that significantly affect

downstream water quality. In Riverside Bayview, the

Court upheld the Act’s application to wetlands based

on the Army Corps’ “ecological judgment” that such

wetlands have “significant effects on water quality and

the aquatic ecosystem”—for example, where they “filter and purify water draining into adjacent bodies of

water” or “slow the flow of surface runoff into lakes,

rivers, and streams and thus prevent flooding and erosion.” 474 U.S. at 134–35, 135 n.9.

The Court’s decision in Solid Waste Agency of

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

(SWANCC), 531 U.S. 159 (2001), was also consistent

with this approach. There the Court rejected the Army

Corps’ application of the Act to isolated ponds based on

their use as migratory bird habitats, id. at 167, but did

not reject the Act’s application to waters based on their

significant effects on downstream waterways. In fact,

10

the Court distinguished Riverside Bayview on the basis of the “significant nexus between the wetlands and

‘navigable waters’” in that case, which implicated

“Congress’ concern for the protection of water quality

and aquatic ecosystems.” Id.

Justice Kennedy’s concurring opinion in Rapanos

also relied on the existence of a “significant nexus” between covered wetlands and navigable waters. 547

U.S. at 759. While that phrase itself does not appear

in the statute, Justice Kennedy made clear that the

framework is nonetheless grounded firmly in the Act.

He explained that the “required nexus must be assessed in terms of the statute’s goals and purposes,”

and that “Congress enacted the law to ‘restore and

maintain the chemical, physical, and biological integrity of the Nation’s waters.’” Id. at 779 (quoting 33

U.S.C. § 1251(a)). Therefore, because “wetlands can

perform critical functions related to the integrity of

other waters—functions such as pollutant trapping,

flood control, and runoff storage”—Justice Kennedy

explained that they fall within the Act’s coverage if

they “significantly affect the chemical, physical, and

biological integrity of other covered waters.” Id. at

779–80.

When the Court interpreted the Clean Water Act

most recently in Maui, it again reaffirmed that the Act

must be interpreted in a way that is consistent with

Congress’s stated objective to “restore and maintain

the . . . integrity of the Nation’s waters.” Maui, 140 S.

Ct. at 1468 (quoting 33 U.S.C. § 1251(a)). The Court

rejected an interpretation of the Act that would create

loopholes allowing the statute’s water-quality objective to be defeated. Id. at 1477. The Court explained

that even an interpretation that is “more absolute” and

would be “easier to administer” still must be rejected

if its consequences are “inconsistent with major

11

congressional objectives.” Id. As explained below, Petitioners’ proposed test here fails for the same reasons.

II. Petitioners’ Test Undermines the Integrity

of Our Nation’s Waters and Contravenes the

Act’s Water-Quality Objective

Because wetlands and tributaries can significantly

affect the chemical, physical, and biological integrity

of traditional navigable waters, categorically excluding most of them from the Clean Water Act’s reach

would contravene the Act’s water-quality objective and

comprehensive scope. Petitioners nonetheless define

“waters of the United States” in a way that would do

just that.

The first step of Petitioners’ test for including wetlands as “waters of the United States” would require a

continuous surface connection between the wetlands

and so-called “authentic ‘water[s],’” Pet’rs’ Br. 28, similar to the test proposed by the Rapanos plurality. Petitioners then go further than the Rapanos plurality

and, in the second step, would require that the surface

connection be to a water deemed navigable. In short,

Petitioners would define “waters of the United States”

as only waters deemed navigable and wetlands with

continuous surface connections to them. Both of these

steps contravene the Clean Water Act and share the

same fundamental flaw: they are not based on protecting water quality and would allow degradation of the

integrity of our nation’s waters.

A. The Act Does Not Require a Continuous

Surface Connection or “Relatively

Permanent” Flow

The Rapanos plurality, echoed in the first step of

Petitioners’ test, requires that wetlands have a “continuous surface connection” to another jurisdictional

water, and that tributaries have “relatively

12

permanent” flow, to be “waters of the United States.”

547 U.S. at 742. These requirements are based on misinterpretations of a dictionary and subjective assertions that these waters are not “waters.” Wetlands

and tributaries, even those that lack Petitioners’ and

the plurality’s required characteristics, are still “waters.” And, consistent with the Act’s comprehensive

reach and objective, they are “waters of the United

States” where they significantly affect the chemical,

physical, or biological integrity of traditional navigable

waters. Categorically excluding wetlands and tributaries that lack surface connections and permanent

flow would contravene the Act and undermine its objective.

1. Petitioners claim wetlands are not “waters” unless they physically abut other “waters,” such that the

wetlands become indistinguishable from them. Pet’rs’

Br. 17, 28–29; see also Rapanos, 547 U.S. at 742, 755

(plurality op.). Wetlands, however, are “waters” in

their own right; they need not be continuously connected to other waters to be protected under the Act.

Wetlands are waters or water bodies in ordinary

language. Indeed, Congress itself referred to wetlands

as waters or water bodies repeatedly in the Clean Water Act. For example, Section 404 provides that a state

may administer its own dredge-and-fill permitting

program with respect to waters other than “those waters” used or susceptible to use in interstate or foreign

commerce “including” adjacent wetlands. 33 U.S.C.

§ 1344(g)(1). The word “including”—as opposed to

“and”—makes plain that Congress understood the

wetlands to be “waters.” Other sections of the Clean

Water Act are similar. In the Lake Champlain Basin

Program, Congress referred to “streams, rivers, lakes,

and other bodies of water, including wetlands.” Id.

§ 1270(g)(2) (emphasis added). Elsewhere Congress

13

referred to “streams, rivers, wetlands, other waterbodies, and riparian areas,” id. § 2336(b)(2) (emphasis

added), and defined “coastal waters’’ to mean the waters of the Great Lakes “including” portions of other

“bodies of water” with certain features, “including wetlands,” id. § 2802(5). These examples show that there

is nothing contrary to “ordinary language” about referring to wetlands as waters or waterbodies. Pet’rs’ Br.

25. Congress itself plainly understood wetlands as waters.

Petitioners claim that wetlands cannot be waters

because they are “lands with some amount of water on

them.” Pet’rs’ Br. 25. That argument proves too much,

as it describes every water body right down to the Pacific Ocean. See United States v. California, 436 U.S.

32, 36 & n.9 (1978) (describing an area of the Pacific

as “submerged lands” with “waters located on or over”

them). Petitioners also suggest that Congress may not

have considered wetlands to be water bodies because,

in the mid-19th century, Congress supposedly viewed

wetlands as nuisances. Pet’rs’ Br. 26–27. But by 1977,

Congress made explicit its intent to protect wetlands,

see Pub. L. No. 95-217, sec. 67, 91 Stat. 1566, 1601

(1977) (codified at 33 U.S.C. § 1344(g)(1)); see also
Riverside Bayview, 474 U.S. at 138–39 (discussing 1977

amendments to Clean Water Act), and by 1990, Congress enacted “a long-term goal to increase the quality

and quantity of the Nation’s wetlands,” Pub. L. No.

101-640, sec. 307, 104 Stat. 4604, 4635 (1990) (codified

at 33 U.S.C. § 2317). Petitioners’ idea that when enacting the Clean Water Act, Congress was still operating in a Grimm’s Fairy Tale era of “sinister and forbidding” wetlands, Pet’rs’ Br. 27, is baseless.

To be sure, Riverside Bayview noted that on “a

purely linguistic level, it may appear unreasonable to

classify ‘lands,’ wet or otherwise, as ‘waters.’” 474 U.S.

14

at 132. However, the Court went on to reject this assessment as “simplistic” and failing to do justice to the

“realities of the problem of water pollution.” Id. The

Court also observed that “the transition from water to

solid ground” may not be “abrupt” and it is not always

obvious where to find the limit of “waters.” Id. at 132,

134. But the Court held that the Corps could treat the

wetland at issue as a “water of the United States” not

because of an inability to distinguish it from the

nearby creek or because the wetland was frequently

flooded by the creek, but rather because of the “congressional concern for protection of water quality and

aquatic ecosystems,” and because protecting adjacent

wetlands stemmed from the Act’s goal to maintain and

improve water quality. Id. at 132–33.

The Court in Riverside Bayview never suggested

that the wetland at issue there was “indistinguishable” from the nearby creek. Rapanos, 547 U.S. at 755

(plurality op.); Pet’rs’ Br. 17. In fact, the oral argument transcript from that case makes clear that the

wetland and creek were not directly abutting. See Br.

of Amicus Curiae Idaho Conservation League 19–20

(discussing facts of Riverside Bayview); see also

SWANCC, 531 U.S. at 176 & n.2 (Stevens, J., dissenting) (same). Thus, contrary to Petitioners’ argument

here, Pet’rs’ Br. 22–23, the Court’s determination that

some wetlands are “inseparably bound up with” other

waters referred to their significant effects on water

quality, Riverside Bayview, 474 U.S. at 133–34, not

physical abutment. Notably, the Army Corps regulation discussed in Riverside Bayview protected “adjacent” wetlands as waters of the United States not only

where they physically abutted another waterway, but

also where they were “in reasonable proximity to other

waters of the United States.” Id. at 134 (quoting 42

Fed. Reg. 37,122, 37,128 (July 19, 1977)). The Court’s

15

holding addressed such “adjacent” wetlands, id. at 131

n.8, and the Court’s reasoning turned on the wetlands’

“significant effects on water quality and the aquatic

ecosystem,” id. at 135 n.9.

The Court’s holding in SWANCC also does not support requiring a “surface connection” between wetlands and other waters. In SWANCC, the Court did

not address whether filling the ponds at issue would

significantly affect the integrity of a traditional navigable water. Instead, the Court simply rejected the

Army Corps’ argument that the Act protected the

ponds at issue because they could affect interstate

commerce solely by serving as habitat for migratory

birds. 531 U.S. at 173. And as noted above, pp. 9–10,

SWANCC distinguished the ponds at issue from the

wetlands in Riverside Bayview not because the ponds

lacked a continuous surface connection to other covered waters, but rather because the wetlands in Riverside Bayview had a “significant nexus” to a navigable

water that implicated Congress’s “concern for the protection of water quality.” 531 U.S. at 167.

Consistent with SWANCC and Riverside Bayview,

the scientific literature details the myriad ways in

which wetlands play a vital role in maintaining the

chemical, physical, and biological integrity of downstream traditional navigable waters. Essential functions performed by wetlands include trapping, storing,

and filtering pollutants that would otherwise degrade

downstream waters; temporarily retaining groundwater that supports baseflow in rivers; providing habitat

for breeding fish, insects, and other species to help sustain the biological productivity of downstream waters;

and retaining stormwater, floodwater, and runoff that

would otherwise impair river quality and functioning.

86 Fed. Reg. 69,372, 69,392 (Dec. 7, 2021) (proposed

rule); EPA & Dep’t of the Army, Technical Support

16

Document 30, 173–96 (Nov. 18, 2021) (hereinafter

“TSD”), available at https://tinyurl.com/4a5eruuy.

And even wetlands that lack a direct surface connection to traditional navigable waters or their tributaries

often exert significant effects on downstream waters

through periodic flooding or shallow subsurface connections. See 86 Fed. Reg. at 69,409; TSD at 184–89.2

Despite the undisputed significance of these wetlands to downstream water quality, Petitioners push

for a test that would likely exclude over 45 million

acres of wetlands from the Act’s protections. See Mot.

Summ. J., Ex. 47 Table 2 (Doc. 58-50), S.C. Coastal

Conservation League v. Wheeler, No. 2:20-cv-01687DCN (D.S.C. July 10, 2020) (analyzing effects of sincevacated 2020 rule, which was based largely on the Rapanos plurality). These exclusions would include important wetlands at the doorstep of the Okefenokee

National Wildlife Refuge in southeastern Georgia,

which are critical to the health of the surrounding watershed because they store water during storm events

and filter water, lessening flooding and pollution

downstream. See C. Rhett Jackson et al., Redefining

Waters of the US: A Case Study from the Edge of the

Okefenokee Swamp, 41 Wetlands 106 at 8 (Nov. 2021).

Allowing these wetlands to be destroyed would harm

water quality and quantity locally and downstream,

id., including the St. Marys River and the iconic Okefenokee.

2 Notably, even adjacent wetlands with minimal (or no) hydrological connections can significantly affect downstream waters by

preventing pollution from flowing into the tributary network. See

Rapanos, 547 U.S. at 775 (Kennedy, J., concurring in the judgment) (“[I]t may be the absence of an interchange of waters prior

to the dredge and fill activity that makes protection of the wetlands critical to the statutory scheme.”).

17

Petitioners’ property also demonstrates why interpreting the Act to require “surface connected” wetlands in a statute concerned with water quality makes

little sense. Petitioners argue that Congress did not

regulate their wetland even though: (1) the Act’s single

objective is to “to restore and maintain the . . . integrity of the Nation’s waters,” 33 U.S.C. § 1251(a); (2) the

Act expressly regulates wetlands, id. § 1344(g)(1); and

(3) it is undisputed that filling Petitioners’ wetland

will harm Priest Lake, a navigable water that is only

300 feet away, JA 29, 41–42. Indeed, the record

demonstrates that Petitioners’ wetland provides water-quality improvement to Priest Lake via sediment

retention and nutrient uptake, and provides flow attenuation by retaining runoff and groundwater flow.

Id. at 41–42.

Petitioners argue that Congress nonetheless did

not want to regulate their wetland because, despite an

undisputed subsurface connection to Priest Lake, and

an undisputed influence on the water quality of the

lake, there is no visible surface connection. Pet’rs’ Br.

50; JA 29, 41. But that distinction has no basis in the

Clean Water Act, which treats wetlands as “waters”

without reference to “surface connections,” and it

would severely undermine the Act’s water-quality objective by excluding wetlands that significantly affect

traditional navigable waters. Petitioners’ argument

simply ignores the basic reality that the largest waters

are only as clean as the waters that flow into them.

2. In addition to requiring a continuous surface

connection between wetlands and jurisdictional waters, the Rapanos plurality also asserts that streams

without “relatively permanent” flows of water, such as

ephemeral streams (which flow as a result of precipitation events, such as rain or snowfall), do not count

18

as “waters.”3 Although not directly at issue in this

case—given that there are no ephemeral streams near

Petitioners’ property (JA 30), and the focus of the question presented is on the proper test for wetlands—this

too is wrong, for several reasons.

First, the plurality relies on a dictionary defining

“waters” to mean those found in “streams and bodies

forming geographical features such as oceans, rivers,

[and] lakes” or “the flowing or moving masses, as of

waves or floods, making up such streams or bodies.”

547 U.S. at 732–33 (quoting Webster’s New Int’l Dictionary 2882 (2d ed. 1954)). According to the plurality,

these examples “connote continuously present, fixed

bodies of water.” Id. at 733. But the critical words

“continuously present” come from nowhere. And the

dictionary’s reference to “floods” strongly suggests that

a continuous presence of water is not a necessary feature of “waters.” Rapanos, 547 U.S. at 770 (Kennedy,

J., concurring in the judgment) (noting that a “flood or

inundation” is “impermanent by definition”).4

Second, the Rapanos plurality claims that the

word “stream” implies “continuous flow.” 547 U.S. at

733 n.6 (citing Webster’s New Int’l Dictionary 2493 (2d

3 The plurality asserts that “intermittent” streams also are not

“waters” under the Act, 547 U.S. at 732 n.5, 733–34, 739, but simultaneously allowed for coverage of streams that the agencies

deem “intermittent”—namely, ones with seasonal flow. Id. at 732

n.5; Appendices to TSD at 8, available at tinyurl.com/57ef2fmz

(classifying “intermittent stream[s]” as those that flow continuously, but only at certain times of year).

4 Many ephemeral streams also have “fixed” visually identifiable features, such as channel beds, banks, and ordinary high water marks. See 80 Fed. Reg. 37,054, 37,058 (June 29, 2015) (defining “waters of the United States” to include only tributaries, including ephemeral tributaries, with “physical indicators of flow—

bed and banks and ordinary high water mark”).

19

ed. 1954) (referring to “[a] steady flow, as of water, air,

gas, or the like”)). But “continuous flow,” in the sense

used by the dictionary, does not mean “lasting all

year.” It simply distinguishes a steady flow of liquid

(however long the flow lasts) from more discontinuous

liquid dispersal, like drops or splashes. It does not exclude a stream that flows steadily—“continuously”—

following a precipitation event for a limited time.

Third, the plurality resorts to asserting that intermittent or ephemeral streams are not streams because

of a purported “commonsense understanding.” 547

U.S. at 734. But that is simply not so, linguistically,

scientifically, or as a matter of common sense. For example, a government manual published a decade before the Clean Water Act’s enactment defined “stream”

as water flowing in natural channels, and noted that

streams may be classified as either perennial, intermittent, or ephemeral. U.S.G.S., Manual of Hydrology: General Introduction and Hydrologic Definitions

18 (1960), available at https://tinyurl.com/5f73ujvy.

The photograph below shows a flowing ephemeral

stream. Even if the channel were dry other times of

year, “common sense” does not dictate that this feature

is not a “stream” or a “water.”

20

Floodwaters in an ephemeral stream, Walnut Gulch, Arizona.

EPA, The Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and Semi-arid American Southwest 28 (Nov. 2008), available at https://tinyurl.com/3dzbxx5h.

Finally, the Rapanos plurality theorizes that intermittent or ephemeral streams are more like

“ditches” or “channels,” and therefore akin to “point

sources” under the Act. 547 U.S. at 735–36; 33 U.S.C.

§ 1362(14) (defining “point source”). But the assumption that ditches and channels have only intermittent

flow is unsupported. See Rapanos, 547 U.S. at 802

(Stevens, J., dissenting) (each example of a “point

source” in the Act, such as pipes and channels, “can all

hold water permanently as well as intermittently”). In

a lengthy footnote, the plurality claims that when

ditches and channels have permanent flows, they are

called something else—like rivers, creeks, or streams.

Id. at 736 n.7. But ephemeral streams are also called

streams—not necessarily “channels.” And the plurality acknowledges that at least some features with a

“continuous presence of water” are not “waters” under

its reading. Id. Thus, the plurality concedes that continuity of flow ultimately does not dictate whether a

feature is a “water of the United States.”

21

Instead, the Rapanos plurality’s interpretation of

“waters” boils down to say-so: whether the plurality

considers a particular feature to be a “water.” Petitioners take the same approach. See Pet’rs’ Br. 26

n.10, 23–24 (a feature is a “water” if it is “akin to”

something “normally considered ‘waters’” or “ordinarily referred to as a ‘water’”). But as explained above,

there is no basis in ordinary usage, or the Act itself, to

conclude that all streams not deemed “relatively permanent” are not “streams.”

In fact, the Act’s purpose—to restore and maintain

water quality—may be equally or more affected by impermanent tributaries than by small, continuous ones.

See Rapanos, 547 U.S. at 769 (Kennedy, J., concurring

in the judgment) (the plurality’s flow requirement

“makes little practical sense in a statute concerned

with downstream water quality,” because a continuous

“trickle” would count as a “water,” while “torrents

thundering at irregular intervals” would not); TSD at

159 (after a storm event, “contributions of the stormflow from ephemeral tributaries accounted for 76% of

the flow of the Rio Grande”).

B. The Clean Water Act Applies to More

Than Traditional Navigable Waters

Petitioners also propose a “second step” to their jurisdictional test, Pet’rs’ Br. 23, but it would be better

described as a giant leap backward: they would protect

only traditional navigable waters (and wetlands that

physically abut them), despite the fact that Congress

has repeatedly rejected this failed approach to federal

jurisdiction and this Court expressly rejected it as an

interpretation of the Act.

When Congress enacted the Clean Water Act in

1972, it retained the term “navigable waters” from

prior legislation, but—crucially—expanded the Act’s

22

scope by redefining it broadly as the “waters of the

United States.” See Riverside Bayview, 474 U.S. at

133. The House had proposed defining the Act’s jurisdiction as “navigable waters of the United States,”

H.R. Rep. No. 92-911, at 53 (1972), but the Senate conferees specifically deleted the word “navigable,” making clear that “waters of the United States” is not constrained by navigability. S. Rep. No. 92-1236, at 144

(1972) (Conf. Rep.). Congress thus intended to “repudiate limits that had been placed on federal regulation

by earlier water pollution control statutes,” and 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 133.5

Congress also made this intent plain in other provisions of the Act. For example, Congress specifically

limited state permitting under Section 404 to waters

that are not traditional navigable waters, and instead

authorized it only for waters “other than those waters

which are presently used, or are susceptible to

use[,] . . . as a means to transport interstate or foreign

commerce.” 33 U.S.C. § 1344(g)(1) (emphasis added).

As the Rapanos plurality acknowledges, “[t]his provision shows that the Act’s term ‘navigable waters’ includes something more than traditional navigable waters.” 547 U.S. at 731. Indeed, the plurality goes on to

reject Petitioners’ theory that the “other” waters described in Section 404(g)(1) are strictly intrastate navigable waters. Id. at 731 n.3.

5 Notably, the significant nexus test still gives the term “navigable” some import, because the “waters of the United States”

covered by that test have at least some significant connection to

downstream traditional navigable waters. Rapanos, 547 U.S. at

779 (Kennedy, J., concurring in the judgment).

23

As explained above, supra Part I.B, Congress intended the Act to apply broadly—and to expand federal jurisdiction over water pollution control beyond

the narrow, navigability-based approach of previous

efforts—precisely because those prior efforts had

proved to be “inadequate in every vital aspect.” Milwaukee, 451 U.S. at 310 (quoting S. Rep. No. 92-414 at

7). That is why Congress replaced those prior efforts

with an “all-encompassing program of water pollution

regulation,” id. at 318, that—for the first time—“dominate[d] the field” by covering “virtually all bodies of

water,” Ouellette, 479 U.S. at 492.

Consistent with Congress’s design, the scientific

literature unequivocally demonstrates that upstream

tributaries significantly affect the integrity of traditional navigable waters. TSD at 29; see also id. at 157–

73. Tributaries concentrate, mix, transform, and

transport water and other materials downstream; they

transport and transform chemical elements and compounds, influencing water quality, sediment deposition, nutrient availability, and biotic functions in

downstream waters; and they facilitate dispersal and

migration, processes that have critical biological implications for aquatic organisms that depend on downstream waters to complete their life cycles or maintain

viable populations. Id. at 158; see also 86 Fed. Reg. at

69,390–92.

Despite this science and the abundant history

above, Petitioners’ theory would require finding that

that the Clean Water Act actually shrank federal jurisdiction to cover only navigable waters and indistinguishable abutting wetlands, “but no more.” Pet’rs’ Br.

43. As Petitioners acknowledge, previous statutes

since the nineteenth century protected any “tributary

of any navigable water.” Id. at 33–34 (citing, e.g.,

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

24

U.S. 690 (1899)). Likewise, courts have long affirmed

that Congress has “the authority to regulate nonnavigable waters when that regulation is necessary to

achieve Congressional goals in protecting navigable

waters.” United States v. Deaton, 332 F.3d 698, 707

(4th Cir. 2003) (collecting cases); see also Oklahoma ex

rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525

(1941) (“There is no constitutional reason why Congress cannot under the commerce power treat the watersheds as a key to flood control on navigable streams

and their tributaries.”). Yet Petitioners suggest, without support, that Congress in 1972 excluded all nonnavigable tributaries of navigable waters from the

“waters of the United States.” Pet’rs’ Br. 44. The opposite is true: Congress recognized that jurisdiction

under the Act must extend to “navigable waters . . .

and their tributaries” for the health of the “aquatic ecosystem” and “well-being of human society.” S. Rep. No.

92-414, at 76–77 (1971) (emphasis added).

Developments after 1972 further refute Petitioners’ theory. In 1973, EPA promulgated regulations defining ‘‘navigable waters’’ broadly to include not only

traditional navigable waters, but also their tributaries. 38 Fed. Reg. 13,528, 13,529 (May 22, 1973). Although Army Corps regulations adopted the following

year applied only to traditional navigable waters, this

navigability approach was soundly rejected by federal

courts. See United States v. Ashland Oil & Transp.

Co., 504 F.2d 1317, 1325 (6th Cir. 1974); Nat. Res. Def.

Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C.

1975); United States v. Holland, 373 F. Supp. 665

(M.D. Fla. 1974). Consequently, the Corps acknowledged that the Act required it to extend federal waterquality protections to non-navigable tributaries and

wetlands. 40 Fed. Reg. 31,320, 31,324–25 (July 25,

1975).

25

In response, Congress considered a 1977 legislative proposal that would have redefined and limited

federal jurisdiction to match Petitioners’ theory by

limiting the scope of Section 404 to cover only navigable-in-fact waters and their adjacent wetlands. See

Riverside Bayview, 474 U.S. at 135–38. Congress rejected this attempt to reduce the scope of the Act. H.R.

Rep. No. 95-830, at 97–105 (1977) (Conf. Rep.). As this

Court recognized, the 1977 amendments that Congress ultimately passed made explicit its intent to protect more than traditional navigable waters, and “retained the [1972 Act’s] comprehensive jurisdiction over

the Nation’s waters.” Riverside Bayview, 474 U.S. at

136–37 (quotation and alteration omitted). As lawmakers explained at the time, that “comprehensive

coverage” was “essential for the protection of the

aquatic environment” because even “seemingly separable” aquatic systems are, in fact, “interrelated and

interdependent.” 123 Cong. Rec. 26,718 (1977) (statement of Sen. Baker). One “cannot . . . preserve the remaining qualities of our water resources without

providing appropriate protection for the entire resource.” Id.

In other words, Congress in 1977 already rejected

Petitioners’ proposed theory, which would have required limiting the scope of the 1972 Act. Congress

enacted other measures, however, to soften the impact

of the Act’s broad jurisdictional scope. See, e.g., Pub.

L. No. 95-217, § 67, 91 Stat. at 1600 (adding general

permitting provision and permitting exclusions for certain agricultural and other activities) (codified at 33

U.S.C. § 1344(e), (f)). Congress understood that the

Act could not achieve its water-quality objective if it

excluded from its scope upstream tributaries and wetlands that significantly affect downstream waters.

26

C. Regulating Discharges “Indirectly” Does

Not Close the Loopholes Opened by

Petitioners’ Approach

Petitioners and the Rapanos plurality try to downplay the consequences of their tests by suggesting that

the agencies may still be able to require permits for

certain upstream discharges so long as the pollution

eventually flows downstream to “waters of the United

States.” 547 U.S. at 743; Pet’rs’ Br. 42 (suggesting that

Congress regulated discharges that “end up in” traditional navigable waters). But this “indirect discharge”

theory suffers from multiple flaws. Most significantly,

it purports to regulate harm solely from mobile pollutants (and only questionably at that), leaving unaddressed the significant harms to traditional navigable waters that result from the wholesale destruction

of streams and wetlands—like Petitioners’ wetland

here—when they are filled.

1. The “indirect discharge” theory would be the

agencies’ only means of regulating mobile pollutants

that wash downstream, according to Petitioners. Such

an approach would be highly problematic. Regulating

pollutant discharges “indirectly” only when they flow,

eventually, to a “water of the United States” might require, first, that the pollution be identified in the

(sometimes large) downstream water body, and second, that the agencies trace a given pollutant upstream to a particular tributary and a particular

source on that tributary. Even if the pollution source

is found, the agencies might have to prove that the discharge is the “functional equivalent of a direct discharge” to a downstream navigable water, applying

several different factors. Maui, 140 S. Ct. at 1468.

The Rapanos plurality questions why such tracing

would be harder than proving that the upstream tributary flows to the downstream water. 547 U.S. at 745.

27

But if arsenic or any other pollutant were found in

Lake Michigan, it is not clear whether the “indirect

discharge” theory would allow the agencies to regulate

all dischargers of that pollutant along all upstream

tributaries, without proving that each point source in

fact contributed to the pollution found in the Lake. By

contrast, if the tributaries and wetlands themselves

were (properly) regarded as “waters of the United

States,” each point source discharging into such waters would require a permit. That result is far more

consistent with the objective and structure of the Act,

which Congress designed specifically to regulate pollutants at their source—not merely in the downstream

traditional navigable waters. See supra Part I.A.

2. More fundamentally, the “indirect discharge”

theory ignores the tremendous harm to downstream

waters caused by discharging dredged or fill material

into excluded wetlands and tributaries. See Rapanos,

547 U.S. at 744 (plurality op.) (acknowledging that the

theory would not address fill that “stay[s] put”). In a

statute dedicated to protecting water quality, there is

no reason why Congress would have differentiated between the water-quality harm caused by mobile pollutants and the water-quality harm caused by filling and

destroying upstream waters. Exempting the latter activities would open a significant gap in the Act’s protection of downstream navigable waters. Indeed, even

prior to the Act’s passage, Congress regulated not only

upstream mobile pollutants that flowed to downstream waters, but also other types of upstream manipulation that influence downstream waters. See Oklahoma, 313 U.S. at 525–26 (upholding Congress’s authority to dam a tributary of the Mississippi River, noting that “control over the non-navigable parts of a river

may be essential or desirable in the interests of the

navigable portions”).

28

Petitioners claim that Congress “recognized” that

upstream fill “likely would never reach navigable waters,” and regulating it would “do little” for downstream water quality. Pet’rs’ Br. 42; see also Rapanos,

547 U.S. at 743–44 & n.11 (plurality op.). These claims

are manifestly incorrect. Even assuming fill does not

migrate downstream, depositing dredge and fill material into an upstream wetland or tributary—such as by

converting that wetland or tributary to dry land, or

significantly changing its structure and function—can

unquestionably harm the integrity of downstream waters.

Filling wetlands that lack surface connections to

other covered waters can significantly impair downstream navigable waters. See supra p. 16 (discussing

wetlands near Okefenokee National Wildlife Refuge).

A wetland lacking a surface connection can significantly affect the condition and function of downstream

waters by storing water and thus attenuating downstream flooding and reducing nutrient and soil pollution in downstream waters. Rapanos, 547 U.S. at 775

(Kennedy, J., concurring in the judgment). When wetlands perform filtering and runoff-control functions,

“filling them may increase downstream pollution,

much as a discharge of toxic pollutants would.” Id. (citing U.S. Congress, Office of Technology Assessment,

Wetlands: Their Use and Regulation, OTA–O–206, pp.

43, 48–52 (Mar. 1984)).

Filling tributaries can also harm downstream waters. Tributaries, even when they are seasonal or

ephemeral, are the dominant source of water in most

rivers. TSD at 159; see also id. at 166. Small tributary

streams “often have the greatest effect” on downstream water quality by storing and reducing chemical

inputs, serving as a sink for contaminants that would

otherwise reach downstream waters. Id. at 162–63.

29

Headwater streams can also provide habitat for species that use downstream waters and can serve as a

food source to organisms living in downstream waters.

Id. at 164. In specific cases, EPA has found that the

“burial” of certain headwater streams and their tributaries by filling them would result in unacceptable adverse effects on wildlife downstream, by removing the

buried streams’ functions and resulting in a significant

loss of habitat, degrading downstream aquatic ecosystems. See 76 Fed. Reg. 3126, 3128 (Jan. 19, 2011);

Mingo Logan Coal Co. v. EPA, 70 F. Supp. 3d 151, 169–

70, 177–78 (D.D.C. 2014).

The Act itself also belies Petitioners’ assumption

that Congress was not concerned with the discharge of

dredged or fill material that can significantly affect

downstream water quality. Section 404(c) grants EPA

authority to prohibit the disposal of dredged or fill material in specified areas if it “will have an unacceptable

adverse effect on municipal water supplies, shellfish

beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C.

§ 1344(c); see supra pp. 4–5. The disposal site itself

need not be a municipal water supply, fishery, or recreational area—rather, EPA is empowered to regulate

the disposal of fill that may “have an . . . effect” on such

areas. “Because an entity will never be permitted to

discharge dredged and fill material directly into municipal water supplies, it follows that Congress must

have contemplated that EPA would be concerned with

an effect occurring downstream from the discharge

site.” Mingo Logan Coal, 70 F. Supp. 3d at 178.

Notwithstanding Congress’s textual requirement

to prevent downstream water-quality impacts from

discharged fill, Petitioners’ and the Rapanos plurality’s theories would allow discharges of fill in wetlands

or tributaries that would degrade downstream

30

municipal water supplies, fisheries, and recreational

areas—exactly the harmful outcomes Congress enacted the statute to prevent. Indeed, Petitioners’ theory would allow the unpermitted destruction of every

non-navigable tributary to a river system, so long as

the fill did not make its way downstream. Because

these theories would unquestionably degrade the

chemical, physical, and biological integrity of our Nation’s waters, they are contrary to the Clean Water Act

and must be rejected.

CONCLUSION

The Court should affirm the judgment below.

Respectfully submitted,

Catherine M. Rahm

Ian Fein

NATURAL RESOURCES

DEFENSE COUNCIL

40 W. 20th Street

New York, NY 10011

Counsel for Natural

Resources Defense

Council

Nicholas S. Torrey

Counsel of Record

SOUTHERN ENVIRONMENTAL

LAW CENTER

601 West Rosemary Street,

Suite 220

Chapel Hill, NC 27516

(919) 967-1450

ntorrey@selcnc.org

Counsel for Environmental

and Community Organizations

APPENDIX

1a

Appendix A

The Environmental and Community Organizations

participating as amici curiae are:

10,000 Hawks

Alabama Rivers Alliance

Alaska Environment

Alliance for the Great Lakes

Alliance of Nurses for Healthy Environments

American Rivers, Inc.

American Whitewater

Amigos Bravos

Anthropocene Alliance

Black Warrior Riverkeeper, Inc.

Buffalo River Watershed Alliance

Cahaba River Society

California Environmental Voters

Cape Fear River Watch

Carolina Wetlands Association

2a

Center for a Sustainable Coast

Center for Biological Diversity

Charles River Watershed Association

Charleston Waterkeeper

Chattahoochee Riverkeeper, Inc.

Chesapeake Bay Foundation, Inc.

Choctawhatchee Riverkeeper

Citizens for Pennsylvania’s Future

Clean Water Action

The Clinch Coalition

Coastal Conservation League

Congaree Riverkeeper

Connecticut League of Conservation Voters

Conservation Alabama

Conservation Federation of Missouri

Conservation Voters New Mexico

Dan River Basin Association

Dogwood Alliance

3a

Endangered Habitats League

Environment America

Environment Arizona

Environment California

Environment Colorado

Environment Florida

Environment Georgia Research & Policy Center

Environment Maine

Environment Michigan

Environment Minnesota

Environment Montana

Environment New Hampshire

Environment New Jersey

Environment New Mexico

Environment New York

Environment Ohio

Environment Rhode Island

Environment Texas

4a

Environmental Law & Policy Center

Flint Riverkeeper Inc.

Flood Naught

Florida Wildlife Federation, Inc.

Food & Water Watch

Friends of the Rappahannock

Friends of the Rivers of Virginia

Georgia Audubon

Georgia Canoeing Association

Georgia Conservation Voters

Georgia Interfaith Power and Light

Georgia River Network

Good Stewards of Rockingham

Great Egg Harbor Watershed Association

Harpeth Conservancy

Haw River Assembly

Healthy Gulf

Kentucky Waterways Alliance

5a

Lake Watch of Lake Martin, Inc.

League of Conservation Voters

Lynnhaven River NOW

Maine Conservation Voters

Maryland League of Conservation Voters

Massachusetts Rivers Alliance

Memphis Community Against Pollution (MCAP)

Michigan League of Conservation Voters

Mobile Baykeeper

Montana Conservation Voters Education Fund

MountainTrue

Musconetcong Watershed Association

National Trust for Historic Preservation in the

United States

National Wildlife Refuge Association

Natural Resources Defense Council

NC League of Conservation Voters

New York League of Conservation Voters

Obed Watershed Community Association

6a

Ogeechee Riverkeeper

One Hundred Miles

Oregon League of Conservation Voters

The People’s Justice Council

Potomac Riverkeeper Network

Protect Our Aquifer

Public Employees for Environmental Responsibility,

Inc.

The River Project

Satilla Riverkeeper

Savannah Riverkeeper

Save Our Saluda

Saving Island Green Wildlife & Beyond

Shoals Environmental Alliance

Sierra Club

Sound Rivers

SouthWings

Tennessee Citizens for Wilderness Planning

Tennessee Environmental Council

7a

Tennessee Riverkeeper

Tennessee Scenic Rivers Association

Tip of the Mitt Watershed Council

Upstate Forever

Vermont Natural Resources Council

Waterway Advocates, Inc.

Wetlands Watch

Wisconsin Conservation Voters

Wisconsin Environment