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.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

RESPONDENTS.

__________________

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

__________________

BRIEF OF FORMER EPA ADMINISTRATORS

WILLIAM K. REILLY AND CAROL M.

BROWNER AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

___________

Beth S. Brinkmann

Counsel of Record

Gary S. Guzy

Thomas Brugato

Eric Chung

Martin Levy

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

bbrinkmann@cov.com

June 17, 2022

Counsel for Amici

Curiae Former EPA

Administrators

i

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).

ii

TABLE OF CONTENTS

Page

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

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

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

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

INTRODUCTION

AND

SUMMARY

OF

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

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

I.

EPA’s Protection of “Waters of the United

States,” as Directed by the Clean Water Act,

Has

Long

Included

Wetlands

and

Intermittent Waterways if They Have

Significant Effects on Other Waters of the

United States. ......................................................4

A.

Since the 1970s, EPA, the Army Corps

of Engineers, and this Court Have

Interpreted the Clean Water Act to

Protect Wetlands and Intermittent

Waterways

Where

They

Have

Significant Effects on Other Waters of

the United States. ........................................5

B.

EPA’s Protection of Wetlands and

Intermittent Waterways that Have

Significant Effects on Other Waters of

the United States Is a National

Success Story Demonstrating the

Effectiveness of Congress’s Directive. .......16

1.

The “No

Wetlands

Net Loss” of

Policy

and

iii

General Permitting under

the Statute ...................... 16

II.

2.

Coordination Between EPA

and the Corps Pursuant to

Section 1344(c) Permitting

For

Dredged

or

Fill

Material .......................... 20

3.

Protection

of

the

Intermittent Waterway of

the Los Angeles River .... 22

Adopting

Petitioners’

Proposal

Would

Significantly

Undermine

EPA’s

Implementation of the Clean Water Act. ..........26

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

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Alameda Water & Sanitation Dist. v.

Reilly,

930 F. Supp. 486 (D. Colo. 1996) ......................... 21

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) .......................................... 6, 26

County of Maui, Hawaii v. Hawaii

Wildlife Fund,

140 S. Ct. 1462 (2020) .............................. 13, 14, 18

N. Cal. River Watch v. City of

Healdsburg,

496 F.3d 993 (9th Cir. 2007) ................................ 13

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

392 F. Supp. 685 (D.D.C. 1975) ............................. 8

Orchard Hill Bldg. Co. v. U.S. Army

Corps of Eng’rs,

893 F.3d 1017 (7th Cir. 2018) .............................. 13

Pascua Yaqui Tribe v. EPA,

557 F. Supp. 3d 949 (D. Ariz. 2021) .................... 15

Precon Dev. Corp. v. U.S. Army Corps of

Eng’rs,

633 F.3d 278 (4th Cir. 2011) ................................ 13

v

Rapanos v. United States,

547 U.S. 715 (2006) ........................ 2, 11, 14, 22, 25

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .............................................. 10

United States v. Bailey,

571 F.3d 791 (8th Cir. 2009) ................................ 13

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009) ................................ 13

United States v. Donovan,

661 F.3d 174 (3d Cir. 2011) ................................. 13

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) .................................. 13

United States v. Lucas,

516 F.3d 316 (5th Cir. 2008) ................................ 13

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985) ...................................... 6, 9, 10

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007) ............................ 13

Ysleta Del Sur Pueblo v. Texas,

--- S. Ct. ---, 2022 WL 2135494

(U.S. June 15, 2022) ............................................. 12

vi

Statutes

14 U.S.C. § 527 .......................................................... 27

16 U.S.C. § 817 .......................................................... 27

33 U.S.C. § 1251 ............................................ 2, 5, 7, 30

33 U.S.C. § 1311 .......................................................... 7

33 U.S.C. § 1313 ........................................................ 27

33 U.S.C. § 1342 ...................................................... 3, 7

33 U.S.C. § 1344 .......................... 3, 7, 8, 17, 20, 21, 22

33 U.S.C. § 1362 ............................................ 3, 7, 8, 27

33 U.S.C. § 1362(7) ............................................ 3, 7, 27

Clean Water Act of 1977, Pub. L. No.

95-917, 91 Stat. 1566 ............................................. 9

Water Quality Act of 1987, Pub. L. No.

100-4, 101 Stat. 7 ................................................. 10

Other Authorities

33 C.F.R. § 328.3(a) ..................................................... 9

118 Cong. Rec. 33756-57 (1972)

(statement of Rep. Dingell) .................................... 6

40 Fed. Reg. 19,794 (May 6, 1975) .............................. 9

40 Fed. Reg. 31,320 (July 25, 1975) ............................ 9

vii

42 Fed. Reg. 37,122 (July 19, 1977) ...................... 9, 19

44 Fed. Reg. 32,854 (June 7, 1979) ............................. 9

51 Fed. Reg. 41,206 (Nov. 13, 1986) ......................... 10

86 Fed. Reg. 69,372 (Dec. 7, 2021) ............................ 28

S. Rep. No. 92-414 (1972) ........................................ 6, 7

1

INTERESTS OF AMICI CURIAE1

Amici curiae are former Administrators of the

United States Environmental Protection Agency.2

Each Amici was charged in that role with the

responsibility of implementing Congress’s directive to

restore the Nation’s waters under the Federal Water

Pollution Control Act of 1972, 33 U.S.C. § 1251 et seq.

(“Clean Water Act”). The tenures of the Amici as

Administrator total more than 12 years and cross two

Presidential Administrations. Their experience is

directly relevant to the issues before the Court.

In accordance with Supreme Court Rule 37.6, Amici curiae

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

in part, and that no party or counsel other than the Amici curiae

and its counsel made a monetary contribution intended to fund

the preparation or submission of this brief. All parties have

consented to the filing of this amicus brief.

1

2 Amici are Former EPA Administrator William K. Reilly (1989

to 1993) and Former EPA Administrator Carol M. Browner (1993

to 2001).

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

For most of the past several decades, during both

Democratic and Republican Administrations, EPA

has followed Congress’s instruction to provide

comprehensive protections to the waters of the United

States pursuant to the Clean Water Act. Congress

emphasized the need “to restore and maintain the

chemical, physical, and biological integrity of the

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

Central to EPA’s comprehensive protection has

been the long-standing recognition that water moves

in hydrological cycles, including unique aspects of how

water passes through not only large waterways but

also through geographical features such as wetlands

and also intermittent rivers and streams, even though

not traditionally navigable (collectively referred to as

“intermittent waterways”). Upstream water bodies

like wetlands and intermittent waterways act as

complex living filter systems gathering and gradually

releasing water to downstream rivers and lakes while

removing pollutants and sediments in the process.

Because of those unique features, Congress’s

directive necessarily contemplates regulation of

waters that “significantly affect the chemical,

physical, and biological integrity of other covered

waters more readily understood as ‘navigable.’”

Rapanos v. United States, 547 U.S. 715, 780 (2006)

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

pursuant to the statute have led to the revival of the

Nation’s waters, greatly enhancing the health and

quality of life in the country.

3

Under the leadership of Amici and others, EPA has

determined which wetlands are “waters of the United

States,” 33 U.S.C. §§ 1342(a), 1362(7), subject to the

Clean Water Act, by fact-based assessments applying,

in essence, what has become known in shorthand as

the “significant nexus” analysis.

That analysis

considers the unique interconnectedness of the

Nation’s waters and recognizes the simple fact that

downstream waters can be affected by what happens

upstream.

That approach adheres to the text,

structure, and purpose of the Clean Water Act, and

respects this Court’s precedents recognizing that the

statute’s grant of authority to the agency is not

restricted to traditional navigability by watercraft.

EPA’s protection of wetlands and intermittent

waterways under this statutory scheme has been a

national success story, confirming the effectiveness of

the statute. Administrators of the EPA, including

Amici, oversaw multiple agency programs that

directly furthered Congress’s directive, including a

“no net loss” policy that ensured the protection of

certain wetlands while reducing regulatory burdens

on landowners; the prevention of discharge into

certain wetlands under the Section 1344(c) permitting

program for dredging and fill; and the preservation of

the Los Angeles River.

Petitioners’ proposal would upend that approach.

Petitioners ask this Court to impose on the agency a

framework that has no basis in the statutory

structure, or purpose—or indeed in science. The

Court should reject that proposal and reaffirm that

wetlands and intermittent waterways that have a

significant effect on downstream waters of the United

4

States are covered by the statute, consistent with the

significant nexus analysis.

ARGUMENT

I. EPA’S PROTECTION OF “WATERS OF THE UNITED

STATES,” AS DIRECTED BY THE CLEAN WATER

ACT, HAS LONG INCLUDED WETLANDS AND

INTERMITTENT WATERWAYS IF THEY HAVE

SIGNIFICANT EFFECTS ON OTHER WATERS OF THE

UNITED STATES.

Since shortly after Congress’s 1972 enactment of

the Clean Water Act, Administrators of the EPA,

including Amici, have followed Congress’s directive by

applying what is in effect the “significant nexus”

analysis to determine which wetlands are subject to

the Act—with a few exceptions that in fact underscore

the validity of that approach. This is in essence the

basic approach EPA has applied—in practical

application—for most of the past forty years, and it

has not been altered by Congress. In fact, Congress

expressly endorsed the regulation of adjacent

wetlands in 1977, and Congress declined, in major

1987 amendments, to alter the regulatory framework.

Despite Petitioners’ efforts to depict wetlands as

“forbidding” “swamps,” Pet. Br. 27, wetlands have

long been recognized as vital to protecting a range of

important values essential to Congress’s clean water

directives, including: production of fish and shellfish;

water storage to mitigate effects of floods and

droughts; water purification; recreation; timber

production; food production; habitat for threatened

and endangered aquatic species; education and

5

research; and open space and aesthetic values.3

Indeed, as President George W. Bush recognized,

“[o]ur wetlands help to trap pollution,” “[t]hey reduce

the impact of floods,” and they “stabilize shore areas.”4

“Wetlands have been called the nurseries of life, and

their well-being is vital to the health of our

environment.”5

A.

Since the 1970s, EPA, the Army

Corps of Engineers, and this Court

Have Interpreted the Clean Water

Act to Protect Wetlands and

Intermittent

Waterways

Where

They Have Significant Effects on

Other Waters of the United States.

1. Congress directed EPA and the Corps to

implement the Clean Water Act of 1972 with the

objective of “restor[ing] and maintain[ing] the

chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). Meeting that

objective is no easy task for one of the country’s most

vital, interconnected resources. As Former EPA

Administrator Russell E. Train observed, “aquatic

systems are . . . interrelated and interdependent. We

cannot expect to preserve the remaining qualities of

3 Laura Gatz, Cong. Research Service, Wetlands:

An Overview of

Issues (Updated Jan. 5, 2017), RL33483.

Earth Day Remarks of President George W. Bush (Apr. 22,

2004).

4

5 Id.

6

our water resources without providing appropriate

protection for the entire resource.”6

The Clean Water Act represented a major

departure from prior, unsuccessful efforts at water

pollution control that focused only on meeting

aspirational state water quality objectives. The new

Act augmented that earlier approach with pollution

control requirements. “Congress’ intent in enacting

the Amendments [in 1972] was clearly to establish an

all-encompassing program of water pollution

regulation. Every point source discharge is prohibited

unless covered by a permit, which directly subjects the

discharger to the administrative apparatus

established by Congress to achieve its goals. The

‘major purpose’ of the Amendments was ‘to establish

a comprehensive long-range policy for the elimination

of water pollution.’ S. Rep. No. 92-414, at 95, 2 Leg.

Hist. 1511 (emphasis supplied).” City of Milwaukee v.

Illinois, 451 U.S. 304, 318-19 (1981) (Rehnquist, J.)

(footnotes omitted).

Moreover, as this Court has recognized, Congress

“exercise[d] its powers under the Commerce Clause to

regulate at least some waters that would not be

deemed ‘navigable’ under the classical understanding

of that term.” United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133 (1985) (citing S. Conf.

Rep. No. 92-1236, at 144 (1972) and 118 Cong. Rec.

33756-57 (1972) (statement of Rep. Dingell)). Indeed,

Section 404 of the Federal Water Pollution Control Act

Amendment of 1972: Hearings Before the Sen. Public Works

Comm., 94th Cong., 41 (1976) (testimony of EPA Administrator

Russell E. Train).

6

7

Congress explicitly defined “navigable waters” for

purposes of the statute to not be limited to only waters

that are “navigable,” but to more broadly mean “the

waters of the United States, including the territorial

seas.” 33 U.S.C. § 1362(7). That is consistent with the

interconnected nature of the system, and the fact that

wetlands and intermittent waterways can drastically

alter the integrity of downstream traditionally

navigable waters without being permanent or

physically adjacent to them.7 Downstream water

quality depends on the protection of upstream waters

with which they bear a significant nexus, and suffers

if they are degraded.8

As to discharges into waters of the United States,

Congress recognized that because “[w]ater moves in

hydrologic cycles, . . . it is essential that discharge of

pollutants be controlled at the source.” S. Rep. No. 92414, at 77 (1972). The statute mandates a national

goal of eliminating discharge of pollutants into waters

of the United States, 33 U.S.C. § 1251(a)(1); prohibits

“discharge of any pollutant by any person” except

under provisions of the statute, 33 U.S.C. § 1311;

defines pollutant to include “rock” and “sand,” 33

U.S.C. § 1362(6); and regulates discharge permits, 33

U.S.C. § 1342(a)(1), including for dredge or fill

material, 33 U.S.C. § 1344. Congress specified that

“discharge of pollutants” includes “any addition of any

Judy L. Meyer et al., Where Rivers are Born: The Scientific

Imperative for Defending Small Streams and Wetlands 6-7, 1015 (2003).

7

8 See, e.g., Bruce J. Peterson et al., Control of Nitrogen Export

from Watersheds by Headwater Streams, 292 Science 86, 89 (Apr.

6, 2001).

8

pollutant to navigable waters from any point source.”

33 U.S.C. § 1362(12). The permitting program for

dredge and fill material under Section 1344 is

complementary to the statute’s Section 1342

industrial permitting program and they both serve as

vital elements of the comprehensive Congressional

framework for pollution discharges.

2. EPA and the Army Corps of Engineers have

followed the Clean Water Act’s directives by

addressing discharges in certain upstream waters

such as wetlands when they affect the integrity of

traditionally navigable downstream waterways. The

agencies have made fact-based determinations that

consider the unique interconnectedness of the waters.

This approach is consistent with the significant nexus

analysis discussed by this Court. The statutory text,

structure, and framework all require this approach.

The Army Corps of Engineers initially, and

incorrectly, hewed to its old approach even after the

1972 enactment of the Clean Water Act by adopting

an unduly narrow definition of “waters of the United

States,” which was rejected in litigation, Nat. Res. Def.

Council, Inc. v. Callaway, 392 F. Supp. 685, 686

(D.D.C. 1975), and criticized by EPA.9

By 1975, however, the Corps appropriately

prevented discharges into intermittent waterways

and wetlands if they were necessary “for the

protection of water quality,” even if not adjacent to

traditionally navigable waterways. Army Corps of

9 Letter from EPA Administrator Russell E. Train to Corps Lt.

Gen. W.C. Gribble, Jr. (Jan. 15, 1974).

9

Engineers, 40 Fed. Reg. 31,320, 31,324-25 (July 25,

1975); EPA, 40 Fed. Reg. 19,794 (May 6, 1975)

(parallel EPA guidance).

In 1977, the Corps confirmed that wetlands and

intermittent waterways are part of the waters of the

United States if “they are the type, the degradation or

destruction of which could affect interstate

commerce.” 42 Fed. Reg. 37,122, 37,128 (July 19,

1977). In a major revision to the Act in 1977, Congress

did not disrupt or modify the definition of “waters of

the United States.” Clean Water Act of 1977, Pub. L.

No. 95-917, 91 Stat. 1566.

EPA made clear it agreed in 1979. 44 Fed. Reg.

32,854, 32,901 (June 7, 1979). It defined “waters of

the United States” to include significant wetlands and

intermittent waterways, “the use, degradation or

destruction of which would affect or could affect

interstate or foreign commerce.” See also 33 C.F.R.

§ 328.3(a).

3. In 1985, this Court addressed the statute’s use

of the term “waters of the United States” and reached

a similar conclusion in the context of evaluating

wetlands “adjacent” to traditionally navigable waters.

The Court reasoned that “the evident breadth of

congressional concern for protection of water quality

and aquatic ecosystems suggests that it is reasonable

for the Corps to interpret the term ‘waters’ to

encompass wetlands adjacent to waters as more

conventionally defined.” Riverside Bayview Homes,

474 U.S. at 133.

10

The Court specifically observed that “Congress

evidently intended to repudiate limits that had been

placed on federal regulation by earlier water pollution

control statutes, and to exercise its powers under the

Commerce Clause to regulate at least some waters

that would not be deemed ‘navigable’ under the

classical understanding of that term.” Id. at 132-33.

And the Court reaffirmed several years later that “[i]t

was the significant nexus between the wetlands and

‘navigable waters’ that informed [the Court’s] reading

of the [Clean Water Act] in Riverside Bayview Homes.”

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159, 167 (2001).

The Corps and EPA continued to protect wetlands

and intermittent waterways as part of the waters of

the United States where their use, degradation, or

destruction could affect traditionally navigable

downstream waterways.

Indeed, in 1986, the

regulations were revised and continued to define

waters of the United States as including “all other

waters such as . . . rivers, streams (including

intermittent streams) . . . [and] wetlands, . . . , the

use, degradation or destruction of which could affect

interstate or foreign commerce including any such

waters.” 51 Fed. Reg. 41,206, 41,250 (Nov. 13, 1986);

see also id. at 41,216-17 (Corps regulatory notice

clarifying scope of discharge permit program). When

Congress next amended the statute in 1987, it again

had an opportunity to alter this definition, but did not

do so. Water Quality Act of 1987, Pub. L. No. 100-4,

101 Stat. 7.

EPA issued guidance in 2007 and 2008 and a Clean

Water Rule in 2015 that reaffirmed the essence of its

11

longstanding approach.10 EPA explained that some

wetlands unassailably fall within the Clean Water

Act’s ambit, such as those adjacent to traditional

navigable waters or those abutting non-navigable

tributaries of traditional navigable waters. Whether

other wetlands are covered depends on whether the

wetland “significantly affect[s] the chemical, physical

and biological integrity of downstream traditional

navigable waters.”11 Such wetlands may include

those adjacent to non-navigable tributaries that are

not relatively permanent and those adjacent to (but

not directly abutting) relatively permanent nonnavigable tributaries.

EPA recognized that the

statute did not, however, extend to swales or gullies,

for example.12

4. In 2006, this Court was again faced with a

Clean Water Act question and Justice Kennedy

provided a concurring opinion that reflected, at its

core, a through line back to EPA and the Corps’

longstanding understanding of “waters of the United

States” for purposes of the Act. Rapanos, 547 U.S. at

758-87 (Kennedy, J., concurring in the judgment).

10 EPA, Clean Water Act Jurisdiction Following the U.S. Supreme

Court’s Decision in Rapanos v. United States & Carabell v.

United States (June 5, 2007), (“EPA Post-Rapanos Guidance”);

EPA, Questions and Answers Regarding the Revised Rapanos &

Carabell Guidance (Dec. 2, 2008); Clean Water Rule: Definition

of “Waters of the United States” 80 Fed. Reg. 37053 (June 29,

2015).

11 EPA, Clean Water Act Jurisdiction Following the U.S. Supreme

Court’s Decision in Rapanos v. United States & Carabell v.

United States (June 5, 2007).

12 Id.

12

Although four Members of the Court took a narrower

view, another four Members agreed that wetlands

would be covered by the Act under either analysis.

Justice Kennedy explained that wetlands are

“waters of the United States” if they “possess a

‘significant nexus’ to” traditional navigable waters,

even if they are not directly adjacent. Id. at 759. He

explained that “wetlands possess the requisite nexus,

and thus come within the statutory phrase ‘navigable

waters,’ if the wetlands, either alone or in combination

with similarly situated lands in the region,

significantly affect the chemical, physical, and

biological integrity of other covered waters more

readily understood as ‘navigable.’” Id. at 780.

Justice Kennedy’s analysis is consistent with “the

Act’s text, structure, and purpose,” as EPA and the

Corps had long recognized, because destruction of

such wetlands and intermittent waterways “can

impair downstream water quality” and potentially

increase levels of nutrients, toxins, and pathogens

through greater runoff, release of pollutants, and loss

of filtering capacity. Id. at 774. Justice Kennedy used

the shorthand terminology “significant nexus” to

capture the essence of this test, which also reflected

how EPA and the Corps had interpreted the reach of

the Act.

Assessing the impact on the chemical, physical,

and biological integrity of downstream waterways is

an approach that faithfully executes the framework

created by Congress to protect these crucial resources.

Although any fact-based test may “generate

borderline cases” that can prove challenging, Ysleta

13

Del Sur Pueblo v. Texas, --- S. Ct. ---, 2022 WL

2135494, at *12 (U.S. June 15, 2022), courts also have

been

wholly

capable

of

assessing

agency

determinations under the significant nexus analysis

of whether wetlands or intermittent waterways are

covered by the Act.13

The Court’s reasoning in County of Maui, Hawaii

v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020),

further supports this understanding of the statute.

There, the Court considered whether the Clean Water

Act applies to a pollutant that “leaves a ‘point source’

and then travels through groundwater before

reaching navigable waters.” Id. at 1469. The Court

held “that the statute requires a permit when there is

a direct discharge from a point source into navigable

waters or when there is the functional equivalent of a

direct discharge.” Id. at 1475-77. (emphasis added).

The functional equivalent analysis “best captures, in

broad terms, those circumstances in which Congress

intended to require a federal permit.” Id. at 1476.

And the Court rejected an overly circumscribed

interpretation that would “open a loophole allowing

easy evasion of the statutory provision’s basic

13 See, e.g., Orchard Hill Bldg. Co. v. U.S. Army Corps of Eng’rs,

893 F.3d 1017, 1021 (7th Cir. 2018); United States v. Donovan,

661 F.3d 174, 182 (3d Cir. 2011); Precon Dev. Corp. v. U.S. Army

Corps of Eng’rs, 633 F.3d 278, 288 (4th Cir. 2011); United States

v. Cundiff, 555 F.3d 200, 210 (6th Cir. 2009); United States v.

Bailey, 571 F.3d 791, 799 (8th Cir. 2009); United States v. Lucas,

516 F.3d 316, 327 (5th Cir. 2008); N. Cal. River Watch v. City of

Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007); United States v.

Robison, 505 F.3d 1208, 1222 (11th Cir. 2007); United States v.

Johnson, 467 F.3d 56, 66 (1st Cir. 2006).

14

purposes,” but the Court also rejected views extending

agency authority beyond the scope of the statute. Id.

at 1473-74.

Just as with that functional equivalent analysis in

Maui, the significant nexus analysis here effectuates

“the statute’s structure, its purposes, [and] the text of

the provisions that actually govern” with respect to

wetlands. Id. at 1475.

5. Since 1975, one Administration took a different

approach, promulgating in 2019 the Navigable

Waters Protection Rule (NWPR), which disregarded

EPA’s synthesis of more than 1,200 published and

peer reviewed scientific reports and the independent

engineering and scientific advice rendered by EPA’s

Science Advisory Board.14 Under the NWPR, tidal

wetlands, even within 300 yards of the Gulf of Mexico,

could not be regulated because they were deemed

“non-adjacent” to navigable waters based on

separation from the ocean by a three foot high dune.15

The NWPR limited the scope of wetlands subject to

regulation to those that touch or demonstrate

evidence of a regular surface water connection to

other waters of the United States. That limitation

was “counter to the ample scientific information

before the agencies demonstrating the effects of

14 Cong. Research Service, The Wetlands Coverage of the Clean

Water Act (CWA): Rapanos and Beyond (Apr. 27, 2016)

(describing basis for EPA’s 2015 Clean Water Rule), RL33263, at

13.

David Groves, How the Trump Administration Eased

Destruction of the Nation’s Wetlands and Streams, 51 Envtl. L.

Rep. (ELI) 10194, 10194-95 (2021).

15

15

wetlands on downstream waters when they have

other types of surface connections.”

Revised

Definition of “Waters of the United States,” 86 Fed.

Reg. 69,372, 69,409 (Dec. 7, 2021).

Echoing the judicial vacatur of the Corps’ original

rule nearly five decades earlier, on August 30, 2021, a

federal district court vacated the NWPR based on

“fundamental, substantive flaws that cannot be cured

without revising or replacing the NWPR’s definition

of ‘waters of the United States.’” Pascua Yaqui Tribe

v. EPA, 557 F. Supp. 3d 949, 955 (D. Ariz. 2021),

appeal dismissed, No. 21-16791, 2022 WL 1259088

(9th Cir. Feb. 3, 2022). The district court recognized

that EPA and the Corps had “agree[d] there exist

substantial concerns about certain aspects of the

NWPR . . . including whether the NWPR adequately

considered the CWA’s statutory objective and the

effects of the NWPR on the integrity of the nation’s

waters.” Id. (internal quotation marks omitted). For

instance, the district court noted that the agencies

“are concerned that the NWPR did not look closely

enough at the effect ephemeral waters have on

traditional navigable waters when deciding to

categorically exclude ephemeral waters from the

definition of waters of the United States.” Id.

(internal quotation marks omitted). EPA and the

Army Corps have proposed a rule returning to the pre2015 definition of “waters of the United States”

updated to reflect consideration of this Court’s

decisions. 86 Fed. Reg. 69,372, 69,450 (Dec. 7, 2021).

16

B.

EPA’s Protection of Wetlands and

Intermittent Waterways that Have

Significant Effects on Other Waters

of the United States Is a National

Success Story Demonstrating the

Effectiveness

of

Congress’s

Directive.

During their leadership of EPA, Administrators

including Amici oversaw multiple agency programs

that directly furthered Congress’s directive for

comprehensive protection of the waters of the United

States, including protection of wetlands and

intermittent waterways on which the water quality of

downstream waterways depend.16 These success

stories

created

predictable,

effective,

and

administrable programs consistent with the statutory

directive.

These examples demonstrate that the agencies’

fact-based assessments to determine which wetlands

and intermittent waterways are covered by the

statute under the significant nexus analysis are

appropriate and workable.

1.

The “No Net Loss” of Wetlands

Policy

and

General

Permitting under the Statute

16 See, e.g., Bruce J. Peterson et al., Control of Nitrogen Export

from Watersheds by Headwater Streams, 292 Science 86, 89 (Apr.

6, 2001).

17

EPA’s “no net loss policy” was established during

the tenure of President George H.W. Bush and

Administrator William K. Reilly to facilitate the

program the statute created for permitting discharges

under 33 U.S.C. § 1344.17 The policy has ensured

protections for wetlands most vital to other waters of

the United States, while reducing regulatory burdens

on landowners. The program “offset[s] unavoidable

adverse impacts to existing aquatic resources, and for

wetlands, . . . achieve[s] a goal of no overall net loss of

values and functions.”18

To reach “no net loss,” EPA established criteria for

evaluating wetlands with the highest impact on

downstream waters of the United States for

additional protections while opening up other

wetlands for development.19 At the same time,

Administrator Reilly promoted regulatory flexibility

through mitigation measures in permitting by

encouraging the restoration and rebuilding of new

wetlands for each wetland that was filled or dredged

through an EPA or Corps permit.

This policy

encouraged thoughtful development consistent with

Memorandum of Agreement Between the Environmental

Protection Agency and the Department of the Army Concerning

the Determination of Mitigation Under the Clean Water Act

Section

404(b)(1)

Guidelines

(Feb.

7,

1990),

https://nepis.epa.gov/Exe/ZyPDF.cgi/200053CW.PDF?Dockey=2

00053CW.pdf.

17

18 Id. at 2.

19 Keith Schneider, Bush Announces Proposal for Wetlands, N.Y.

Times (Aug. 10, 1991), at § 1, page 7.

18

environmental protections and also cut annual

wetland losses by three-fourths.20

President Bill Clinton and Administrator Carol M.

Browner expanded the program toward a goal of

attaining net increases of 100,000 wetland acres per

year.21

Under President George W. Bush and

Administrator Christine Todd Whitman, EPA

“affirm[ed] its commitment to the goal of no net loss of

the Nation’s wetlands,” citing the need “to begin

increasing the overall functions and values of our

wetlands” and establishing a new goal of net wetland

gains.22

This policy highlights the administrability of the

Clean Water Act and its inclusion of waters of the

United States beyond traditionally navigable water

bodies through a common-sense approach over

decades by Amici, other former Administrators, and

the Corps. Cf. Maui, 140 S. Ct. at 1477 (confirming

agency application of permitting provision to some but

not all “discharges through groundwater for over 30

years,” and finding that there has been “no evidence

of unmanageable expansion”).

20 EPA, Clean Water Action Plan:

Restoring and Protecting the

Nation’s Waters (Feb. 14, 1998).

21 Id.

Dep’t of Army, et al., National Wetlands Mitigation Action

Plan

(Dec.

24,

2002),

https://www.epa.gov/sites/

default/files/2015-08/documents/national_wetlands_mitigation

_action_plan_0.pdf.

22

19

This balancing of protections with administrative

feasibility has been prevalent throughout the

implementation of the statutory permitting program.

Long before EPA’s “no net loss policy,” the Corps had

issued a nationwide permit for dredging or filling of

wetlands that have only minimal adverse

environmental impacts. 42 Fed. Reg. 37,122, 37,12228 (July 19, 1977) (“We are responding to the concern

of uncertainty over the need to obtain a permit in

these waters by issuing today a nationwide permit for

discharges into most of these waters.”).

In 2017, the Corps reported evaluating more than

85,000 permit requests annually, and authorizing

95% under a general permit determining that “the

proposed activity is presumed to have a minor impact,

individually

and

cumulatively,”

and

allows

“landowners to proceed without having to obtain

individual permits in advance.”23 Through readilyavailable generalized permit conditions that impose

minimal burdens on landowners, the Corps promotes

regulatory certainty while protecting wetlands that

have significant effects on downstream waterways. In

particular, if “the common sense conditions,

guidelines and management practices provided in

these nationwide permits are followed, the concern for

water quality, as it affects the production, movement

and/or use for interstate commerce, ordinarily will be

satisfied with respect to these discharges.” 42 Fed.

Reg. at 37,128.

23 Laura Gatz, Cong. Research Service, Wetlands:

of Issues (Updated Jan. 5, 2017), RL33483 at 7.

An Overview

20

At its core, the “no net loss” policy and the Corps’

general

permitting

scheme

embodies

the

government’s broad and workable authority provided

by the Clean Water Act to protect wetlands while

minimizing regulatory burdens.

Without Clean

Water Act protections for wetlands and intermittent

waterways that have downstream impacts on other

waters of the United States, this common sense

partnership between government and landowners

would not have materialized.

2.

Coordination Between EPA

and the Corps Pursuant to

Section 1344(c) Permitting

For Dredged or Fill Material

The Clean Water Act provides that the Corps leads

administration of the wetlands permit program under

33 U.S.C. § 1344 for dredging or filling material into

waters of the United States at certain specified sites,

but that EPA retains authority under 33 U.S.C.

§ 1344(c) to prohibit specification of an area as a site

if discharge there would have an “unacceptable

adverse effect on municipal water supplies, shellfish

beds and fishery areas . . . , wildlife, or recreational

areas.” This allocation of environmental oversight

authority in the statute is animated by the statute’s

focus on resource protection and ecological integrity

and the agency’s fact-based significant nexus analysis

for protection of the Nation’s waters. While rare, use

of

that

Congressionally

created

authority

demonstrates the effectiveness of the statutory

scheme.

21

During the tenure of Administrator Reilly, EPA

invoked the Section 1344(c) authority with regard to

a permit for the discharge of fill material related to

the Two Forks Dam and Reservoir project in Colorado.

The project would have filled in wetlands and riparian

habitats and flooded a gold medal trout fishery.24

A federal district court rejected a challenge to that

action. Alameda Water & Sanitation Dist. v. Reilly,

930 F. Supp. 486, 493 (D. Colo. 1996). In doing so, the

court acknowledged EPA’s findings that the project

“would

inundate

a

diverse

riverine

and

wetland/upland complex with extremely high

fisheries, wildlife and recreational values and a

conclusion that construction and operation of the dam

would have unacceptable adverse effects on fishery,

wildlife and recreation areas.” Id. at 489 (internal

quotation marks omitted). It also noted EPA’s

conclusion that the wetlands and other “resources

which would be lost were so valuable that the project’s

impacts, even factoring in the proposed mitigation,

were unacceptable.” Id. at 490.

This example illustrates the importance of EPA’s

expertise and focus on hydrologic connectivity and

why Congress vested the agency with extraordinary

24 EPA, Recommended Determination to Prohibit Construction of

Two Forks Dam and Reservoir Pursuant to Section 404(c) of the

Clean Water Act, (Mar. 1990), at 1-2, https://www.epa.gov/sites/

default/files/2015-05/documents/twoforksrd.pdf.

22

final decision-making authority over dredge and fill

permits.25

3.

Protection of the Intermittent

Waterway of the Los Angeles

River

The Los Angeles River “ordinarily carries only a

trickle of water and often looks more like a dry

roadway than a river. . . . Yet it periodically releases

water volumes so powerful and destructive that it has

been encased in concrete and steel over a length of

some 50 miles.” Rapanos, 547 at 769-70 (Kennedy, J.,

concurring in the judgment).

Riverbeds or streambeds like the Los Angeles

River that temporarily dry up are often “used by

aquatic organisms that are specially adapted to wet

and dry conditions . . . .”26 Consequently, such

temporary dry waterways still “can affect nutrient

dynamics of downstream waters due to microbial

activity, increased oxygen availability, and inputs of

terrestrial sources of organic matter and nutrients.”27

EPA has found they “provide the same ecological and

hydrological functions as perennial streams by

25 See also Administrative Authority to Construe [33 U.S.C. §

1344] Section 404 of the Federal Water Pollution Control Act, 43

Op. Att’y Gen. 197, 197-202 (1979).

26 EPA, Connectivity of Streams and Wetlands to Downstream

Waters: A Review and Synthesis of the Scientific Evidence (Jan.

2015), at 2-30.

27 Id.

23

moving water, nutrients, and sediment throughout

the watershed.”28

EPA has long recognized that such intermittent

waterways may be waters of the United States within

the meaning of the statute. For example, during the

tenure of Administrator Lisa P. Jackson, the Los

Angeles River was protected from discharges of

pollutants as a traditional navigable water.29 In

addition, the agency recognized the need for “the

wetlands and creeks that contribute to the River’s

health” to “have the protections of our nation’s clean

water laws.”30

The decision to designate the Los Angeles River

part of the waters of the United States involved

extensive collaboration between federal, state, and

local officials, making evidenced-based, scientific, and

case-specific judgments.

EPA detailed its

consideration of “a number of factors, including the

ability of the Los Angeles River under current

conditions of flow and depth to support navigation by

watercraft; the history of navigation by watercraft on

the river; the current commercial and recreational

uses of the river; and plans for future development

EPA, The Ecological and Hydrological Significance of

Ephemeral and Intermittent Streams in the Arid and Semi-arid

American Southwest (Nov. 2008).

28

See Administrator Lisa P. Jackson, Remarks at Compton

Creek Declaring the Los Angeles River Traditional Navigable

Waters, As Prepared (July 7, 2010).

29

30 Id.

24

and use of the river which may affect its potential for

commercial navigation.”31

The analysis was

supported by evidence and statistics compiled by the

United States Geological Survey, the Los Angeles

County Department of Public Works (LADPW), and

the City of Los Angeles, in addition to historical record

evidence, evidence submitted from the public and

even the experience of kayakers and canoeists who

navigated almost the entire 51-mile length of the river

during the dry-season of a drought year.32

In part because of those protections, the Los

Angeles river has made great strides towards

revitalization. In the years following its designation,

the Los Angeles River was included in the Urban

Waters Federal Partnership—a collaboration of 13

different federal agencies to improve the Nation’s

waters—which included ecosystem restoration

studies and the development of river-based

recreational opportunities.33 EPA has continued

working to restore the Los Angeles River to its natural

state,34 and the federal government commitment is

31 Letter from Jared Blumenfeld, EPA Region 9 Administrator,

Special Case Letter to District Engineer Colonel Mark Toy

(July 6, 2010).

32 United States Environmental Protection Agency Region IX,

Special Case Evaluation Regarding Status Of The Los Angeles

River, California, As A Traditional Navigable Water (July 1,

2010).

33 Urban Waters Federal Partnership, Partnership in Action, Los

Angeles River Watershed (May 2013), at 17-19.

34 EPA, Urban Waters Federal Partnership Works to Restore and

Increase Access to the

Los Angeles River

(Apr. 2014),

25

evidenced by the recent $28 million investment made

in the watershed as part of the Bipartisan

Infrastructure Law.35

The Clean Water Act’s protection for intermittent

waterways like the Los Angeles River would be

undermined, however, by Petitioners’ focus on

continuous surface connections. Unduly focusing on

the permanence of waterways would lead to the odd

result where, “the merest trickle, if continuous, would

count as a ‘water’ subject to federal regulation, while

torrents thundering at irregular intervals through

otherwise dry channels would not.” Rapanos, 547

U.S. at 769 (Kennedy, J., concurring in the judgment).

Such intermittent waterways will become more

common as droughts throughout the western United

States continue on their current trajectory.36 Recent

studies have “revealed widespread and primarily

https://www.epa.gov/sites/default/files/2014-05/documents/uwfactsheet-losangeles2014.pdf; see also EPA, Urban Waters

Partnership, Accomplishments: Los Angeles Urban Waters

Location (listing accomplishments along Los Angeles River),

https://www.epa.gov/urbanwaterspartners/accomplishmentslos-angeles-urban-waters-location.

35 Mayor Garcetti Celebrates $8 Million in Funding for the L.A.

River

Restoration

Project

(Jan.

19,

2022),

https://www.lamayor.org/mayor-garcetti-celebrates-8-millionfunding-la-river-restoration-project.

EPA, A Closer Look: Temperature and Drought in the

Southwest (noting that “since 1990. . . the Southwest has seen

some of the most persistent droughts on record”)

https://www.epa.gov/climate-indicators/southwest.

36

26

drying trends in stream intermittency” across the

continental United States.37 Petitioners’ approach

thus risks depriving the Los Angeles River, other

parts of the American West, and other intermittent

waterways of Clean Water Act protection.

II. ADOPTING PETITIONERS’ PROPOSAL WOULD

SIGNIFICANTLY

UNDERMINE

EPA’S

IMPLEMENTATION OF THE CLEAN WATER ACT.

A. Petitioners purport to provide “a clear and

definitive articulation of the Act’s scope,” but their

proposal would mean that the statute would protect

only wetlands that (1) have a continuous surfacewater connection to some other water and (2) only if

that water is a traditional navigable water or an

intrastate navigable water. Pet. Br. 5-6.

That two-step checklist has no footing in the

statutory text and is far afield from the longstanding

understanding of the statute by courts and agencies,

as demonstrated by their approach to its

implementation. “The 1972 Amendments to the

Federal Water Pollution Control Act were not merely

another law ‘touching interstate waters,’” but instead

“a total restructuring and complete rewriting of the

existing water pollution legislation.”

City of

Milwaukee, 451 U.S. at 317 (internal quotation marks

omitted).

Samuel C Zipper et al., Pervasive Changes in Stream

Intermittency across the United States, 16 Environ. Res. Lett.

084033 (2021), https://iopscience.iop.org/article/10.1088/17489326/ac14ec.

37

27

Far from effectuating the text of the statute,

Petitioners’ proposal ignores that Congress explicitly

defined “navigable waters” for purposes of the statute

to mean all “waters of the United States,” not only

those with a continuous connection or that are

traditionally navigable.

33 U.S.C. § 1362(7).

Petitioners insert words that Congress purposefully

wrote out of the federal statute on water pollution

control in 1972. In contrast to earlier versions such as

the Federal Water Pollution Control Act of 1948 that

were focused on the factors invoked by Petitioners—

navigability and a continuous channel of interstate

commerce—the 1972 Amendments specifically

included the broader definition of “navigable waters.”

Indeed, Congress used the term “interstate waters” in

a different provision of the Clean Water Act to refer to

prior water quality standards. 33 U.S.C. § 1313. And

the reference to “waters of the United States” also

contrasts directly with other statutes that are

explicitly limited to the “navigable waters of the

United States.” See, e.g., 16 U.S.C. § 817 (permitting

requirements for dams on “any of the navigable

waters of the United States”); 14 U.S.C. § 527

(authority to control vessels “in the navigable waters

of the United States”).

B. Petitioners’ approach would upend long-settled

expectations among thousands of entities that have

engaged in the permitting system for decades as

discussed above. Pet. Br. 5. And it would do so

without eliminating the need for case-by-case agency

determinations. Rather than provide the claimed

“rule that requires only ordinary visual observation

and thus one that any layman can readily and

accurately employ,” Pet. Br. 8, Petitioners would trade

28

an objective, scientific inquiry firmly within the

wheelhouse of EPA and the Corps (the significant

nexus determination of hydrological connections

between waterbodies), for a subjective, cartography

assignment.

Petitioners’ proposal presents flaws similar to

EPA’s 2019 NWPR. As EPA noted, the NWPR

introduced “new implementation uncertainties,

including its own case-specific typical year analysis

for most categories of jurisdictional waters.” 86 Fed.

Reg. 69,372, 69,405 (Dec. 7, 2021). In particular,

wetlands could meet the “adjacency test” for

protection as waters of the United States only “if they

[had] a surface water connection with other

jurisdictional waters once in a typical year.” 86 Fed.

Reg. at 69,410. But, “[i]dentifying the presence of a

surface water connection in a typical year can be

difficult and sometimes impossible, as such

connections are often not apparent from visual field

observation alone.” Id. In dry regions, or during dry

season, site visits are unlikely to capture a continuous

surface connection, nor are aerial photographs, which

are often taken just once per year or once every other

year. Id. Contrary to Petitioners’ theory, “ordinary

visual observation” would be plainly insufficient for

EPA to accurately determine the presence of a

continuous surface connection, much less “any

layman,” Pet. Br. 8; see also 86 Fed. Reg. at 69,410

(“Given the insufficiency of visual field observations to

assess the presence of a surface water connection . . .

agency staff must often expend substantial time and

resources” to make jurisdictional determinations.).

29

The administrative difficulties of Petitioners’

proposal would likely only get worse because the

notion of a “typical year” is ever changing. For

instance, in Houston, there have been five 500 year

flood events in the past 6-7 years.38 Similarly, in the

western United States, historic droughts are limiting

connections between historically intertwined water

bodies.39 The increasing prevalence of formerly

extraordinary climate and weather patterns makes it

difficult, if not impossible, to accurately gauge “typical

years.”

Petitioners’ proposed test, requiring a continuous

surface connection to a traditionally or intrastate

navigable water is nowhere to be found in the

statutory text and would run contrary to Congress’s

fundamental objective to “restore and maintain the

David Groves, How the Trump Administration Eased

Destruction of the Nation’s Wetlands and Streams, 51 Envtl. L.

Rep. (ELI) 10194, 10194-95 (2021) (“Setting aside that in a

rapidly changing climate—where Houston, Texas, has

experienced five 500-year flood events in the past six years—the

concept of a ‘typical year’ seems impracticable, many [Corps]

staff are now interpreting this new definition of adjacency to

mean that a wetland must lie within the 10-year floodplain of a

jurisdictional stream to be considered jurisdictional.”).

38

39 Jonathan T. Overpeck & Bradley Udall, Climate Change and

the Aridification of North America, 117 PNAS 11856, 11856-58

(2020) (noting a “shift in the hydrologic paradigm” with rising

temperatures and decreased flows in the Colorado River and Rio

Grande; Columbia River; rivers along the Sierra Nevada in

California; the northern Rocky Mountains and in the largest

river basin in the United States, the Missouri).

30

chemical, physical, and biological integrity of the

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

CONCLUSION

For the reasons set forth above, the judgment of

the court of appeals should be affirmed.

Respectfully submitted,

Beth S. Brinkmann

Counsel of Record

Gary S. Guzy

Thomas Brugato

Eric Chung

Martin Levy

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

(202) 662-6000

bbrinkmann@cov.com

June 17, 2022

Counsel for Amici

Curiae Former EPA

Administrators