Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJun 17, 2022
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No. 21-454
IN THE
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 AMICI CURIAE 167 U.S. MEMBERS
OF CONGRESS IN SUPPORT OF
RESPONDENTS
William W. Buzbee
GEORGETOWN UNIVERSITY
LAW CENTER
william.buzbee@law.
georgetown.edu
Sara A. Colangelo
Counsel of Record
Jack H.L. Whiteley
GEORGETOWN LAW
ENVIRONMENTAL LAW
& JUSTICE CLINIC
600 New Jersey Ave., NW
Washington, D.C. 20001
(202) 661-6543
sara.colangelo@law.
georgetown.edu
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION ........................................................ 2
SUMMARY OF ARGUMENT ..................................... 4
ARGUMENT ................................................................ 6
I.
The Clean Water Act’s text, structure, and
decision-making frameworks are focused on
water quality, and “waters of the United
States” must be understood in light of these
congressionally enumerated decisions ................. 6
A. Congress’s definition of waters must be read
in the Act’s linguistic and operational
context, which defeats any claim that the
law is focused only on shipping or the
channels of commerce ...................................... 6
B. Congress established express water quality
and functions-based criteria that govern
decision-making over discharges of dredged
or fill material .................................................. 8
C. Congress’s 1977 Amendments strengthened
wetlands protections, as reflected in this
Court’s unanimous decision in Riverside
Bayview ........................................................... 12
II. Congress already allocated authority between
the states and federal government in the Act,
so federalism concerns do not justify limiting
protected waters .................................................. 15
ii
A. The Act’s federalism text and structure
provide a clear delineation of federal and
state roles ....................................................... 16
B. The Act’s federalism text and structure
retain major state implementation roles to
further the Act’s environmental goals ........... 18
C. Congress established uniform national
protections in the Act that would be
undermined by proposed tests largely
eliminating protections in major parts of
the country ...................................................... 19
III. The links between pollution, commerce, and
waters’ functions easily satisfy the Commerce
Clause and render the constitutional
avoidance doctrine inapplicable ......................... 22
IV. The major questions doctrine, if it applies at
all, supports the Act’s longstanding reach ......... 26
V. The Act’s text refutes any claim jurisdiction is
automatically
severed
when
human
construction blocks a protected water ................ 29
CONCLUSION .......................................................... 33
APPENDIX ......................................................... App.1
iii
TABLE OF AUTHORITIES
Cases
Page(s)
Alabama Association of Realtors v. Dept. of
Health and Human Services,
141 S. Ct. 2485 (2021) .......................................... 27
American Hospital Ass’n v. Becerra, __ U.S.
__, __ (2022) (slip op.) ................................... 3, 6, 12
Bostock v. Clayton County,
140 S. Ct. 1731 (2020) ............................................ 3
BP P.L.C. v. Mayor and City Council of
Baltimore,
141 S. Ct. 1532 (2021) ............................................ 2
Chicago v. Fulton,
141 S. Ct. 585 (2021) ............................................ 11
County of Maui, Hawaii v. Hawaii Wildlife
Fund,
140 S. Ct. 1462 (2020) .......................................... 31
E. I. du Pont de Nemours & Co. v. Train,
420 U.S. 112 (1977) .............................................. 20
Environmental Defense v. Duke Energy
Corp.,
549 U.S. 561 (2007) .............................................. 12
EPA v. California ex rel. State Water Res.
Control Bd.,
426 U.S. 200 (1976) .............................................. 20
iv
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ........................................ 12, 27
Gonzales v. Oregon,
546 U.S. 243 (2006) .............................................. 18
Gonzalez v. Raich,
545 U.S. 1 (2005) .................................................. 24
Hodel v. Virginia Surface Mining and
Reclamation Ass’n, Inc.,
452 U.S. 264 (1981) .................................... 8, 21, 26
International Paper Co. v. Ouellette,
479 U.S. 481 (1987) ........................................ 17, 26
King v. Burwell,
576 U.S. 473 (2015) .............................................. 27
Milwaukee v. Illinois,
451 U.S. 304 (1981) .............................................. 26
Oklahoma ex rel. Phillips v. Guy F. Atkinson
Co.,
313 U.S. 508 (1941) .............................................. 26
Rapanos v. United States,
547 U.S. 2208 (2006) .....................................passim
Solid Waste Agency of Northern Cook
County v. Army Corps of Engineers,
531 U.S. 159 (2001) ................................................ 7
Southwest Airlines Co. v. Saxon,
__ U.S. __ (2022) (slip op.) .................................... 12
The Emily, 22 U.S. 381 (1824) .................................. 32
v
United States v. Appalachian Elec. Power
Co.,
311 U.S. 377 (1940) .......................................... 8, 26
United States v. Lopez,
514 U.S. 549 (1995) .............................................. 24
United States v. Riverside Bayview Homes,
474 U.S. 121 (1985) .......................................passim
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) .............................................. 12
Whitman v. American Trucking Ass’ns, Inc.,
531 U.S. 457 (2001) .............................................. 27
Statutes
Clean Water Act (the Act), 33 U.S.C. § 1251
et seq. ...................................................................... 1
33 U.S.C. § 1251(a) ........................................... 4, 21
33 U.S.C. § 1251(b) ............................................... 16
33 U.S.C. § 1251(g) ............................................... 18
33 U.S.C. § 1311(a) ................................................. 9
33 U.S.C. § 1311(b)(1) .......................................... 20
33 U.S.C. § 1311(b)(2)(A) ..................................... 20
33 U.S.C. § 1312 ................................................... 14
33 U.S.C. § 1313(c) ......................................... 11, 21
33 U.S.C. § 1314 ................................................... 21
33 U.S.C. § 1315 ................................................... 14
33 U.S.C. § 1316(b)(1)(A) ..................................... 20
33 U.S.C. § 1318 ................................................... 20
33 U.S.C. § 1319 ..................................................... 9
33 U.S.C. § 1323 ................................................... 17
vi
33 U.S.C. § 1341 ................................................... 17
33 U.S.C. §§ 1342(b)-(k) ....................................... 18
33 U.S.C. § 1343(c) ......................................... 10, 21
33 U.S.C. § 1344(a) ........................................... 9, 28
33 U.S.C. § 1344(b) ................................... 10, 11, 28
33 U.S.C. § 1344(c) ................................................. 9
33 U.S.C. § 1344(e) ........................................... 9, 19
33 U.S.C. § 1344(f)(1)(E) ...................................... 30
33 U.S.C. § 1344(f)(2) ........................................... 30
33 U.S.C. § 1344(g) ......................................... 13, 18
33 U.S.C. § 1344(t) ............................................... 17
33 U.S.C. § 1361(a) ............................................... 28
33 U.S.C. § 1362(7) ............................................. 2, 6
33 U.S.C. § 1365(e) ............................................... 17
33 U.S.C. § 1370 ............................................. 17, 20
Other Authorities
33 C.F.R. Part 230 ..................................................... 10
33 C.F.R. Part 328 ..................................................... 10
40 C.F.R. § 230.1(d) ................................................... 30
40 C.F.R. § 328.3(a)(1) ............................................... 31
40 C.F.R. § 328.3(a)(4) ............................................... 31
40 C.F.R. § 328.3(b) ................................................... 28
40 C.F.R. § 328.5........................................................ 30
40 Fed. Reg. 31320 (July 15, 1975) ........................... 28
42 Fed. Reg. 37 (July 19, 1977) ................................. 31
vii
Amy Coney Barrett, Substantive Canons
and Faithful Agency, 90 B.U. L. Rev. 109
(2010). ................................................................... 15
Earl E. Brown, Commerce on Early
American Waterways: The Transport of
Goods by Arks, Rafts and Log Drives
(2010) .................................................................... 23
William W. Buzbee, Asymmetrical
Regulation: Risk, Preemption, and the
Floor/Ceiling Distinction, 82 N.Y.U. L.
Rev. 1547 (2007) ..................................................... 4
EPA, Fish Consumption and Environmental
Justice: A Report Developed from the
National Environmental Justice Advisory
Council (2002) ...................................................... 21
EPA, Functions and Values of Wetlands,
EPA 843-F-01-002c (Mar. 2002) .................... 22, 25
EPA, Connectivity of Streams & Wetlands to
Downstream Waters: A Review and
Synthesis of the Scientific Evidence (Jan.
2015) ..................................................................... 25
William N. Eskridge, Dynamic Statutory
Interpretation (1994) .............................................. 3
Daniel C. Esty, Revitalizing Environmental
Federalism, 95 Mich. L. Rev. 570 (1996) ............. 21
viii
Robert W. Harrison, U.S. Army Engineer
Water Resources Support Center, The
United States Waterways and Ports: A
Chronology, Volume 1, 1541-1871 (1980) ............ 23
William J. Hull & Robert W. Hull, The
Origin and Development of the
Waterways Policy of the United States
(1967) .................................................................... 24
Robert J. Kapsch, The Potomac Canal:
George Washington and the Waterway
West (2007) ..................................................... 23, 24
John F. Manning, Federalism and the
Generality Problem in Constitutional
Interpretation, 122 Harv. L. Rev. 2003
(2009) .................................................................... 15
S. Mažeika, et al., Distorting science, putting
water at risk, 369 Science 766 (2000) .................. 21
Edith McCall, Conquering the Rivers: Henry
Miller Shreve and the Navigation of
America’s Inland Waterways (1984) .............. 22, 23
John Copeland Nagle, Newt Gingrich,
Dynamic Statutory Interpreter, 143 U.
Pa. L. Rev. 2209 (1995) .......................................... 3
Dave Owen, Regional Federal
Administration, 63 U.C.L.A. L. Rev. 58
(2016) .................................................................... 18
ix
John C. Pearson, The Fish and Fisheries of
Colonial Virginia, 22 Wm. & Mary Q.
213 (1942) ............................................................. 23
William W. Sapp, et al., From the Fields of
Runnymede to the Waters of the United
States: A Historical Review of the Clean
Water Act and the Term “Navigable
Waters,” 36 ELR 10190 (2006) ................... 7, 13, 25
Eric Tate et al., Flood exposure and social
vulnerability in the United States, 106
Nat. Hazards 435 (2021) ...................................... 21
The Federalist No. 78 (Alexander Hamilton) ............. 4
U.S. Army Corps of Eng’rs, U.S. EPA, U.S.
Fish and Wildlife Service, & U.S.D.A.
Soil Conservation Service, Federal
Manual for Identifying and Delineating
Jurisdictional Wetlands (1989) ........................... 31
U.S. Army Engineer Water Resources
Support Center, National Waterways
Study – A Framework for Decision
Making – Final Report (1983) .............................. 23
Marc. C. Van Putten & Bradley D. Jackson,
The Dilution of the Clean Water Act, 19
U. Mich. J.L. Reform 863, 871–72 (1986) ............ 20
1
INTEREST OF AMICI CURIAE 1
Amici Curiae are current and former members of
Congress committed to protection of this nation’s
varied waters through the Clean Water Act (the Act),
33 U.S.C. § 1251 et seq. Huge progress has been made
in protecting this nation’s waters, but polluting and
filling still threaten to destroy wetlands and other
waters that provide valuable services to fisheries,
wildlife, recreation, health, and drinking water. The
resolution of this matter could have a profound impact
on whether that progress is sustained. This brief
highlights the express choices Congress made in the
Act regarding what waters are protected, the roles
Congress assigned to the federal government and
states, and the Act’s explicit criteria to guide waters
protection based on each particular water’s setting
and functions. Of the current judicial tests for the Act’s
jurisdiction, the “significant nexus” test articulated by
Justice Anthony Kennedy in Rapanos v. United States,
547 U.S. 2208, 2236-52 (2006) (Kennedy, J. concurring
in the judgment), most closely respects these choices.
Amici also write to counter the atextual and
policy-driven arguments of Petitioners and their
allies. The Court should decline their pleas to rewrite
the Act and, through a jurisdiction-shrinking test,
supplant waters-specific assessments that, under the
Act, must be tested through the crucible of regulatory
proceedings. Amici urge this Court to respect the
1 Under this Court’s Rule 37.6, counsel for amici curiae
certify that this brief was not authored in whole or in part by
counsel for any party and that no person or entity other than
amici curiae or its counsel made a monetary contribution to the
preparation of submission of this brief. The parties have
consented to its filing.
2
policies in the statute Congress enacted and
jurisdictional boundaries that have governed,
regardless of party control of the White House or
Congress, for almost fifty years. 2
INTRODUCTION
The Supreme Court focused this case on a specific
question, asking “the proper test for determining
whether wetlands are ‘waters of the United States’
under the Clean Water Act, 33 U.S.C. § 1362(7).”
Amici members of Congress focus on the answers the
statute provides. Congress in the Act did not ask
litigants to substitute their policy preferences in this
science-intensive area. Nor can courts remake statutes
with a judicial “thumb on the scale,” but must give
statutes a “fair reading.” BP P.L.C. v. Mayor and City
Council of Baltimore, 141 S. Ct. 1532, 1538-39 (2021)
(citations omitted).
Congress crafted a detailed Act, guiding the U.S.
Army Corps of Engineers (the Army Corps), the U.S.
Environmental Protection Agency (EPA) (collectively
the Agencies), and later reviewing courts when a
particular controversy and record come before them. 3
Specifically, Congress defined what it wanted
protected (“the waters of the United States”), how it
wanted that protection provided (express pollution
prohibitions and water quality and science-based
criteria aimed at preventing waters’ degradation), and
who should implement those protections (the Agencies
and the States). It also made a nuanced set of
The Administration of Donald J. Trump is the only
administration to have sought a major weakening of the Act.
3 Amici leave to others questions about finality, ripeness,
or standing for the Petitioners in this case.
2
3
federalism-linked choices about federal and state
roles.
No one-size-fits-all test should displace what
Congress enacted. But that is what Petitioners and
their amici propose. They cherry-pick snippets of
statutory language or history they prefer, impose
inapplicable interpretative canons and clear
statement requirements, add language that is not in
the statute, and tell tales of regulatory overreach that
lack any record support. Petitioners sidestep the Act’s
text and structure, especially the two provisions that
most directly provide the criteria responsive to this
Court’s question. They downplay the Act’s many
provisions that specify environmental, health, and
science-driven criteria for decision-making to prevent
degradation of waters’ functions and quality. And they
dodge the Act’s key provisions that set forth pervasive
antipollution mandates and make clear federalism
choices that must be respected. They ignore the
“careful congressional focus” and express “goal[s]” and
“detailed” “means” to achieve them “la[id] out”
through the Act’s “text and structure.” American
Hospital Ass’n v. Becerra, __U.S. __, __ (2022) (slip op.
at 2, 8-10). Petitioners’ policy preference-driven
arguments cannot erase the Act’s text. Bostock v.
Clayton County, 140 S. Ct. 1731, 1737 (2020) (stating
“[w]hen the express terms of a statute give us one
answer and extratextual considerations suggest
another, it’s no contest. Only the written word is the
law”); John Copeland Nagle, Newt Gingrich, Dynamic
Statutory Interpreter, 143 U. Pa. L. Rev. 2209, 2240-50
(1995) (reviewing William N. Eskridge, Dynamic
Statutory Interpretation (1994)) (arguing for statutory
text’s primacy to avoid “the antithesis of the rule of
law” where interpreters, including judges, “‘substitute
4
their own pleasure to the constitutional intentions of
the legislature’”) (quoting The Federalist No. 78
(Alexander Hamilton)).
SUMMARY OF ARGUMENT
The Act’s text and structure answer the Court’s
question. The Act sets forth mandates and criteria
that unmask Petitioners’ requests as legally
untenable, atextual policy preferences. The Act’s
pervasive antipollution mandates aim to fulfill three
specified “integrity” goals: “to restore and maintain
the chemical, physical, and biological integrity of the
Nation’s waters.”
33 U.S.C. § 1251(a). Other
provisions set forth criteria regulators must assess
and that govern decision-making under the Act. The
Act charges EPA and the Army Corps with
responsibility for rendering these types of
scientifically driven judgments, both in devising
general regulations and later in assessing permit
applications for industrial pollution discharges or for
dredge or fill disposals.
The Act is also a strongly federalizing law, setting
ambitious antipollution and antidegradation goals.
Congress set protective minimum federal floors, while
allowing states to do more to protect their waters and
citizens, to govern water allocations, and to operate
permit programs under cooperative federalism
structures. The Act’s balanced federalism choices are
not now up for revision. William W. Buzbee,
Asymmetrical Regulation: Risk, Preemption, and the
Floor/Ceiling Distinction, 82 N.Y.U. L. Rev. 1547
(2007) (exploring forms of statutory federal-state
power allocations and implications of regulatory
floors).
5
The national protections of the Act also drive
home why any test requiring continuous flow or
surface connections for federal jurisdiction, as
Petitioners and their allies prefer, would radically
revise the Act. No “proper test” can be true to the Act
yet abruptly judicially unprotect vast regions of the
country. The Act is a uniform national law, applicable
not only in the eastern United States, where flowing
and surface-connected waters are common, but also in
the states of the arid west and southwest, where even
more precious and desperately needed waters rarely
fit this description.
In addition, because the Act and the setting of the
Sacketts’ grievances easily satisfy any possible
constitutional test for federal power, no judicial
redrafting under the auspices of constitutional
avoidance is appropriate. Commerce linkages between
polluting activities, the nation’s varied waters and
their functions are many. Furthermore, the Agencies’
powers here are expressly stated and longstanding; no
abrupt policy change is at issue that would trigger this
Court’s “major questions” canon. Instead, the Army
Corps and EPA engaged in the ordinary work that the
Act asks of them, as they have done since the 1970s.
This brief also addresses one additional point. It
counters the unprecedented contention of Petitioners
and their allies that federal jurisdiction is
automatically lost if a water is blocked at the surface
by a road or houses. The Act clearly refutes such a
claim.
The congressional Amici urge the Court, in its
deliberations over the “proper test” for federal
wetlands jurisdiction, to respect the Act’s text and
allow the Agencies to continue to do their
6
congressionally assigned, science-intensive work, as
they have done for over fifteen years with the overlay
of Justice Kennedy’s Rapanos “significant nexus”
framework. The text- and structure-rooted “significant
nexus” formulation respects the Act’s operative
criteria, the Act’s federalism choices, and regulators’
science-intensive roles, all aimed at preventing
pollution harms to our nation’s valuable waters.
ARGUMENT
I.
The Clean Water Act’s text, structure, and
decision-making frameworks are focused
on water quality, and “waters of the
United States” must be understood in
light of these congressionally enumerated
decisions
The Act’s key provisions govern what waters are
protected, set forth criteria for when and why waters
are to be protected from dredge or fill disposals, and
assign expert regulators’ roles. The Court should
decline Petitioners’ invitation to ignore these clear
congressionally enacted mandates. Their policy
preferences cannot “override the text of the statute”
and “this Court is not the forum to resolve [their]
policy debate.” American Hospital, slip op. at 8, 13.
A. Congress’s definition of waters must be read in
the Act’s linguistic and operational context,
which defeats any claim that the law is focused
only on shipping or the channels of commerce
Congress in 1972 added its crucial definition for
“navigable waters,” defining them as “the waters of the
United States.” 33 U.S.C. § 1362(7). This was an
expansive definition that went beyond law developed
7
under the earlier Rivers and Harbors Act of 1899.
William W. Sapp, et al., From the Fields of Runnymede
to the Waters of the United States: A Historical Review
of the Clean Water Act and the Term “Navigable
Waters,” 36 ELR 10190, 10195-96, 10200-03 (2006).
The Act’s words, implementation history, and most
case law for nearly fifty years concurred that the Act’s
language extends protection of waters to the extent
authorized under the Constitution. Id. (citing a
conference report and court opinions characterizing
the 1972 Act’s protections as intended to “be given the
broadest possible constitutional interpretation”). The
Supreme Court partly cut back on this reach in Solid
Waste Agency of Northern Cook County v. Army Corps
of Engineers, 531 U.S. 159, 174 (2001) (SWANCC),
giving the word “navigable” weight to reject federal
jurisdiction over an isolated pond based on use by
migratory birds.
Despite recent years’ conflicts over waters
jurisdiction, this Court has never deviated from its
correct conclusion that the Act’s protections extend
beyond a mere focus on “navigable-in-fact” waters
used for large-scale shipping, barges and the like.
United States v. Riverside Bayview Homes, 474 U.S.
121, 124-25 (1985) (unanimously upholding
jurisdiction for adjacent “low-lying, marshy land”
although not navigable “under a classic understanding
of that term” and not “inundated” with water);
SWANCC, 531 U.S. at 167-71 (stating that conclusion
but declining “next step”); Rapanos, 547 U.S. at 731
(plurality op.) (Scalia, J.) (agreeing waters protected
are “broader than the traditional understanding of
that term” but advocating shrinking jurisdiction); id.
at 759-62, 768 (Kennedy, J., concurring in the
judgment) (agreeing “Congress intended a broader
8
meaning for navigable waters” than just those used for
“interstate commerce”). The four Rapanos dissenters
agreed that the Act extends jurisdiction beyond
navigable-in-fact waters. Id. at 788, 807 (Stevens, J.
dissenting, joined by Justices Souter, Ginsburg, and
Breyer).
That the Act’s protections extend beyond a mere
focus on shipping-like uses of waters, but primarily to
regulate polluting activities that impair waters’
quality and functions, is clear in the statute and also
well within congressional power. It has long been
settled that federal Commerce Clause power over the
nation’s waters does not only concern their use as
channels of commerce. United States v. Appalachian
Elec. Power Co., 311 U.S. 377, 426 (1940) (concluding
“the authority of the United States is the regulation of
commerce on its waters. Navigability . . . is but a part
of this whole”) (emphasis added); see also Hodel v.
Virginia Surface Mining and Reclamation Ass’n, Inc.,
452 U.S. 264, 276-83 (1981) (upholding federal
regulation of surface mines due to commerce-related
environmental
harms,
polluters’
commerce
connections, benefits of clean environment, and goal of
preventing harmful interjurisdictional competition
degrading environment). See infra Part III (reviewing
constitutional grounds for the Act).
B. Congress established express water quality and
functions-based criteria that govern decisionmaking over discharges of dredged or fill
material
The
Court’s
framed
question
requires
engagement with the Act’s criteria for determining
“waters” protection in the wetlands setting. The 1972
Act focuses on environmental effects and waters’
9
functions, setting forth strong criteria to prevent
degradation of wetlands’ quality and functions.
Furthermore, the 1977 amendments reaffirmed and
strengthened the Act’s wetlands protections, as this
Court has unanimously recognized. Riverside
Bayview, 474 U.S. at 135-39 (concluding 1977
language “reflects congressional recognition that
wetlands are a concern” of the Act).
Wetlands protection is shaped by Section 404 and
its strong strictures on any disposal of dredge or fill
materials in waters, as determined in light of
particular waters’ functions. 4 Congress’s detailed
environmental antidegradation criteria are both in
Section 404 and its key cross-reference to Section
403(c). See 33 U.S.C. §§ 1344(a) (stating permit
requirements and process), 1344(c) (authorizing EPA
to “prohibit” a discharge with “unacceptable adverse
effect” on “water supplies, shellfish beds, and fishery
areas (including spawning and breeding areas),
wildlife, or recreational areas”), 1344(e) (providing
“general permit” option for “categor[ies] of activities”
with “minimal cumulative adverse effect on the
environment”).
Section 404’s most detailed criteria for wetlands
protection are through its cross-reference to Section
403(c). In these provisions, Congress instructs EPA,
“in conjunction” with the Army Corps, to develop
“guidelines” for protection of dredge or fill “disposal
Industrial pollution effluents and oil spills could be
discharged into wetlands, and hence could implicate both the
Act’s industrial discharge and oil spill provisions. Pollution
discharges of either type are prohibited unless allowed by a
permit. 33 U.S.C. §§ 1311(a) (setting forth permit requirement),
1319 (making unpermitted discharges illegal).
4
10
sites” regulated under Section 404 “based upon
criteria comparable to” those set forth in Section 403(c)
to prevent harms from ocean discharges. 33 U.S.C.
§ 1344(b). Section 404 thus incorporates by reference
Section 403(c)’s protective criteria. These linked
provisions have provided the backbone for decades of
regulations
and
adjudicatory
determinations
protecting wetlands. 33 C.F.R. Part 328 (regulations
providing “Definition of Waters of the United States”);
33 C.F.R. Part 230 (regulations setting forth
guidelines for assessing dredge or fill disposal). 5
Section 404 and its Section 403(c) cross-reference
must shape the “proper test” for wetlands waters’
protection. This provision focuses on preventing
“degradation” from pollution discharges that would
cause environmental harm or impair “human health”
or “welfare.” 33 U.S.C. § 1343(c)(1)(A). Subsection A
mandates a protective water quality and functions
focus, requiring regulation of “disposal of pollutants”
that would cause “degradation” to, inter alia,
“plankton, fish, shellfish, wildlife.” Id. Subsection B
prioritizes safeguarding of “biological, physical, and
chemical processes,” and “ecosystem diversity,
productivity, and stability.” 33 U.S.C. § 1343(c)(1)(B).
Subsection C protects “esthetic, recreation, and
economic values.” 33 U.S.C. § 1343(c)(1)(C). And
subsection F prohibits filling if there is a “land-based
alternative.” 33 U.S.C. § 1343(c)(1)(F). Section
403(c)(2) also emphasizes the science-based judgments
Unless otherwise indicated, citations to the C.F.R. are to
pre-2015 regulations. For a review of subsequent regulatory
actions and judicial responses that have left pre-2015 law most
relevant, see Brief for the Respondents at 12-13, Sackett v. EPA,
No. 21-454 (June 10, 2022) (reviewing this history).
5
11
required: if there is “insufficient information” to make
a judgment about effects under the required
guidelines, “no permit shall be issued.”
Further, Section 404 is explicit that it is not just
about protecting waters for navigation or ship-linked
uses; that is an “addition[al]” concern. Petitioners
tellingly fail to cite or engage this provision. After
specifying environmental criteria and anti-fill
presumptions, Section 404 adds that regulators can
“additionally” take into account “navigation and
anchorage” concerns. 33 U.S.C. § 1344(b) (emphasis
added). That key word is no surplusage, but central
to—or, more accurately, devastating to—the claims of
Petitioners and their allies. Chicago v. Fulton, 141 S.
Ct. 585, 591 (2021) (rejecting a reading that would
“render the central command” of a term
“superfluous”). The Act’s water quality provisions
similarly state that navigation is a secondary
“consideration.” See also 33 U.S.C. § 1313(c)(2)(A)
(after listing environmental, health, and welfare
factors for water quality-based regulation, adding
“and also taking into consideration their use and value
for navigation”) (emphasis added).
Against this statutory evidence, Petitioners and
their allies offer arguments built through a series of
atextual assertions that ignore the statute Congress
enacted. They supply new language or policies wholly
absent from the Act. Most importantly, they take the
word “waters” and detach it from both the conduct
targeted in the statute—dredge or fill disposals and
other pollution discharges—and the water quality and
functions-focused criteria Congress spelled out to
guide waters’ assessments. Such arguments, divorced
from the Act’s operative terms and “overall structure,”
12
ultimately “make little sense.” American Hospital, slip
op. at 11.
The Act does not have some vague focus on water,
but provides lengthy, reticulated criteria for when and
why waters should be protected from degradation from
pollution. As this Court has repeatedly emphasized,
“‘the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.’” Utility Air Regulatory Group v. EPA, 573
U.S. 302, 320 (2014) (UARG) (quoting FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133
(2000)). Words “take on distinct characters from
association with distinct statutory objects calling for
different implementation strategies.” Environmental
Defense v. Duke Energy Corp., 549 U.S. 561, 574
(2007). To “discern that ordinary meaning, those
words must be read and interpreted in their context,
not in isolation.” Southwest Airlines Co. v. Saxon, __
U.S. __, __ (2022) (slip op., at 3) (citations omitted).
Congress regulates discharges into waters to
protect them for their functions explicitly spelled out
in the Act. Those enacted policies must be respected.
And Justice Kennedy’s “significant nexus” test,
discussed below, closely tracks both the statute’s
criteria
and
its
longstanding
implementing
regulations.
C. Congress’s 1977 Amendments strengthened
wetlands protections, as reflected in this Court’s
unanimous decision in Riverside Bayview
The 1977 addition of Section 404(g) provided a
new cooperative or delegated program option for
Section 404 permitting that confirmed wetlands are
protected by the Act. This 1977 delegated program
amendment contains a carveout that preserves federal
13
power over “navigable waters” used “as a means to
transport interstate or foreign commerce,” as well as
“including wetlands adjacent thereto.” 33 U.S.C.
§ 1344(g). The implications of the structure of these
linked provisions are clear: First, wetlands are
expressly covered by the Act. Second, when the federal
government delegates states primacy with Section 404
work, it must be over something other than traditional
navigable-in-fact waters and their “adjacent
wetlands.” What would be left? All other waters that,
through pollution, would be “degrad[ed]” in the ways
that this section focuses on: dredge or fill disposals
that convert wetlands to land—as the Sacketts were
doing, J.A. 10-15, 18, 20, 22-23—or that block or fill
other smaller water categories such as tributaries.
This express 1977 inclusion of “wetlands” in the
Act’s text proves the error of Petitioners’ and their
allies’ focus on large bodies of water and their
insistence that the Act only protects waters that are
channels of commerce. The unanimous Riverside
Bayview case upheld jurisdiction for waters much like
those at issue with the Sacketts due substantially to
the 1977 amendments. Riverside Bayview, 474 U.S. at
129-39 (not requiring “inundation” for “low-lying,
marshy” wetlands and concluding the 1977
amendments strengthened the Army Corps’ authority
to protect wetlands as “‘implementing congressional
policy’”) (citation omitted).
Even those who
unsuccessfully tried to narrow the Act’s wetlands
coverage in 1977 saw the Act as protecting wetlands.
Id. at 136-37 (reviewing this history).
Other
amendments were enacted, but the Act’s jurisdictional
waters language and protective criteria emerged
untouched. See Sapp, supra 7, at 10209-12 (tracing
language defeated, added, and retained).
14
Thus, in Section 404, Congress regulated
pollution to preserve waters’ integrity and functions.
The same is true of the Act’s water quality provisions;
they too focus on effects and functions. See, e.g., 33
U.S.C.
§§
1312-15
(setting
forth
health,
environmental, and recreational criteria for water
quality-based regulation). The Act is not focused on
shipping, or only on waters as channels, or only on
interstate movements. The text is clear and
demolishes such claims.
Among current judicially framed “waters” tests,
Justice Kennedy’s Rapanos “significant nexus”
language implements these statutory criteria, meshes
with longstanding regulations, and recognizes the
expert science-intensive work agencies must do in
assessing particular sites and types of waters. It
focuses on the functions of wetlands waters, especially
the ways wetlands “filter and purify” water and reduce
pollution flows, harms, and flooding, sometimes even
due to “the absence of an interchange of waters.”
Rapanos, 547 U.S. at 775-78 (Kennedy, J., concurring
in the judgment). For this reason, the Rapanos
dissenters agreed with protecting “significant nexus”
waters, creating a numerical majority. Rapanos, 547
U.S. at 808-09 (Stevens, J. dissenting, joined by
Justices Souter, Ginsburg, and Breyer) (explaining
how Court majorities voted to protect both “significant
nexus” waters and the less protective but differently
framed plurality waters).
Justice Scalia’s plurality limitation language
argued for confining the Act’s protections to
permanently flowing and surface-connected waters.
This argument, built heavily on dictionary parsing of
the word “waters,” was rejected by five justices.
15
Despite Justice Scalia’s longstanding advocacy of
textualism as a means to constrain judicial overreach
and error, his plurality opinion oddly fails to quote or
address Congress’s statutory text criteria just
reviewed. Moreover, the predictable effect of the Scalia
plurality test, mostly resulting from its atextual
methodology, would be to exclude much of the arid
west and southwest from the Act’s protection. As the
federalism discussion below establishes, nothing in
the Act supports a test that would leave the nation’s
most precious and scarce waters least protected. It
would contravene the law enacted by Congress.
II.
Congress already allocated authority
between
the
states
and
federal
government in the Act, so federalism
concerns do not justify limiting protected
waters
The 1972 Act and 1977 amendments enacted a
powerful federal law creating a uniform baseline of
protections, yet also provided an unusually large and
varied set of federalism provisions. The detail and
variety of these federalism choices render any judicial
redrawing of the Act’s federalism choices
inappropriate. See Amy Coney Barrett, Substantive
Canons and Faithful Agency, 90 B.U. L. Rev. 109, 178
(2010) (“[S]tatutory alterations made in the name of
undifferentiated social values risk undoing the
legislative bargain.”); John F. Manning, Federalism
and the Generality Problem in Constitutional
Interpretation, 122 Harv. L. Rev. 2003, 2008 (2009)
(“When judges enforce freestanding ‘federalism,’ they
ignore the . . . bargains and tradeoffs that made their
way into the document.”).
16
A. The Act’s federalism text and structure
provide a clear delineation of federal and
state roles
States’ important roles under the Act function
within an array of delineated federalism choices that
must be respected. These provisions reflect the
following congressional choices: National protections
of the country’s waters, through strong antipollution
mandates, are not up for negotiation. States are
welcome to do more, to retain their water allocation
primacy, and to remain the main land use regulators
if not contravening the Act. They are also welcome to
assume implementation primacy under cooperative
delegated program structures much like those offered
under most federal environmental laws.
Petitioners rely heavily on an opening purpose
provision of the Act, Section 101(b). It does indeed
affirm the ongoing importance of state environmental
protection efforts. It does not, however, undo the rest
of the Act, supplant more specific federalism
allocations, or override the statute’s operative
provisions focused on waters’ quality and functions. In
the language Petitioners most emphasize, this
provision states it is congressional “policy” to
“recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce,
and eliminate pollution, [and] to plan the development
and use (including restoration, preservation, and
enhancement) of land and water resources.” The
purpose of state involvement is hence to “prevent,
reduce, and eliminate pollution,” not to authorize it. 33
U.S.C. § 1251(b) (emphasis added).
That state and local governments are the chief
regulators of land use remains true. Land use forms
17
and infrastructure investments, for example, remain
within state and local judgment. It is where
construction or other development leads to pollution or
filling of protected waters that the Act’s mandates and
permit provisions kick in. Accordingly, complementary
and intertwined state and federal efforts are
welcomed, with waters protection the shared end.
Other more specific federalism allocations
confirm the complementary antipollution roles
Congress envisioned. Importantly, like most federal
environmental laws, the Act clearly authorizes states
to be more stringent or act in additional ways to
protect their waters. Two provisions govern here.
Aligned with the general declarations of Section
101(b), Section 505(e) preserves state common law
protections alongside federal law. Additional
protection through state regulation is also authorized,
as long as it is not “less stringent” than federal
requirements, see 33 U.S.C. §§ 1365(e), 1370, as this
Court has confirmed. International Paper Co.
v. Ouellette, 479 U.S. 481, 497-500 (1987) (recognizing
the ability of states where pollution originates to
impose nuisance liability and regulate more
stringently than federally required).
The Act also authorizes additional state waters
protections even if in tension with federal
authorizations. See 33 U.S.C. § 1341 (providing state
certification process linked to water quality
obligations for federally licensed or permitted actions).
Section 404 similarly contains its own dredge or fillspecific savings clause that can constrain federal
activities. 33 U.S.C. § 1344(t). Likewise, Section 313
compels federal land and facilities managers to comply
with state water-quality protections. 33 U.S.C. § 1323.
18
Importantly for western regions often experiencing
water scarcity and other jurisdictions protecting or
regulating water allocations, Section 101(g) preserves
states’ authority over “allocat[ion] of quantities of
water.” 33 U.S.C. § 1251(g).
These express choices about federal requirements
alongside realms of preserved state authority counsel
against judicial rebalancing of the Act’s federalism
choices. See Gonzales v. Oregon, 546 U.S. 243, 270
(2006) (assessing “structure and operation” of statute
in light of federalism to reject Attorney General claim
of power contrary to statutory power allocations to
specified federal actors and states).
B. The Act’s federalism text and structure retain
major state implementation roles to further the
Act’s environmental goals
The Act’s opening declarations also indicate how
the Act welcomes state involvement either through
participation in federal proceedings, see 33 U.S.C.
§ 1251 (b) (mentioning state “consult[ation]” with the
Agencies), or by offering states delegated program
cooperative federalism options. See 33 U.S.C.
§§ 1342(b)-(k) (setting forth terms of industrial
discharge permitting delegated program option), §§
1344(g)-(k) (setting forth delegated program terms for
dredge or fill permitting). And because most states
regulate through a mix of their own laws, under
delegated program structures, or to meet federal
requirements, any judicial redrawing of federal Act
jurisdiction through this case could create legal chaos.
It could also disrupt varied ways states and federal
regulators, often through federal regional offices, long
ago worked out pragmatic modes of interaction. See
19
Dave Owen, Regional Federal Administration, 63
U.C.L.A. L. Rev. 58, 98-99, 115 (2016).
Petitioners and their allies also fail to
acknowledge a key option that answers many
questions about the Act’s practical application under
different scenarios. The Act authorizes “general”
“nationwide” permits for categories of activity unlikely
to cause cumulatively harmful effects. See 33 U.S.C.
§ 1344(e). Such categorical treatment resolves many
questions expeditiously and facilitates balancing of
private and state choices about commercial activity
involving dredge or fill disposal in waters with the
Act’s protective mandates. Indeed, the Sacketts were
encouraged to investigate a nationwide general permit
option. J.A. 10, 12.
C. Congress
established
uniform
national
protections in the Act that would be undermined
by proposed tests largely eliminating protections
in major parts of the country
The federalism choices and logic of the Act also
provide a crucial lens for seeing why the Petitioners’
preferred test for wetlands “waters” jurisdiction is
legally untenable. No “proper test” for wetlands
jurisdiction can destroy the Act’s national uniform
baseline protections by writing off arid states or
excluding other states, areas, or communities from the
Act’s protections. No Court majority has ever
supported the Petitioners’ view that the Act
encompasses only “permanent” or “continuous surface
connection” waters, and for good reason. Such a test
would controvert the Act’s express national safeguards
for water protection.
The Act is replete with provisions setting uniform
baseline standards, guidelines, and procedures for
20
waters assessments and pollution control. 6 Sitespecific assessments, including water protections
calibrated to a water’s uses, are part of the federalism
logic of the Act. For example, the mandated Section
404 regulations crafted with reference to Section
403(c) are uniform national standards focused on
dredge or fill activities’ effects on waters’ varied types
and functions. See supra, Part I. Similarly, industrial
discharge “effluent limitations” are set uniformly,
under Sections 301 and 306, by industrial categories,
for all “point sources” discharging pollutants, with
more stringent requirements set for “new sources,” 33
U.S.C. §§ 1311(b)(2)(A), 1316(b)(1)(A), or if a water
remains impaired. 33 U.S.C. § 1311(b)(1)(C). This
Court recognized such categorical regulation as
necessary to serve the Act’s goal of “national
uniformity.” E. I. du Pont de Nemours & Co. v. Train,
420 U.S. 112, 129, 138 (1977).
The national uniformity goal arose to correct past
deficiencies in waters protection. This Court identified
the pre-1972 Act as flawed due to its “focus[] on the
tolerable effects rather than the preventable causes of
water pollution” and “the awkwardly shared federal
and state responsibility for promulgating such
standards.” EPA v. California ex rel. State Water Res.
Control Bd., 426 U.S. 200, 202–203 (1976). 7
Accordingly, lawmakers designed the Act to impose
6 See, e.g., 33 U.S.C. §§ 1318 (preserving state monitoring
and enforcement authority if applicable “at least [to] the same
extent” as required by the Act), 1370 (allowing additional “not
less stringent” state regulation).
7 See also Marc. C. Van Putten & Bradley D. Jackson, The
Dilution of the Clean Water Act, 19 U. Mich. J.L. Reform 863, 871–
72 (1986) (discussing state strategies prior to 1972 to entice
industry).
21
uniform regulatory requirements. See Daniel C. Esty,
Revitalizing Environmental Federalism, 95 Mich. L.
Rev. 570, 601–02 (1996) (reviewing rationales for
strengthened federal regulation); accord Hodel, 452
U.S. at 281-82 (noting uniform mining regulation was
“essential” to prevent “destructive interstate
competition”
undermining
environmental
protections).
Petitioners’ advocated test is contrary to
Congress’s nationally uniform Act design. Such a test
would imperil scarce water resources where most
needed and the communities that depend on water
quality and functions for their health and welfare. 8
Wetlands in the arid and semi-arid southwest, for
example, would be left substantially less protected
under such a regime. See, e.g., S. Mažeika, et al.,
Distorting science, putting water at risk, 369 Science
8 Health risks are prioritized throughout the Act. See, e.g.,
33 U.S.C. §§ 1251(a) (integrity goals), 1251(a)(3) (prohibition of
toxic discharges as “national policy”), 1313(c) (“public health”
requirement for water quality standards), 1314(l) (requiring
toxics pollution regulation to “assure protection of public health”
and “recreational activities”), 1343(c) (in provision incorporated
by reference in Section 404, stating guidelines must address
“human health or welfare,” “recreation,” and effects on “fish”).
Low-income populations, tribes, and other communities of color
with high rates of fish consumption would be especially
endangered by newly unregulated pollution discharges that
would cause fish contamination. See, e.g., EPA, Fish
Consumption and Environmental Justice: A Report Developed
from the National Environmental Justice Advisory Council, 2
(2002). Likewise, loss of flood protection functions of wetlands
would endanger these same populations because their residences
are disproportionately concentrated in flood prone areas. See, e.g.,
Eric Tate et al., Flood exposure and social vulnerability in the
United States, 106 Nat. Hazards 435 (2021) (finding communities
of color overrepresented in flood-prone areas).
22
766, 767 (2000) (in critique of Trump administration
regulation based substantially upon the Rapanos
plurality, reporting that “preliminary analysis
predicts wide-spread losses of wetland functions,”
especially “in arid and semi-arid regions”) (citations
omitted).
Preservation of wetlands and their associated
flood mitigation functions, as well as prioritization of
“human health” effects, are thus uniform baseline
policy enacted into law by Congress. 9 No test for
waters jurisdiction can eliminate protection for vast
regions of the country and conform to the national
reach of the Act.
III.
The links between pollution, commerce,
and waters’ functions easily satisfy the
Commerce Clause and render the
constitutional
avoidance
doctrine
inapplicable
Petitioners’ allies also argue that the Court should
shrink jurisdiction to avoid alleged constitutional
questions about federal Commerce Clause authority.
But the Act’s commerce linkages, waters’ many
commercial functions, Court precedents, and the very
facts of the Sacketts’ site and work leave no question
about federal authority.
Pervasive waters and commerce linkages have
endured for centuries and would have been obvious to
the Constitution’s Framers. During the founding era,
9 See EPA, Functions and Values of Wetlands, EPA 843-F-
01-002c at 1 (Mar. 2002) (noting that wetlands reduce flood risk).
23
waterways were essential to economic development. 10
Rivers and their tributaries, some so tiny and
temporary that no one would try to navigate them
today, provided the best, and sometimes the only,
routes for transporting lumber, wheat, furs, and other
goods from westward settlements to coastal cities and
foreign markets. 11 Mountain streams powered mills
for grinding grain and sawing lumber, 12 and wetlands
provided habitats for fish and wildlife critical to
settlers’ livelihoods. 13 Waterways large and small
supported
technological
innovation,
diverse
industries, and westward expansion. Rivers and
creeks were “highways” to the frontier, where
exploration along tributaries and streams uncovered
valuable natural resources, encouraging further
settlement beyond the Appalachian Mountains. 14
10 See, e.g., Edith McCall, Conquering the Rivers: Henry
Miller Shreve and the Navigation of America’s Inland Waterways
1 (1984); U.S. Army Engineer Water Resources Support Center,
National Waterways Study – A Framework for Decision Making
– Final Report III-35 (1983); Robert W. Harrison, U.S. Army
Engineer Water Resources Support Center, The United States
Waterways and Ports: A Chronology, Volume 1, 1541-1871 1
(1980).
11 Earl E. Brown, Commerce on Early American Waterways:
The Transport of Goods by Arks, Rafts and Log Drives 44-45
(2010) (discussing settlers’ shipment of products down rivers and
creeks to markets); Robert J. Kapsch, The Potomac Canal:
George Washington and the Waterway West 23 (2007).
12 See, e.g., Brown, supra note 11, at 8; Kapsch, supra note
11, at 23.
13 See, e.g., McCall, supra note 10, at 17; John C. Pearson,
The Fish and Fisheries of Colonial Virginia, 22 Wm. & Mary Q.
213, 216 (1942) (describing settlers’ dependence on fish in
seventeenth century Virginia).
14 Brown, supra note 11, at 7 (2010) (describing early
colonists’ commerce-linked uses of “canoes on the rivers and
creeks like we use highways today.”).
24
Most critical, waterways inspired national unity in the
aftermath of the Revolution—connecting western
territories and coastal cities not only geographically
but also socially, economically, and politically. 15 The
Framers thus recognized the need for interstate
cooperation and federal oversight to realize the
benefits of the nation’s waters. 16
Commerce Clause jurisprudence reflects these
many rationales for protecting the nation’s waters.
Rivers, tributaries, and wetlands are crucial to
commerce, are often harmed by commercial activities,
and through their protection improve the nation’s
health, environment, recreation, and associated
commerce. Sometimes their role is as “channels” or
“instrumentalities” of commerce, and sometimes they
are subject to federal protection due to “activities that
substantially affect interstate commerce.” United
States v. Lopez, 514 U.S. 549, 558-59 (1995). The
aggregate impact of the regulated class of activities
matters; the Court does not just look at individual
regulatory actions in isolation. Gonzalez v. Raich, 545
U.S. 1, 23 (2005); see id. at 37 (Scalia, J. concurring).
Contrary to Petitioners’ and their allies’ claims,
however, nothing in the Act’s textual choices support
the argument that it only protects waters that are
functioning as “channels” of interstate commerce.
Water features unconnected to large-scale shipping
15 Kapsch, supra note 11, at 21 (2007) (discussing waters
and communications linking “inland territories to the coastal
colonies”).
16 See, e.g., William J. Hull & Robert W. Hull, The Origin
and Development of the Waterways Policy of the United States 910 (1967) (discussing how Hamilton and Jefferson linked
economic development and waters to the new nation’s
prosperity).
25
have substantial effects on interstate commerce, even
without continuous surface connections. Concern with
those effects and functions is reflected in the Act’s
protective antidegradation criteria, see Part I, in
longstanding regulations, in Riverside Bayview, and
also in the Kennedy “significant nexus” test. By
storing water, wetlands preserve dry-season flows,
allowing navigation of waterways and making yearround water use possible for farmers and other
businesses. See EPA, Connectivity of Streams &
Wetlands to Downstream Waters: A Review and
Synthesis of the Scientific Evidence 3-5 (Jan. 2015)
(summarizing peer reviewed science regarding
functions of diverse types of waters). Prohibiting the
pollution of wetlands and tributaries protects their
own important functions prioritized in the Act’s
language and also protects downstream waters and
states. Sapp, supra 7, at 10203-04, 10210-11.
Wetlands and smaller water features also serve as
buffers, absorbing storm flows, providing a site for
pollutants to break down, and reducing downstream
harms.
EPA, Functions
and
Values
of
Wetlands (2001). Downstream states, cities, property
owners, agricultural users, fishing businesses, and
recreational users all benefit from these protections.
Vast commercial value is thus both preserved and
generated through these functions of the nation’s
varied waters.
With their rhetorical claims of regulatory
overreach imposed for allegedly inconsequential ends,
Petitioners and their allies try to turn the Court’s
focus from an obvious commerce rationale for
regulation here. Businesses polluting and filling
waters are themselves engaged in commerce, and they
cause massive harms through industrial discharges,
26
filling for residential or commercial development, and
resource extraction. As long established, the federal
government has authority to regulate pollution and
risks of industrial activity, whether into waters, other
environments, or to protect health. Appalachian
Power, 311 U.S. at 426 (stating federal jurisdiction
over navigation “is but a part” of the whole Commerce
Clause power); Oklahoma ex rel. Phillips v. Guy F.
Atkinson Co., 313 U.S. 508, 525 (1941) (upholding
federal power to protect watersheds for flood control);
Hodel, 452 U.S. at 275-93 (upholding commerce-linked
rationales for mining regulation).
There is no
Commerce Clause question here about the Act and
congressional power.
IV.
The major questions doctrine, if it applies
at all, supports the Act’s longstanding
reach
Some of Petitioners’ supporting amici raise clear
statement rules or seek to shoehorn the major
questions doctrine into their arguments to tilt the
interpretive playing field in their direction. But those
arguments simply do not fit. The regulatory work at
issue is clearly statutorily authorized and has been
similarly carried on for decades.
Most importantly, that the Act was a major piece
of national legislation is irrefutable, as this Court has
repeatedly recognized. The Court has called it “‘the
most comprehensive and far reaching’” environmental
law that “Congress ever had passed” and that
established “‘an all-encompassing program of water
pollution regulation.” Ouellette, 479 U.S. at 489, 492
(1987) (quoting Milwaukee v. Illinois, 451 U.S. 304,
317-18 & n. 12 (1981)). The Act’s powerful national
27
protections are not grounds for shrinking the Act, but
require judicial respect for the legislative choices of
Congress.
As recently articulated by the Court, the major
questions doctrine builds on the understanding that
Congress is unlikely to hide “elephants in
mouseholes.” Whitman v. American Trucking Ass’ns,
Inc., 531 U.S. 457, 468 (2001). The Court has invoked
the doctrine when agencies claim to find authority for
some ambitious, far-reaching, and new initiative in
statutory language not previously understood to grant
such authority. See Alabama Association of Realtors v.
Dept. of Health and Human Services, 141 S. Ct. 2485,
2489 (2021) (building on UARG, 570 U.S. at 324, and
Brown & Williamson, 529 U.S. at 133, to reject new
agency claim of power to order an eviction moratorium
due to the COVID-19 pandemic). Similarly, the Court
has at times invoked the doctrine to decline deference
when a mismatch exists between a law’s regulatory
tasks and the expertise of the agency. See King v.
Burwell, 576 U.S. 473, 485-86 (2015). The underlying
idea is skepticism, based on statutory signals, that
Congress actually meant to authorize exercises of
newfound agency turf or ambition. This doctrine often
links to a judicial search for a “clear statement”
authorizing the agency power.
With language of outrage, but without citation to
actual record evidence of overreach, Petitioners’ allies
nonetheless call for this doctrine’s application. Here,
however, EPA and the Army Corps were working as
they have for five decades. Under statutory terms in
place since 1972 and more detailed regulatory
28
standards in effect since 1975, 17 the Army Corps
clarified that its jurisdiction extended to “[f]reshwater
wetlands including marshes, shallows, swamps and,
similar areas that are contiguous or adjacent to other
navigable waters and that support freshwater
vegetation.” 40 Fed. Reg. 31320, 31324 (July 15, 1975).
See also 40 C.F.R. 328.3(b) (in 1986 promulgated
regulation similarly defining “wetlands”). Actions
under similar regulations in a setting akin to the
Sacketts’ circumstances were unanimously affirmed in
Riverside Bayview. 474 U.S at 124.
Likewise, the roles the Act assigned to EPA and
the Army Corps draw on their respective areas of
expertise. This is not an agency asserting novel
authority or doing work unrelated to its expertise. The
Agencies have since 1972 been serving the roles
assigned to them under the Act, working with their
own scientists, and consulting with local or state
counterparts. Their expertise is beyond dispute, as is
the Act’s clear authorizations. See 33 U.S.C. § 1361(a)
(authorizing EPA to prescribe regulations in
furtherance of the Act); see also 33 U.S.C. §§ 1344(a)
(assigning Section 404 permit authority to the Army
Corps), 1344(b) (assigning to EPA obligation to draft
guidelines for Section 404 permitting, with crossreference to Section 403(c) criteria).
This case’s regulatory setting is thus utterly
unlike any case where the major questions doctrine
has been invoked. A fair reading of the Act, especially
its operative provisions’ criteria for waters protection
and federal and state roles, affirms the agencies’
17 For EPA, jurisdiction would date back to 1973.
29
longstanding views of their authority. Those statutory
provisions rule.
V.
The Act’s text refutes any claim
jurisdiction is automatically severed
when human construction blocks a
protected water
Petitioners and allied amici repeatedly assert as
self-evident that a disputed water cannot be
jurisdictional if at the surface level it is separated from
otherwise jurisdictional waters by a road, berm, or
other barrier. Any argument that waters are
automatically rendered not jurisdictional by such
manmade barriers is contradicted by the Act’s text and
structure, plus decades of opposing agency and court
views. The Act’s very focus is on waters’ functions. The
Act cannot be reconciled with a test that would
authorize destruction or degradation of waters due to
the lack of a surface water connection even when such
waters provide environmental, recreational, and
health-linked functions expressly requiring protection
under the Act.
Yet petitioners are trapped by their own facts into
asserting that major but legally untenable claim: the
Sacketts’
site
and
activities
are
almost
indistinguishable from the Riverside Bayview setting,
except that the Sackett site’s surface connections to a
tributary, a mapped and observed wetlands complex,
and navigable-in-fact Priest Lake a mere 300 feet
away, are separated by a road and a line of houses.
J.A. 19, 25-50; Riverside Bayview, 474 U.S. at 124-25
(reviewing wetlands setting). The property possesses
obvious aquatic features, wetland characteristics, and
is surrounded by other waters. J.A. 26-50. It also has
30
a direct, “shallow subsurface flow” to Priest Lake. J.A.
42-43. Such waters have long been protected due to the
Act’s antidegradation operative provisions reviewed in
Part I, as this Court has confirmed. See Riverside
Bayview, 474 U.S. at 134-35.
Although jurisdictional waters can cease to exist
in particular limited settings, 18 the Act makes this the
exception to its protective reach. First, the heart of
Section 404 prevents waters from being destroyed by
unpermitted dredge or fill material so they no longer
function as waters. That is its textual, operational
mandate. As stated in implementing regulations,
“filling operations in wetlands” are “among the most
severe environmental impacts covered.” 40 C.F.R.
§ 230.1(d).
Multiple other provisions further defeat any
claim that human constructions obviously and
automatically render a site nonjurisdictional. For
example, 1977 exclusions for assorted activities came
with an express caveat, that “farm roads” and other
similar roads must avoid “impair[ing]” waters. 33
U.S.C. § 1344(f)(1)(E).
Section 404(f) likewise
mandates permits for discharges “incidental to any
activity having as its purpose bringing an area of the
navigable waters into a use to which it was not
previously subject,” where waters might be “impaired”
or “reduced.” 33 U.S.C. § 1344(f)(2) (emphasis added).
18 Waters can lose their jurisdictional status in specified
circumstances. Permits allowing fill can render them
nonjurisdictional. “Changes” in a water’s jurisdictional status
can occur due to natural processes. 40 C.F.R. § 328.5. “Manmade” changes, however, can only alter jurisdictional lines after
Army Corps “examin[ation]” and “verif[ication].” Id.
31
Under this provision, turning a water into land for a
new “use”—say, for example, draining a wetland, or
diverting or blocking waters—even if involving mere
incidental discharges, must still have a permit.
Reflecting this enduring law, implementing
regulations dating back to the 1970s mirror this
understanding: waters “used in the past” for interstate
commerce or in tidal settings remain waters. 40 C.F.R.
§ 328.3(a)(1). “Impoundments” of waters remain
waters. 40 C.F.R. § 328.3(a)(4). “Adjacent” waters are
defined as “bordering, contiguous, or neighboring,”
and they remain jurisdictional “adjacent wetlands”
even if “separated from other waters of the United
States by man-made dikes or barriers, natural river
beams, beach dunes and the like.” 40 C.F.R.
§ 328.3(a)(4), as codified in 1977. 42 Fed. Reg. 37, 122,
37, 144 (July 19, 1977). 19 EPA and the Army Corps
have long instructed field investigators to consider
past wetland hydrology despite recent human
construction alterations. See, e.g., U.S. Army Corps of
Eng’rs, U.S. EPA, U.S. Fish and Wildlife Service, &
U.S.D.A. Soil Conservation Service, Federal Manual
for Identifying and Delineating Jurisdictional
Wetlands, 13, 31, 50-55 (1989).
Finally, the Court also must avoid creating a new
evasive strategy where opportunistic developers (or
others) would simply alter land contours to create a
barrier between protected waters and adjacent
wetlands they wish to develop. Petitioners’
mistargeted new test would risk opening precisely the
This definition remained largely unchanged until the
Trump administration’s quickly rejected regulation. See supra
note 2.
19
32
type of “large and obvious loophole” that the Court
foreclosed in County of Maui, Hawaii v. Hawaii
Wildlife Fund. 140 S. Ct. 1462, 1473 (2020). It rejected
Maui’s argument that any intervening media (air,
land, or groundwater) after a discharge would
automatically disrupt jurisdiction, identifying evasion
risks: “If [so], then why could not the pipe’s owner,
seeking to avoid the permit requirement, simply move
the pipe back, perhaps only a few yards, so that the
pollution must travel through at least some
groundwater before reaching the sea? We do not see
how Congress could have intended to create such a
large and obvious loophole….” Id. at 1473 (citing The
Emily, 22 U.S. 381, 390 (1824) (rejecting an
interpretation that would facilitate ‘evasion of the
law’)). The Court must ensure that any possible new
“proper test” does not invite evasion of the Act’s
jurisdiction, thereby devastating the nation’s wetlands
and other waters with newly unregulated filling and
dredging. The Act’s explicit criteria for waters’
protection preclude any such outcome.
In conclusion, Amici members of Congress ask
this Court to retain the enduring, successful,
bipartisan protections of the Act. The Court should
respect the policies Congress enacted into law in 1972
and strengthened in 1977. It must reject calls for a
new jurisdiction-shrinking test based on policy
predilections that clash with the Act. The Act’s text
provides clear protective criteria that Petitioners and
allied amici ignore, plus it refutes their echoed but
atextual arguments that the Act is only focused on
navigational uses of waters and waters as channels of
interstate commerce.
The Act is a powerful
antipollution statute that, in all of its provisions,
33
prioritizes waters’ integrity and mandates the
protections of waters for their environmental,
fisheries, health, and recreational functions. All
actions by agencies, the states, those regulated, or this
Court must conform to those congressionally set
national policies.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
June 17th, 2022
William W. Buzbee
GEORGETOWN UNIVERSITY
LAW CENTER
william.buzbee@georgetow
n.edu
Sara A. Colangelo
Counsel of Record
Jack H.L. Whiteley
GEORGETOWN LAW
ENVIRONMENTAL LAW &
JUSTICE CLINIC
600 New Jersey Ave., NW
Washington, D.C. 20001
(202) 661-6543
sara.colangelo@law.georget
own.edu
App.1
APPENDIX
LIST OF AMICI
Chair Peter A. DeFazio of Oregon,
4th Congressional District
Chair Grace F. Napolitano of California,
32nd Congressional District
Chair Donald S. Beyer Jr. of Virginia,
8th Congressional District
Representative Alma S. Adams, Ph.D. of North Carolina,
12th Congressional District
Representative Pete Aguilar of California,
31st Congressional District
Representative Colin Allred of Texas,
32nd Congressional District
Representative Jake Auchincloss of Massachusetts,
4th Congressional District
Representative Nanette Diaz Barragán of California,
44th Congressional District
Representative Karen Bass of California,
37th Congressional District
Representative Earl Blumenauer of Oregon,
3rd Congressional District
App.2
Representative Lisa Blunt Rochester of Delaware,
At-Large Congressional District
Representative Suzanne Bonamici of Oregon,
1st Congressional District
Representative Carolyn Bourdeaux of Georgia,
7th Congressional District
Representative Jamaal Bowman of New York,
16th Congressional District
Representative Anthony G. Brown of Maryland,
4th Congressional District
Representative Shontel Brown of Ohio,
11th Congressional District
Representative Julia Brownley of California,
26th Congressional District
Representative Salud Carbajal of California,
24th Congressional District
Representative Tony Cárdenas of California,
29th Congressional District
Representative André Carson of Indiana,
7th Congressional District
Representative Troy Carter of Louisiana,
2nd Congressional District
Representative Matt Cartwright of Pennsylvania,
8th Congressional District
App.3
Representative Ed Case of Hawaii,
1st Congressional District
Representative Sean Casten of Illinois,
6th Congressional District
Representative Kathy Castor of Florida,
14th Congressional District
Representative Sheila Cherfilus-McCormick of Florida,
20th Congressional District
Representative Judy Chu of California,
27th Congressional District
Representative David N. Cicilline of Rhode Island,
1st Congressional District
Representative Katherine M. Clark of Massachusetts,
5th Congressional District
Representative Yvette D. Clarke of New York,
9th Congressional District
Representative Steve Cohen of Tennessee,
9th Congressional District
Representative Gerald E. Connolly of Virginia,
11th Congressional District
Representative Danny K. Davis of Illinois,
7th Congressional District
Representative Madeleine Dean of Pennsylvania,
4th Congressional District
App.4
Representative Diana DeGette of Colorado,
1st Congressional District
Representative Rosa L. DeLauro of Connecticut,
3rd Congressional District
Representative Suzan DelBene of Washington,
1st Congressional District
Representative Mark DeSaulnier of California,
11th Congressional District
Representative Debbie Dingell of Michigan,
12th Congressional District
Representative Lloyd Doggett of Texas,
35th Congressional District
Representative Mike Doyle of Pennsylvania,
18th Congressional District
Representative Veronica Escobar of Texas,
16th Congressional District
Representative Anna G. Eshoo of California,
18th Congressional District
Representative Adriano Espaillat of New York,
13th Congressional District
Representative Dwight Evans of Pennsylvania,
3rd Congressional District
Representative Bill Foster of Illinois,
11th Congressional District
App.5
Representative Lois Frankel of Florida,
21st Congressional District
Representative Jesús “Chuy” García of Illinois,
4th Congressional District
Representative Jimmy Gomez of California,
34th Congressional District
Representative Josh Gottheimer of New Jersey,
5th Congressional District
Representative Al Green of Texas,
9th Congressional District
Representative Raúl M. Grijalva of Arizona,
3rd Congressional District
Representative Jahana Hayes of Connecticut,
5th Congressional District
Representative Brian Higgins of New York,
26th Congressional District
Representative Steven Horsford of Nevada,
4th Congressional District
Representative Chrissy Houlahan of Pennsylvania,
6th Congressional District
Representative Jared Huffman of California,
2nd Congressional District
Representative Sheila Jackson Lee of Texas,
18th Congressional District
App.6
Representative Sara Jacobs of California,
53rd Congressional District
Representative Pramila Jayapal of Washington,
7th Congressional District
Representative Eddie Bernice Johnson of Texas,
30th Congressional District
Representative Henry C. “Hank” Johnson, Jr. of Georgia,
4th Congressional District
Representative Mondaire Jones of New York,
17th Congressional District
Representative Kaiali‘i Kahele of Hawaii,
2nd Congressional District
Representative Marcy Kaptur of Ohio,
9th Congressional District
Representative Bill Keating of Massachusetts,
9th Congressional District
Representative Ro Khanna of California,
17th Congressional District
Representative Daniel T. Kildee of Michigan,
5th Congressional District
Representative Derek Kilmer of Washington,
6th Congressional District
Representative Raja Krishnamoorthi of Illinois,
8th Congressional District
App.7
Representative James R. Langevin of Rhode Island,
2nd Congressional District
Representative John B. Larson of Connecticut,
1st Congressional District
Representative Brenda L. Lawrence of Michigan,
14th Congressional District
Representative Al Lawson of Florida,
5th Congressional District
Representative Barbara Lee of California,
13th Congressional District
Representative Susie Lee of Nevada,
3rd Congressional District
Representative Teresa Leger Fernández of New Mexico,
3rd Congressional District
Representative Andy Levin of Michigan,
9th Congressional District
Representative Mike Levin of California,
49th Congressional District
Representative Ted W. Lieu of California,
33rd Congressional District
Representative Zoe Lofgren of California,
19th Congressional District
Representative Alan Lowenthal of California,
47th Congressional District
App.8
Representative Stephen F. Lynch of Massachusetts,
8th Congressional District
Representative Tom Malinowski of New Jersey,
7th Congressional District
Representative Carolyn B. Maloney of New York,
12th Congressional District
Representative Sean Patrick Maloney of New York,
18th Congressional District
Representative Doris Matsui of California,
6th Congressional District
Representative Lucy McBath of Georgia,
6th Congressional District
Representative Betty McCollum of Minnesota,
4th Congressional District
Representative A. Donald McEachin of Virginia,
4th Congressional District
Representative James P. McGovern of Massachusetts,
2nd Congressional District
Representative Jerry McNerney of California,
9th Congressional District
Representative Grace Meng of New York,
6th Congressional District
Representative Seth Moulton of Massachusetts,
6th Congressional District
App.9
Representative Marie Newman of Illinois,
3rd Congressional District
Representative Donald Norcross of New Jersey,
1st Congressional District
Representative Eleanor Holmes Norton of the District of
Columbia, At-Large District
Representative Alexandria Ocasio-Cortez of New York,
14th Congressional District
Representative Tom O’Halleran of Arizona,
1st Congressional District
Representative Frank Pallone, Jr. of New Jersey,
6th Congressional District
Representative Chris Pappas of New Hampshire,
1st Congressional District
Representative Bill Pascrell, Jr. of New Jersey,
9th Congressional District
Representative Donald M. Payne, Jr. of New Jersey,
10th Congressional District
Representative Scott H. Peters of California,
52nd Congressional District
Representative Dean Phillips of Minnesota,
3rd Congressional District
Representative Chellie Pingree of Maine,
1st Congressional District
App.10
Representative Mark Pocan of Wisconsin,
2nd Congressional District
Representative Katie Porter of California,
45th Congressional District
Representative Ayanna Pressley of Massachusetts,
7th Congressional District
Representative Mike Quigley of Illinois,
5th Congressional District
Representative Jamie Raskin of Maryland,
8th Congressional District
Representative Kathleen M. Rice of New York,
4th Congressional District
Representative Deborah K. Ross of North Carolina,
2nd Congressional District
Representative Lucille Roybal-Allard of California,
40th Congressional District
Representative C.A. Dutch Ruppersberger of Maryland,
2nd Congressional District
Representative Bobby L. Rush of Illinois,
1st Congressional District
Representative Linda T. Sánchez of California,
38th Congressional District
Representative John P. Sarbanes of Maryland,
3rd Congressional District
App.11
Representative Mary Gay Scanlon of Pennsylvania,
5th Congressional District
Representative Jan Schakowsky of Illinois,
9th Congressional District
Representative Adam B. Schiff of California,
28th Congressional District
Representative Robert C. “Bobby” Scott of Virginia,
3rd Congressional District
Representative Mikie Sherrill of New Jersey,
11th Congressional District
Representative Albio Sires of New Jersey,
8th Congressional District
Representative Adam Smith of Washington,
9th Congressional District
Representative Darren Soto of Florida,
9th Congressional District
Representative Jackie Speier of California,
14th Congressional District
Representative Melanie Stansbury of New Mexico,
1st Congressional District
Representative Haley Stevens of Michigan,
11th Congressional District
Representative Marilyn Strickland of Washington,
10th Congressional District
App.12
Representative Tom Suozzi of New York,
3rd Congressional District
Representative Mark Takano of California,
41st Congressional District
Representative Dina Titus of Nevada,
1st Congressional District
Representative Rashida Tlaib of Michigan,
13th Congressional District
Representative Paul D. Tonko of New York,
20th Congressional District
Representative Norma J. Torres of California,
35th Congressional District
Representative Lori Trahan of Massachusetts,
3rd Congressional District
Representative David Trone of Maryland,
6th Congressional District
Representative Juan Vargas of California,
51st Congressional District
Representative Nydia M. Velázquez of New York,
7th Congressional District
Representative Debbie Wasserman Schultz of Florida,
23rd Congressional District
Representative Maxine Waters of California,
43rd Congressional District
App.13
Representative Bonnie Watson Coleman of New Jersey,
12th Congressional District
Representative Peter Welch of Vermont,
At-Large District
Representative Nikema Williams of Georgia,
5th Congressional District
Representative Frederica S. Wilson of Florida,
24th Congressional District
Representative John Yarmuth of Kentucky,
3rd Congressional District
Former Representative Timothy H. Bishop of New York,
1st Congressional District
Former Representative Robert A. Borski of Pennsylvania,
3rd Congressional District
Former Representative Harley Rouda of California,
48th Congressional District
Senator Richard Blumenthal of Connecticut
Senator Cory A. Booker of New Jersey
Senator Benjamin L. Cardin of Maryland
Senator Thomas R. Carper of Delaware
Senator Tammy Duckworth of Illinois
Senator Dianne Feinstein of California
App.14
Senator Martin Heinrich of New Mexico
Senator Mazie K. Hirono of Hawaii
Senator Kirsten Gillibrand of New York
Senator Edward J. Markey of Massachusetts
Senator Jeffrey A. Merkley of Oregon
Senator Alex Padilla of California
Senator Bernard Sanders of Vermont
Senator Chris Van Hollen of Maryland
Senator Elizabeth Warren of Massachusetts
Senator Sheldon Whitehouse of Rhode Island
Former Senator Barbara Boxer of California
_________________________________________
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.