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

Supreme Court of the United States

_______________

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; MICHAEL S. REGAN, ADMINISTRATOR,

Respondents.

_______________

On Writ Of Certiorari To The United States Court

Of Appeals For The Ninth Circuit

_______________

BRIEF OF OUTDOOR RECREATION AND

CONSERVATION ORGANIZATIONS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

_______________

JENNIFER S. WINDOM

Counsel of Record

SHIKHA GARG

KRAMER LEVIN ROBBINS RUSSELL LLP

2000 K Street, NW

Washington, DC 20006

(202) 775-4500

jwindom@kramerlevin.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................ ii

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 3

ARGUMENT .................................................................... 6

I. ADOPTING PETITIONERS’ POSITION

WOULD HAVE DEVASTATING IMPACTS

ON THE NATION’S WATERS ................................... 6

A. Substantial Water Resources Would Lose

Federal Protection Under Petitioners’

Proposed Test ......................................................... 6

B. These Waters Are Crucially Important For

Wildlife, Recreational, And Economic

Interests ............................................................... 12

II. PETITIONERS’ PROPOSED TEST DEFIES

THE CLEAN WATER ACT’S TEXT,

STRUCTURE, AND PURPOSE ............................... 29

A. By Ignoring Actual Hydrological

Connections, Petitioners’ Proposed Test

Frustrates The Act’s Text And Statutory

Purpose ................................................................ 29

B. Petitioners’ Proposed Test Is Unclear And

Unworkable.......................................................... 33

CONCLUSION ............................................................... 35

TABLE OF AUTHORITIES

Cases

Page(s)

Cnty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) .............................. 31, 32, 34

Conservation Law Foundation v. EPA,

No. 20-cv-10820-DPW (D. Mass.) ............ 23, 26, 27

Rapanos v. United States,

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

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .......................................... 5, 22

South Carolina Coastal Conservation

League v. Wheeler,

No. 2:20-cv-01687-DCN (D.S.C.) ......................... 15

United Savs. Ass’n of Tex. v. Timbers of

Inwood Forest Assocs., Ltd.,

484 U.S. 365 (1988) .............................................. 30

United States v. Atl. Rsch. Corp.,

551 U.S. 128 (2007) .............................................. 30

United States v. Cundiff,

555 F.3d 200 (6th Cir.), cert. denied,

558 U.S. 818 (2009) ................................................ 4

United States v. Donovan,

661 F.3d 174 (3d Cir. 2011), cert.

denied, 566 U.S. 990 (2012) ................................... 4

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Lucas,

516 F.3d 316 (5th Cir.), cert. denied,

555 U.S. 822 (2008) ................................................ 4

United States v. Riverside Bayview

Homes, Inc.,

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

Statutes

33 U.S.C. § 1251 ................................................ passim

33 U.S.C. § 1344 .................................................... 3, 30

33 U.S.C. § 1362 .................................................... 3, 29

54 U.S.C. § 100751 .................................................... 26

Other Authorities

2016 NATIONAL SURVEY OF FISHING,

HUNTING, AND WILDLIFE-ASSOCIATED

RECREATION, U.S. FISH & WILDLIFE

SERV. (2018).......................................................... 24

Laurie Alexander, et al., Featured

Collection Introduction: Connectivity

of Streams and Wetlands to

Downstream Waters, 54:2 J. AM.

WATER RESOURCES ASS’N 287

(Apr. 2018) ................................................ 12, 13, 16

TABLE OF AUTHORITIES—Continued

Page(s)

Donna Anderson, Economic Impact of

Recreational Trout Angling in the

Driftless Area (Nov. 2016).................................... 24

Ass’n of State Wetland Managers,

Status and Trends Report on State

Wetland Programs in the United

States (Mar. 2016),

https://bit.ly/3wH7TzK .......................................... 9

Sarah Bowman & London Gibson, “Last

Line of Defense”: New Bill Would

Strip Protections for Many of

Indiana’s Wetlands, INDYSTAR

(Jan. 25, 2021),

https://bit.ly/3NSbC4u ........................................... 9

J. R. Brooks, et al., Estimating Wetland

Connectivity to Streams in the

Prairie Pothole Region, 54 WATER

RESOURCES RES. 955 (Jan. 2018) ......................... 22

Bureau of Econ. Analysis, Outdoor

Recreation Satellite Account, U.S.

and States, 2019 (Nov. 10, 2020),

https://bit.ly/3Qcn2lE ........................................... 25

Cally Carswell, Simply Irreplaceable:

Wetlands, Water Educ. Colorado

(Jan. 5, 2011), https://bit.ly/3ah9t3T ................... 18

TABLE OF AUTHORITIES—Continued

Page(s)

Brett Chase, Indiana Dunes Beaches

Reopen After U.S. Steel Spills Iron

Into Lake Michigan, CHICAGO SUN

TIMES (Sept. 29, 2021) ......................................... 26

Clean Water Protections, Izaak Walton

League of Am., https://bit.ly/3sRsPTt ........... 10, 11

Nicole Cordan, In New Mexico, Pecos

River Sustains Communities,

Traditions, and Wildlife, PEW

(July 22, 2020), https://bit.ly/3yTsjZc .................. 19

Robert Costanza, et al., The Global

Value of Coastal Wetlands for Storm

Protection, 70 GLOB. ENV’T CHANGE 1

(2021) .................................................................... 28

Ducks Unlimited, California Wetlands

Straining to Support Drinking

Water, Habitat (Nov. 15, 2021),

https://bit.ly/3zDvcOb .......................................... 12

Ducks Unlimited, Prairie Pothole

Region, https://bit.ly/3yUwZhu............................ 21

Dirk van Duym, Outdoor Recreation

Satellite Account: National and

State Statistics 2012-2019, BUREAU

ECON. ANALYSIS (2020),

https://bit.ly/3myc3FF .......................................... 23

TABLE OF AUTHORITIES—Continued

Page(s)

Joanna Endter-Wada, et al., Protecting

Wetlands for People: Strategic Policy

Action Can Help Wetlands Mitigate

Risks and Enhance Resilience, 108

J. ENV’T SCI. & POL’Y 37 (June 2020) .................. 28

EPA, CONNECTIVITY OF STREAMS &

WETLANDS TO DOWNSTREAM WATERS:

A REVIEW AND SYNTHESIS OF THE

SCIENTIFIC EVIDENCE (Jan. 2015) ................ passim

EPA, ECONOMIC ANALYSIS FOR THE

NAVIGABLE WATERS PROTECTION

RULE: DEFINITION OF “WATERS OF

THE UNITED STATES” (Jan. 22, 2020),

https://bit.ly/3wC1mrh ......................................... 16

EPA, ECONOMIC ANALYSIS FOR THE

PROPOSED “REVISED DEFINITION OF

‘WATERS OF THE UNITED STATES’”

RULE (Nov. 2021).................................................... 7

EPA, Economic Benefits of Wetlands

(May 2006), https://bit.ly/3a5DnrA ............... 24, 27

EPA, Protecting the Nation’s Waters

Through Effective NPDES Permits:

A Strategic Plan (June 2001),

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

vii

TABLE OF AUTHORITIES—Continued

Page(s)

EPA, Wetlands: Protecting Life and

Property from Flooding (May 2006),

https://bit.ly/3Nse95d ........................................... 27

John S. Jacobs, et al., More Flooding,

Fewer Fish: Freshwater Wetland

Loss in the Houston Area, 1992-2010,

TEX. A&M (2015) .................................................. 28

Anne Janik, Rocky Mountain Wetland

Provides Fen-tastic Habitat for High

Altitude Plants, Wildlife, U.S. Dep’t

of Agric., https://bit.ly/3Ny03z5 ........................... 18

Bret Jaspers & Lauren Gilger, Water

Rule Leaves Ephemeral Streams

Unprotected, KJZZ (Jan. 23, 2020),

https://bit.ly/3PFonB1 .......................................... 11

Matthew P. Jones & William F. Hunt,

Stormwater BMPs for Trout Waters:

Coldwater Stream Design Guidance

for Stormwater Wetlands, Wet

Ponds, and Bioretention, N.C. STATE

U. COOPERATIVE EXTENSION (2008) ..................... 28

David A. Keiser & Joseph S. Shapiro,

Consequences of the Clean Water Act

and the Demand for Water Quality,

134 Q. J. ECON. 349 (2019)..................................... 6

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Rebecca L. Kihslinger, WOTUS

Proposal Poses Challenge for States,

ENV’T L. INST. (Feb. 18, 2019),

https://bit.ly/38NWu9g........................................... 9

Kate Klaus, The Clean Water Act Flows

in a New Direction, Leaving

Wetlands Protection Largely to the

States, YALE ENV’T REV. (May 14,

2019), https://bit.ly/3wB81Ra .............................. 21

Lainie R. Levick, et al., THE

ECOLOGICAL AND HYDROLOGICAL

SIGNIFICANCE OF EPHEMERAL AND

INTERMITTENT STREAMS IN THE ARID

AND SEMI-ARID AMERICAN

SOUTHWEST, EPA (Nov. 2008) ..................... 8, 9, 15

Bobby Magill, New Mexico Says It Can’t

Halt Pollution Under Feds’ Water

Rule, BLOOMBERG L. (Sept. 16, 2020),

https://bit.ly/3wFdlTT .......................................... 11

Missouri River, Izaak Walton League of

Am., https://bit.ly/3MD1ix5 ................................. 15

Jared Mott, Saving Millions of Birds

with One Bill, Izaak Walton League

of Am. (May 24, 2021),

https://bit.ly/3MD4mJJ ........................................ 17

TABLE OF AUTHORITIES—Continued

Page(s)

Jared Mott, Sportsmen and Women

Know Prairie Potholes Too, Izaak

Walton League of Am. (Jan. 15,

2019), https://bit.ly/3PA8JqK ........................ 21, 22

Siddharth Narayan, et al., The Value of

Coastal Wetlands for Flood Damage

Reduction in the Northeastern USA,

NATURE (2017). ..................................................... 28

Nat’l Parks Conservation Ass’n, Clean

Water for Parks and Communities

Restored (Nov. 18, 2021),

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

Nat’l Parks Conservation Ass’n,

Position on Waters of the U.S.

Regulations (June 12, 2019),

https://bit.ly/3sRgBdI ........................................... 20

Nat’l Park Serv., 2019 NATIONAL PARK

VISITOR SPENDING EFFECTS:

ECONOMIC CONTRIBUTIONS TO LOCAL

COMMUNITIES, STATES, AND THE

NATION (2020) ...................................................... 25

Nat’l Park Serv., Great Marsh Trail,

https://bit.ly/3tmFWwg ........................................ 26

Nat’l Park Serv., HIS Park Report,

https://bit.ly/3G6IaFj ........................................... 26

TABLE OF AUTHORITIES—Continued

Page(s)

Nat’l Park Serv., Water Quantity,

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

Nat’l Wildlife Fed’n, Comments on

Revised Definition of “Waters of the

United States” (Apr. 15, 2019) ...................... 23, 33

Nat’l Wildlife Fed’n, et al., Hunters and

Anglers: Fueling Our Nation’s

Economy and Paying for

Conservation (2014),

https://bit.ly/3wCan3v .......................................... 24

New Ohio Law Eases State Regulation

of Some Streams, ASSOCIATED PRESS

(Apr. 25, 2022),

https://bit.ly/3GRFgoc .......................................... 10

News Release: Outdoor Recreation

Satellite Account, U.S. and States,

2019, BUREAU ECON. ANALYSIS

(Nov. 10, 2019),

https://bit.ly/3xouO3n .................................... 23, 24

Parks with Clean Water Act 303(d)Listed Impairments, Nat’l Park Serv.

(last updated Nov. 29, 2021),

https://bit.ly/3MFKoxS......................................... 26

TABLE OF AUTHORITIES—Continued

Page(s)

PECOS RIVER BASIN STUDY – NEW

MEXICO: EVALUATION OF FUTURE

WATER SUPPLY AND DEMAND FOR

IRRIGATED AGRICULTURE IN THE

PECOS BASIN IN NEW MEXICO, U.S.

DEP’T INTERIOR (Sept. 2021) ................................ 20

David A. Peterson, et al., WATER

QUALITY IN THE YELLOWSTONE RIVER

BASIN, U.S. DEP’T INTERIOR (2004) ...................... 15

Janette Rosenbaum, Think Water in

America Is Clean? That’s a Mistake,

Izaak Walton League of Am.

(Dec. 23, 2020),

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

Julie M. Sibbing, Down the Drain: The

Destruction of Waters and Wildlife in

the Southwest, Nat’l Wildlife Fed’n

(Nov. 2004) ........................................................... 25

Special Report on Fishing, Outdoor

Indus. Ass’n (July 21, 2020),

https://bit.ly/39mpuW7 ........................................ 24

xii

TABLE OF AUTHORITIES—Continued

Page(s)

ABIGAIL A. TOMASEK, ET AL.,

WASTEWATER INDICATOR COMPOUNDS

IN WASTEWATER EFFLUENT, SURFACE

WATER, AND BED SEDIMENT IN THE

ST. CROIX NATIONAL SCENIC

RIVERWAY AND IMPLICATIONS FOR

WATER RESOURCES AND AQUATIC

BIOTA, MINNESOTA AND WISCONSIN,

2007–08, U.S. DEP’T INTERIOR (2012) .................. 27

Tongue River Reservoir State Park,

Montana Fish, Wildlife & Parks,

https://bit.ly/3lBM3IK .......................................... 16

Trout Unlimited, Everything You

Wanted to Know: Rio Grande

Cutthroat Trout (July 29, 2021),

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

Mac Stone, Wetlands in the Everglades

(Dec. 12, 2018),

https://bit.ly/3MDOFlf ......................................... 22

Linda K. Vance, GEOGRAPHICALLY

ISOLATED WETLANDS AND

INTERMITTENT/EPHEMERAL STREAMS

IN MONTANA (Jan. 2009),

https://bit.ly/3yS52GV.......................................... 14

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Glenn Watkins, How the Clean Water

Act Protects the River of Grass, Nat’l

Wildlife Fed’n (Jan. 8, 2016),

https://bit.ly/39JArki ...................................... 22, 23

Why Healthy Wetlands Are Good News

for Deer Hunters, WIS. WETLANDS

ASS’N (Nov. 14, 2016),

https://bit.ly/3xf6xN8 ........................................... 25

Oliver E.J. Wing, et al., Inequitable

Patterns of US Flood Risk in the

Anthropocene, 12 NATURE 156

(Feb. 2022) ............................................................ 28

Ariel Wittenberg & Kevin Bogardus,

EPA Falsely Claims ‘No Data’ on

Waters in WOTUS Rule, POLITICO

(Dec. 11, 2018),

https://bit.ly/3wDzWS3 .......................................... 7

Yizhou Zhuang, Quantifying

Contributions of Natural Variability

and Anthropogenic Forcings on

Increased Fire Weather Risk Over the

Western United States,

118 PROCEEDINGS OF THE NAT’L

ACAD. SCI. 1 (Sept. 2021) ..................................... 29

BRIEF OF OUTDOOR RECREATION AND

CONSERVATION ORGANIZATIONS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

_________________

INTEREST OF THE AMICI CURIAE1

Amici represent recreation and conservation

organizations committed to the preservation of the

nation’s water resources. Healthy waters sustain fish

and other wildlife and support the $788 billion

domestic outdoor recreation industry, including

hunting, fishing, and water activities within the

nation’s parks and other outdoor spaces. Dirk van

Duym, Outdoor Recreation Satellite Account:

National and State Statistics 2012-2019, BUREAU

ECON. ANALYSIS, at 3 (2020), https://bit.ly/3myc3FF.

The American Fly Fishing Trade Association

represents the business of fly fishing, which includes

manufacturers, retailers, outfitters, and guides across

the nation. The protection and enhancement of fish

habitat is the foundation of the fly fishing industry.

Backcountry Hunters & Anglers is a non-profit

sportsmen’s organization with 40,000 members. It is

dedicated to North America’s outdoor heritage of

hunting and fishing in a natural setting, through

education and work on behalf of wild public lands,

waters, and wildlife.

1 No counsel for a party authored this brief, in whole or in part,

and no counsel for a party or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity other than amici curiae or their counsel made a

monetary contribution to this brief ’s preparation or submission.

Petitioners and Respondents have consented to the filing.

Founded in 1922, the Izaak Walton League (the

“League”) fights for clean air and water, healthy fish

and wildlife habitat, and conservation of our natural

resources for future generations. The League plays a

unique role in supporting community-based science

and local conservation and has a long legacy of

shaping sound national policy.

The National Parks Conservation Association

(“NPCA”) is a non-profit and non-partisan

organization with more than 1.6 million members and

supporters dedicated to improving and protecting the

National Park System. The National Park System

includes spectacular rivers, stunning lakes, expansive

oceans, and other majestic water resources across the

United States. Protecting these park waters is crucial

to NPCA’s mission.

The National Wildlife Federation (“NWF”)

represents more than 6 million conservation-minded

hunters, anglers, and outdoor enthusiasts nationwide,

including through its affiliate organizations across

52 States and territories. Conserving the nation’s

wetlands, streams, and rivers is at the core of NWF’s

mission, and NWF has been advocating for Clean

Water Act protections since 1972.

The Theodore Roosevelt Conservation Partnership

(“TRCP”) is a non-profit organization dedicated to

ensuring that all Americans have quality places to

hunt and fish. TRCP works to sustain healthy habitat

and clean water for wildlife, representing more than

100,000 members, and working with diverse partner

groups that represent today’s leading hunting,

fishing, and conservation organizations.

Trout Unlimited (“TU”) is a non-profit

organization with 370,000 members, who are anglers

dedicated to conserving, protecting, and restoring the

nation’s trout and salmon fisheries and their

watersheds. TU staff and volunteers, working with

landowners and agency partners, restore hundreds of

miles of waters each year.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Clean Water Act, 33 U.S.C. § 1251 et seq.

(“CWA” or the “Act”), was enacted by Congress “to

restore and maintain the chemical, physical, and

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

§ 1251(a). In part, it regulates “any addition of any

pollutant to navigable waters from any point source.”

33 U.S.C. § 1362(12). The term “navigable waters” is

broadly defined as “the waters of the United States,

including the territorial seas.” Id. § 1362(7). This case

concerns the appropriate test for determining when

wetlands constitute “waters of the United States”

under the Act.

There is no dispute that at least some wetlands fall

within the Act’s jurisdiction. See Clean Water Act of

1977, Pub. L. No. 95-217, § 67(b), 91 Stat. 1566, 1601

(1977), codified at 33 U.S.C. § 1344(g)(1) (authorizing

transfer of permitting authority except for discharges

to certain covered waters, “including wetlands”); see

also United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 139 (1985).

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

Justice Scalia, writing for himself and three other

Members of the Court, concluded that wetlands

constitute “waters of the United States” under the Act

if they have “a continuous surface connection” to

“relatively permanent, standing or continuously

flowing bodies of water ‘forming geographic features’

that are described in ordinary parlance as ‘streams,

oceans, rivers, and lakes.’” Id. at 739, 742 (plurality

opinion) (cleaned up). Justice Kennedy, in a

concurring opinion, concluded that wetlands are

regulated by the Act so long as they “possess a

‘significant nexus’ to” traditional navigable waters. Id.

at 759 (Kennedy, J., concurring); see id. at 780 (stating

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’”).

Here, Petitioners propose that a wetland is subject

to federal jurisdiction only if it has a continuous

surface water connection to a “water” and that

adjacent water is itself among what Petitioners would

deem “waters of the United States.” Pet. Br. 5-6. To

this extent, their proposal closely resembles the

approach to wetlands jurisdiction articulated by the

plurality in Rapanos. But that reading of the Act has

never been espoused by a majority of this Court nor

adopted as controlling by any court of appeals. See,

e.g., United States v. Donovan, 661 F.3d 174, 181-82,

184 (3d Cir. 2011), cert. denied, 566 U.S. 990 (2012)

(noting that the First, Third, Seventh, Eighth, and

Eleventh Circuits have declined to adopt the Rapanos

plurality test as the sole test for determining CWA

jurisdiction); United States v. Cundiff, 555 F.3d 200,

208 (6th Cir.), cert. denied, 558 U.S. 818 (2009) (same);

United States v. Lucas, 516 F.3d 316, 327 (5th Cir.),

cert. denied, 555 U.S. 822 (2008) (same). And it is

unfaithful to the federal regulatory jurisdiction that

Congress reserved half a century ago.

1. Adoption of Petitioners’ test could deny federal

protection to the majority of the nation’s wetlands.

But, as this Court has recognized, Congress intended

to regulate under the Act some waters not navigable

in the traditional sense, including some wetlands.

Riverside Bayview, 474 U.S. at 133; see also Solid

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

Eng’rs, 531 U.S. 159, 167 (2001); Rapanos, 547 U.S. at

731 (plurality opinion).

Congress intended to regulate waters like those on

Petitioners’ property. Those waters are part of a

larger wetlands complex adjacent to the traditional

navigable water of Priest Lake and connected to that

lake on one side by shallow subsurface water flow,

separated only by a man-made road. Because

pollution, degradation, or destruction of such

wetlands affects the physical, chemical, and biological

integrity of downstream waters, restricting CWA

jurisdiction as Petitioners propose would cause

widespread damage to fish and wildlife and devastate

the nation’s outdoor recreation economy.

2. The Court need not risk those dire

consequences. The test advanced by Petitioners relies

on a flawed reading of the CWA’s text, structure, and

purpose. The significant-nexus test the Ninth Circuit

applied in this case, on the other hand, is faithful to

the CWA by appropriately focusing its inquiry on

whether the feature in question affects the chemical,

physical, and biological integrity of other covered

waters. Moreover, Petitioners’ test is confusing and

introduces unavoidable practical difficulties that

make it more difficult—not easier—to apply than the

significant-nexus test.

ARGUMENT

ADOPTING

PETITIONERS’

POSITION

WOULD HAVE DEVASTATING IMPACTS

ON THE NATION’S WATERS

The CWA seeks to achieve water quality that,

among other things, “provides for the protection and

propagation of fish, shellfish, and wildlife” and “for

recreation in and on the water.” 33 U.S.C.

§ 1251(a)(2). The Act has been effective, leading to

substantial improvements in water quality over the

last 50 years. See, e.g., EPA, Protecting the Nation’s

Waters Through Effective NPDES Permits: A Strategic

Plan, at 1 (June 2001), https://bit.ly/3lBGJFe; David

A. Keiser & Joseph S. Shapiro, Consequences of the

Clean Water Act and the Demand for Water Quality,

134 Q. J. ECON. 349, 352 (2019).

Under the radically restrictive jurisdiction

Petitioners propose, however, the majority of

wetlands in the United States could lose CWA

protection, and state protections would not make up

for the loss of federal protections. The degradation of

wetlands and other waters would cause catastrophic

harm to the fish and wildlife that depend on these

resources. That increase in water pollution, in turn,

would have dire consequences for the outdoor

recreation economy.

A. Substantial Water Resources Would Lose

Federal Protection Under Petitioners’

Proposed Test

Petitioners’ proposed test (and the Rapanos

plurality’s test from which it is derived) would deny

CWA jurisdiction to the majority of the nation’s

wetlands.

The first step of Petitioners’ proposed test borrows

from the Rapanos plurality’s reading of the Act, such

that a wetland would qualify for CWA jurisdiction

only if it has a “continuous surface-water connection”

with an adjacent feature ordinarily referred to as a

water. Pet. Br. 22-23; Rapanos, 547 U.S. at 739, 742.2

That requirement could deny federal protection to

more than half of all wetlands in the country,

amounting to more than 60 million acres in the

continental United States, because those wetlands do

not have a continuous surface connection to an

adjacent body of water. Ariel Wittenberg & Kevin

Bogardus, EPA Falsely Claims ‘No Data’ on Waters in

WOTUS

Rule,

POLITICO

(Dec.

11,

2018),

https://bit.ly/3wDzWS3 (citing EPA and Army Corps

of Engineers presentation estimating 51% of wetlands

lack a continuous surface connection because they do

not “directly touch[] a water[] of the U.S.”); EPA,

ECONOMIC ANALYSIS FOR THE PROPOSED “REVISED

DEFINITION OF ‘WATERS OF THE UNITED STATES’” RULE,

at App. F (Nov. 2021) (hereinafter “EPA, ECONOMIC

ANALYSIS”) (estimating 118 million acres of wetlands

in contiguous United States).

As discussed infra (at 33), Petitioners do not explain what

qualifies as a “continuous” surface connection to another water,

including whether such connection must exist always, the

majority of the time, or during certain times of year.

Petitioners’ test also could strip CWA protection

from substantial non-wetland waters.3 Under their

proposed test, a wetland must be adjacent to a feature

Petitioners would describe as a “water.” Pet. Br. 5-6.

Petitioners define a “water” as a “relatively

permanent, standing, or continuously flowing bod[y]

of water” referred to as a water in ordinary parlance.

Pet. Br. 16 (quoting Rapanos, 547 U.S. at 739

(plurality op.)), 5-6. Although Petitioners do not

explain what this means, adopting their definition of

“water” could exclude from CWA protection the more

than 59% of streams in the contiguous United States

that are intermittent or ephemeral, meaning that

they have flowing water seasonally or only after

precipitation events. Lainie R. Levick, et al., THE

ECOLOGICAL AND HYDROLOGICAL SIGNIFICANCE OF

EPHEMERAL AND INTERMITTENT STREAMS IN THE ARID

AND SEMI-ARID AMERICAN SOUTHWEST, EPA, at 5

(Nov. 2008). Lacking a continuous flow year-round,

these intermittent and ephemeral streams—totaling

almost five million miles—would likely fail

Petitioners’ proposed test for CWA jurisdiction. EPA,

ECONOMIC ANALYSIS, at App. F (estimating 4.7 million

miles of intermittent and ephemeral streams).

Regionally, the scale of resources that could lose

federal protection is even more pronounced. In the

Although this case concerns only the proper test for

determining when wetlands are “waters of the United States”

under the Act, Petitioners’ proposed test covers all waters, not

just wetlands. Amici agree with Respondents that the proper test

for non-wetland waters is not before the Court. Resp. Br. 44 n.3.

The Court should reject any effort by Petitioners—whose waters

are part of a larger wetland complex and clearly fall within the

Act’s scope—to use this case as a vehicle through which to

address CWA jurisdiction more broadly. However, because

Petitioners’ proposed test as articulated necessarily impacts nonwetland waters, amici address streams and other waters that

would suffer under Petitioners’ interpretation of the Act.

drier Southwest, more than 80% of all streams are

intermittent or ephemeral. EPA, CONNECTIVITY OF

STREAMS & WETLANDS TO DOWNSTREAM WATERS: A

REVIEW AND SYNTHESIS OF THE SCIENTIFIC EVIDENCE,

at 2-29 (Jan. 2015) (hereinafter “EPA CONNECTIVITY

REPORT”). In Arizona alone, 94% of streams could be

denied protection. Levick, supra, at 5.

If federal protections were removed, the health of

those resources would depend solely on the strength

of state regulation. Unfortunately, state regulation of

water resources is not robust. Fewer than half of the

States even have a permitting program for freshwater

wetlands, let alone effective mechanisms in place for

ensuring that wetlands are adequately protected.

Rebecca L. Kihslinger, WOTUS Proposal Poses

Challenge for States, ENV’T L. INST. (Feb. 18, 2019),

https://bit.ly/38NWu9g. And States often lack

necessary resources and funding to establish

adequate wetland protection programs. A 2015

analysis of state wetland program staffing revealed

that 7 States lacked any staff working on wetland

monitoring and assessment, and another 11 States

had less than one fulltime employee dedicated to

wetland monitoring. Ass’n of State Wetland

Managers, Status and Trends Report on State

Wetland Programs in the United States, at 69

(Mar. 2016), https://bit.ly/3wH7TzK. Many States

also reported loss of funding for state wetland

programs and inadequate training, compounding the

difficulty of establishing the necessary protections for

wetlands at the state level. Id. at 70.

Additionally, in several States that do have

wetland protection programs, there have been recent

efforts to roll back those protections. For instance,

Wisconsin, Michigan, North Carolina, and Indiana

recently passed laws excluding substantial portions of

wetlands from state protections. Kihslinger, supra

(discussing Wisconsin, Michigan, and North

Carolina); Sarah Bowman & London Gibson, “Last

Line of Defense”: New Bill Would Strip Protections for

Many of Indiana’s Wetlands, INDYSTAR (Jan. 25,

2021), https://bit.ly/3NSbC4u; see also New Ohio Law

Eases State Regulation of Some Streams, ASSOCIATED

PRESS (Apr. 25, 2022), https://bit.ly/3GRFgoc

(restricting state regulation of ephemeral streams).

Because most States’ laws are far weaker than the

Act, protections for wetlands, streams, and other

waters would be weakened if CWA jurisdiction were

restricted and federal protections no longer reached

the majority of these waters. Thirty-two States offer

weaker regulatory protections than the Act. Clean

Water Protections, Izaak Walton League of Am.

(“League”), https://bit.ly/3sRsPTt. And another dozen

States are downstream from States where protections

would be weakened if Petitioners’ proposal were

accepted, imperiling the health of their waters as well.

Id. The map below shows in red the States where

protections would be weakened if Petitioners’ position

were adopted. It shows in orange those States

downstream from States with weaker protections.

Only a small handful of States, shown in green, would

likely maintain similar levels of protection of water

resources if CWA jurisdiction were curtailed. Id.4

4 The States shown in red and orange also contain federal lands

downstream from waters that could lose federal protection under

Petitioners’ proposal.

Figure 1: Map Depicting Loss of Water Protections

Source: Clean Water Protections, supra

Even if some States wish to enhance statewide

protections, it would take time to build up those

protections. See Bret Jaspers & Lauren Gilger, Water

Rule Leaves Ephemeral Streams Unprotected, KJZZ

(Jan. 23, 2020), https://bit.ly/3PFonB1 (noting that,

because Arizona has no state regulatory regime, it

could take “several years” to develop state regulations

for ephemeral streams and other waters that could

lose federal protection); Bobby Magill, New Mexico

Says It Can’t Halt Pollution Under Feds’ Water Rule,

BLOOMBERG L. (Sept. 16, 2020), https://bit.ly/3wFdlTT

(explaining there is “no ready substitute under state

laws and budgets to maintain critical surface water

protections provided by the [CWA]”). In the interim,

downstream states and federal waters would lack

protection, and there would be nothing preventing

these waters—as well as the wildlife supported by

these waters—from suffering potentially irreversible

damage.

B. These Waters Are Crucially Important

For Wildlife, Recreational, And Economic

Interests

The health of wetlands and similar resources is

inextricably linked to the health of other waters,

including traditional navigable waters. Narrowing

CWA protections would thus have considerable

downstream impacts on fish, wildlife, and recreation

throughout the United States.

1. As the Court recognized in United States v.

Riverside Bayview Homes, Inc., wetlands “serve

significant natural biological functions, including food

chain production, general habitat, and nesting,

spawning, rearing and resting sites for aquatic

species.” 474 U.S. 121, 134-35 (1985) (internal

quotation marks and alterations omitted). Indeed,

wetlands are critical to maintaining the “chemical,

physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a). Wetlands regulate

waterflow, filter out pollutants, and disperse

sediment. EPA CONNECTIVITY REPORT, at ES-2-4. In

the absence of wetlands, pollutants would flow

unencumbered downstream. Protection of wetlands

and downstream waters thus also impacts the quality

of water used in municipal water supplies and in

agriculture, particularly in the Western United

States. Laurie Alexander, et al., Featured Collection

Introduction: Connectivity of Streams and Wetlands to

Downstream Waters, 54:2 J. AM. WATER RESOURCES

ASS’N 287, 295 (Apr. 2018); Ducks Unlimited,

California Wetlands Straining to Support Drinking

Water, Habitat (Nov. 15, 2021), https://bit.ly/3zDvcOb.

Petitioners claim that wetlands are “not ‘waters’

in their own right” (Pet. Br. 6), but that assertion

ignores hydrological reality. Wetlands—even socalled “isolated” or “non-adjacent” wetlands that lack

a continuous surface connection to another body of

water—can be fundamentally linked to the chemical,

physical, and biological integrity of downstream

waters. EPA CONNECTIVITY REPORT, at ES-3-4. As the

illustration below demonstrates, some isolated

wetlands still maintain subsurface hydrological

connections to streams, rivers, and other bodies of

water. And after precipitation events, overflow from

wetlands can result in temporary, but still significant,

surface water connections between wetlands and

other waters. Alexander, supra, at 289.

Figure 2: Diagram of Hydrologic Flow Paths

Source: Alexander, supra, at 289

Accordingly, studies have shown that isolated

wetlands can “perform all wetland functions, and in

some cases[,] perform as well or better than their nonisolated counterparts” when it comes to creating

habitats for plant, fish, and wildlife. Linda K. Vance,

GEOGRAPHICALLY

ISOLATED

WETLANDS

AND

INTERMITTENT/EPHEMERAL STREAMS IN MONTANA, at

20 (Jan. 2009), https://bit.ly/3yS52GV.

Likewise, intermittent and ephemeral streams

can have important connections to other waters.

These are streams that sometimes flow into other

waters, depending on the season or whether there has

been a recent precipitation event. During times when

these waters are flowing, it is readily evident how

these streams impact the health of downstream

waters.

Figure 3: Comparison of Rillito River in Tucson, Arizona,

Between Dry and Wet Periods

Source: Levick, supra, at 65

Indeed, the majority of tributaries that ultimately

form large rivers are small headwaters made up of

intermittent

and

ephemeral

streams.

EPA

CONNECTIVITY REPORT, at 6-1. The Missouri River, for

example, starts out as a “braid of tiny streams that

you might not even notice or that might appear only a

few weeks out of the year.” Janette Rosenbaum, Think

Water in America Is Clean? That’s a Mistake, League

(Dec. 23, 2020), https://bit.ly/3wMaWXg. Yet, as those

waters flow downstream, they build up to the

impressive Missouri River, which flows through

10 States and parts of Canada. Missouri River,

League, https://bit.ly/3MD1ix5. Under Petitioners’

proposed test, the ephemeral headwaters of the

Missouri River could lose federal protection, allowing

them to be polluted or filled in, eventually degrading

the Missouri River itself.

Similarly, in Montana’s Tongue River Basin, 35%

of waters could lose federal protection if this Court

were to adopt Petitioners’ continuous-surfaceconnection requirement for wetlands and relativelypermanent standard for streams. Br. Amici Curiae

Trout Unlimited, et al., South Carolina Coastal

Conservation League v. Wheeler, No. 2:20-cv-01687DCN, at 27 (D.S.C. July 17, 2020). As the health of

those streams and wetlands degrades, more sediment

would flow downstream, causing increased pollution

in the Tongue River Basin. The Tongue River is an

important tributary to the Yellowstone River, so

pollution in the Tongue River Basin would inevitably

degrade the majestic Yellowstone River. David A.

Peterson, et al., WATER QUALITY IN THE YELLOWSTONE

RIVER BASIN, U.S. DEP’T INTERIOR, at 4 (2004).

Figure 4: Tongue River

Source: Tongue River Reservoir State Park, Montana Fish,

Wildlife & Parks, https://bit.ly/3lBM3IK

The impact of intermittent and ephemeral

streams is particularly pronounced in the drier

Southwest, where these streams are the predominant

type of streams in the region. Alexander, supra, at 293

(describing intermittent and ephemeral streams as

“major driver[s]” in establishing the biological and

chemical integrity of southwestern rivers). Even when

intermittent and ephemeral streams lack surface

water, they often still have water below the ground,

which supports plant and animal life. EPA, ECONOMIC

ANALYSIS FOR THE NAVIGABLE WATERS PROTECTION

RULE: DEFINITION OF “WATERS OF THE UNITED

STATES,”

108

(Jan.

22,

2020),

https://bit.ly/3wC1mrh; EPA CONNECTIVITY REPORT,

at 3-21. It is no surprise, then, that the EPA has time

and time again concluded that wetlands and

intermittent and ephemeral streams “are clearly

connected to downstream waters in ways that

profoundly influence downstream water integrity.”

EPA CONNECTIVITY REPORT, at ES-7; see also id. at

6-10 (“[T]he amount of water or biomass contributed

by a specific ephemeral stream in a given year might

be small, but the aggregate contribution of that

stream over multiple years, or by all ephemeral

streams draining that watershed in a given year or

over multiple years, can have substantial

consequences on the integrity of the downstream

waters.”).

2. The CWA explicitly seeks to “provide[] for the

protection and propagation of fish, shellfish, and

wildlife.” 33 U.S.C. § 1251(a)(2). Yet, fish and other

wildlife depend on the health of waters that could lose

protections under Petitioners’ proposed test. More

than 150 bird species and 200 species of fish rely on

wetlands for their survival. Jared Mott, Saving

Millions of Birds with One Bill, League (May 24,

2021), https://bit.ly/3MD4mJJ.

Trout populations would be particularly harmed

under Petitioners’ proposed interpretation of CWA

jurisdiction. For instance, in Colorado, the Rocky

Mountain Fens are unique environments that foster a

large population of trout and other fish.

Figure 5: Rocky Mountain Fen

Source: Anne Janik, Rocky Mountain Wetland Provides Fentastic Habitat for High Altitude Plants, Wildlife, U.S. Dep’t of

Agric., https://bit.ly/3Ny03z5

These fens are “peat-forming wetlands, created when

wetland plants die leaving mats of dead and decaying

plant matter.” Janik, supra. Because it takes about

2,000 years to accumulate 8 inches of peat, most

Colorado fens are estimated to be 4,000 to 10,000

years old. Id. These precious resources are thus

impossible to replace once damaged. Chief among the

rich plant and animal life fens support are trout,

which thrive in the cool, clean water provided by the

fens. Cally Carswell, Simply Irreplaceable: Wetlands,

Water

Educ.

Colorado

(Jan.

2011),

https://bit.ly/3ah9t3T. Without federal protection,

however, the fens’ water quality would likely degrade,

and the trout population would decline irreversibly.

Trout Unlimited (“TU”), Comments on Waters of the

United States, at 3-4 (Feb. 7, 2022) (explaining the

harm to fens if excluded from CWA jurisdiction for

lacking a continuous surface connection to navigable

waters).

The Rio Grande cutthroat trout also would face

increased threats under more restrictive CWA

jurisdiction. The cutthroat trout population has

declined considerably over the last century and can

now be found in less than 10% of the streams they

used to occupy. TU, Everything You Wanted to Know:

Rio Grande Cutthroat Trout (July 29, 2021),

https://bit.ly/3PDPhJN. But the streams where these

trout currently live are predominantly headwater

streams. Id.

Figure 6: Upper Pecos River in New Mexico

Source: Nicole Cordan, In New Mexico, Pecos River Sustains

Communities, Traditions, and Wildlife, PEW (July 22, 2020),

https://bit.ly/3yTsjZc

These waters already face threats from erosion and

runoff from construction and extractive activities.

Cordan, supra. And, since some of the headwaters are

ephemeral or intermittent, they could be excluded

from CWA protection under Petitioners’ proposed test,

leaving them increasingly vulnerable to increased

pollution. See PECOS RIVER BASIN STUDY – NEW

MEXICO: EVALUATION OF FUTURE WATER SUPPLY AND

DEMAND FOR IRRIGATED AGRICULTURE IN THE PECOS

BASIN IN NEW MEXICO, U.S. DEP’T INTERIOR, at 10

(Sept. 2021).

The Great Smoky Mountains National Park

provides another example of how the loss of CWA

protections would decimate trout populations and

hurt recreational trout fishing. The park’s native

brook trout population faces a dire threat from

increased acidity of the streams in which they live.

Out-of-park wetlands in the area, though not

connected by a surface connection to the streams,

provide an effective buffer for acidity. Nat’l Parks

Conservation Ass’n (“NPCA”), Position on Waters of

the

U.S.

Regulations

(June

12,

2019),

https://bit.ly/3sRgBdI. Without protections for those

wetlands, the likelihood that the streams become too

acidic to support their trout populations would

increase dramatically. Id.

The nation’s waterfowl population also would be

adversely affected under Petitioners’ proposed

approach. Half of all ducks in the United States

originate in one region—the Prairie Pothole Region

located across 5 States in the Upper Midwest.

Figure 7: Prairie Pothole Region

Source: Kate Klaus, The Clean Water Act Flows in a New

Direction, Leaving Wetlands Protection Largely to the States,

YALE ENV’T REV. (May 14, 2019), https://bit.ly/3wB81Ra

This vast region of wetlands, commonly known as

America’s “duck factory,” consists of millions of

shallow depressions left behind by receding glaciers

from the last ice age. Ducks Unlimited, Prairie

Pothole Region, https://bit.ly/3yUwZhu. Millions of

ducks and geese pass through the prairie potholes and

nest in the grasslands. Id. Numerous other bird

species also depend on these prairie potholes. In all,

more than 300 species of wildlife depend on prairie

potholes during their lifespan, whether for breeding,

migration pit stops, or for raising their young. Jared

Mott, Sportsmen and Women Know Prairie Potholes

Too, League (Jan. 15, 2019), https://bit.ly/3PA8JqK.

But, because these wetlands do not contain a

continuous surface connection to a larger body of

water, Petitioners would have them excluded from the

CWA’s protections.5

Another region that would lose significant

protections under Petitioners’ proposed restrictions is

the “River of Grass”—impacting the iconic Everglades

National Park in Florida.

Figure 8: Everglades National Park

Source: Mac Stone, Wetlands in the Everglades (Dec. 12, 2018),

https://bit.ly/3MDOFlf

The Everglades Park is located at the bottom of its

watershed, meaning that its health depends on the

health of its upstream waters. Glenn Watkins, How

the Clean Water Act Protects the River of Grass, Nat’l

5 Unlike

the isolated ponds in SWANCC, the prairie potholes

extend across multiple States and have hydrological connections

to downstream waters that support hundreds of species. Mott,

Sportsmen and Women, supra; J. R. Brooks, et al., Estimating

Wetland Connectivity to Streams in the Prairie Pothole Region,

54 WATER RESOURCES RES. 955, 970-71 (Jan. 2018); Solid Waste

Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531

U.S. 159, 171-72 (2001).

Wildlife

Fed’n

(“NWF”)

(Jan.

2016),

https://bit.ly/39JArki. Because of urban development

over the last century, much of the water that

previously flowed into the Everglades has been

diverted for other uses. Id. Therefore, “[t]he

remaining small streams and wetlands of the

Everglades watershed are more important than ever.”

Id. Yet about half of all rivers, streams, and wetlands

in the Everglades watershed could no longer qualify

for CWA protection under Petitioners’ proposed

approach. See NWF, Comments on Revised Definition

of “Waters of the United States,” at 86 (Apr. 15, 2019)

(explaining that half of all rivers, streams, and

wetlands in the Everglades watershed would lose

protections if CWA jurisdiction eliminated ephemeral

streams and wetlands lacking a continuous surface

connection to other waters); Declaration of Stacy

Woods, ¶¶ 53, 8, Conservation Law Foundation v.

EPA, No. 20-cv-10820-DPW (D. Mass. Oct. 15, 2020)

(hereinafter “Woods Declaration”) (noting that 81% of

wetlands in one of the park’s watersheds lack

continuous surface connections to other waters).

Without federal protections, harmful pollution would

flow into the Everglades, accelerating the park’s loss

of wetlands and imperiling substantial plant and

animal life. NWF, Comments, supra, at 85-86.

3. The degradation of the health of wetlands and

other waters and the ensuing harm to fish and wildlife

would have enormous economic consequences. In

2019, outdoor recreation accounted for $788 billion in

consumer spending in the United States and

supported 5.2 million jobs. Dirk van Duym, Outdoor

Recreation Satellite Account: National and State

Statistics 2012-2019, BUREAU ECON. ANALYSIS, at 3

(2020), https://bit.ly/3myc3FF; News Release: Outdoor

Recreation Satellite Account, U.S. and States, 2019,

BUREAU ECON. ANALYSIS, at Table 4 (Nov. 10, 2019),

https://bit.ly/3xouO3n. In 2016, more than 103 million

Americans participated in wildlife-related recreation.

2016 NATIONAL SURVEY OF FISHING, HUNTING, AND

WILDLIFE-ASSOCIATED RECREATION, U.S. FISH &

WILDLIFE SERV., at 4 (2018). On a state level, too, the

economic impact of outdoor recreation cannot be

overstated. For example, in 2015, recreational angling

in the Driftless Area generated $1.6 billion in

economic benefits to the local economies of Wisconsin,

Iowa, and Minnesota. Donna Anderson, Economic

Impact of Recreational Trout Angling in the Driftless

Area, at 12 (Nov. 2016). Other forms of outdoor

recreation, such as water sports, also contribute

significantly to the nation’s economy. Annually,

Americans spend approximately $137 billion on

kayaking, rafting, canoeing, scuba diving, and other

water and recreation activities. News Release, supra,

at Table 2. These outdoor activities, of course, depend

on the health of the nation’s waters. There can be no

trout angling without abundant trout populations, no

safe swimming in polluted waters, and so on.

Given the devastating impacts of removing CWA

protections from the habitats of trout populations, it

is no surprise that the fishing industry would

especially suffer from adoption of Petitioners’ position.

Over 50 million Americans fished at least once during

2019. 2020 Special Report on Fishing, Outdoor Indus.

Ass’n (July 21, 2020), https://bit.ly/39mpuW7. Fishing

and hunting contribute $200 billion to the economy

annually and support 1.5 million jobs. NWF, et al.,

Hunters and Anglers: Fueling Our Nation’s Economy

and

Paying

for

Conservation

(2014),

https://bit.ly/3wCan3v. This would not be possible

without healthy wetlands, which play a crucial role in

the life cycle of up to 90% of fish caught recreationally,

not to mention 75% of fish and shellfish commercially

harvested. EPA, Economic Benefits of Wetlands (May

2006), at 2 https://bit.ly/3a5DnrA. Wetlands also play

a crucial role in the lifecycle of game species, such as

waterfowl and whitetail deer. Julie M. Sibbing, Down

the Drain: The Destruction of Waters and Wildlife in

the Southwest, NWF, at 5, 7-9 (Nov. 2004); Why

Healthy Wetlands Are Good News for Deer Hunters,

WIS.

WETLANDS

ASS’N

(Nov.

14,

2016),

https://bit.ly/3xf6xN8.

National parks would face unique threats if CWA

jurisdiction were significantly narrowed because

those parks, though federally owned, would be unable

to protect park waters that are downstream from

waters solely under state jurisdiction. National parks

contain more than 150,000 miles of rivers and streams

and more than 4 million acres of water bodies. Nat’l

Park

Serv.

(“NPS”),

Water

Quantity,

https://bit.ly/3LEJQqF. These waters are integral

aspects of many parks; visitors rely on clean water for

drinking, fishing, and swimming, and clean water

supports wildlife habitats and ecosystems. In 2019,

the National Park System received more than

328 million visitors. NPS, 2019 NATIONAL PARK

VISITOR

SPENDING

EFFECTS:

ECONOMIC

CONTRIBUTIONS TO LOCAL COMMUNITIES, STATES, AND

THE NATION, at 10 (2020). Visitors provide significant

economic benefits to the areas surrounding national

parks, contributing $21 billion to the local economy in

regions near parks in 2019. Id. Unsurprisingly,

visitors rank water quality or water access as a topfive most valued attribute for parks. NPCA, Clean

Water for Parks and Communities Restored (Nov. 18,

2021), https://bit.ly/3MDbLss. Without clean water,

visitors cannot fish or engage in other water-based

recreational activities—all of which contributed

almost $24 billion to the economy in 2019. Bureau of

Econ. Analysis, Outdoor Recreation Satellite Account,

U.S. and States, 2019 (Nov. 10, 2020),

https://bit.ly/3Qcn2lE.

Though waters within national parks fall under

other federal authority (54 U.S.C. § 100751(b)), many

water bodies that flow through national parks

originate outside park boundaries. National parks,

therefore, depend on the CWA for protection because

pollution that originates outside of the parks impairs

downstream park waters. Without CWA protection,

the health of these federally owned lands would

depend on the strength of state regulations.

The current health of national park waters

demonstrates that these parks need more (not less)

water protection. Two-thirds of parks already have

impaired waters. Parks with Clean Water Act 303(d)Listed Impairments, NPS (last updated Nov. 29,

2021), https://bit.ly/3MFKoxS (242 out of 430 parks

have water impairments). Much of this impairment

can be linked to out-of-park upstream pollution. For

instance, the Indiana Dunes National Park is home to

the Great Marsh—the biggest internal wetland on the

Lake Michigan shoreline. NPS, Great Marsh Trail,

https://bit.ly/3tmFWwg. The park’s waters are

already 69% impaired, in part because of nearby

industrial activity. NPS, HIS Park Report,

https://bit.ly/3G6IaFj; Brett Chase, Indiana Dunes

Beaches Reopen After U.S. Steel Spills Iron Into Lake

Michigan, CHICAGO SUN TIMES (Sept. 29, 2021),

https://bit.ly/3NsdNfc. Under Petitioners’ proposed

test, at least 39-56% of streams and 86% of wetlands

within one of the park’s watersheds would be denied

CWA protection, likely exacerbating the pollution and

hydrological disturbances in the park’s waters,

including the Great Marsh. Declaration of Kurt

Fesenmyer, ¶ 8, Conservation Law Foundation v.

EPA, No. 20-cv-10820-DPW (D. Mass. Oct. 15, 2020)

(hereinafter “Fesenmyer Declaration”) (noting 39-56%

of streams within the Chicago River watershed are

ephemeral); Woods Declaration ¶¶ 55, 8 (noting 86%

of total wetlands in the Chicago River watershed lack

a continuous surface connection to other waters).

Similarly, in the St. Croix National Scenic Riverway

in Wisconsin and Minnesota, recent external

agricultural and urban development has polluted the

riverway’s waters. ABIGAIL A. TOMASEK, ET AL.,

WASTEWATER INDICATOR COMPOUNDS IN WASTEWATER

EFFLUENT, SURFACE WATER, AND BED SEDIMENT IN

THE ST. CROIX NATIONAL SCENIC RIVERWAY AND

IMPLICATIONS FOR WATER RESOURCES AND AQUATIC

BIOTA, MINNESOTA AND WISCONSIN, 2007–08, U.S.

DEP’T INTERIOR, at 3 (2012). Under Petitioners’ test, at

least 64-77% of streams and 26% of wetlands in the

riverway’s watershed could be denied protections.

Fesenmyer Declaration ¶ 13 (noting 64-77% of

streams within the Namekagon River watershed are

ephemeral); Woods Declaration ¶¶ 58, 8 (noting 26%

of total wetlands in the Namekagon River watershed

lack a continuous surface connection to other waters).

Without CWA protection, the quality of these, and

many other, parks’ waters would inevitably degrade.

In addition to recreational benefits, wetlands

provide economic benefits in the form of critical flood

protection. Wetlands are “natural buffers” capable of

soaking up and storing floodwater. EPA, Economic

Benefits of Wetlands, supra, at 1. A single acre of

wetlands can store about one million gallons (threeacre feet) of water. EPA, Wetlands: Protecting Life and

Property

from

Flooding

(May

2006),

https://bit.ly/3Nse95d. Wetlands release floodwaters

slowly, which reduces downstream damage. EPA,

Economic Benefits of Wetlands, supra, at 1. Indeed,

the fact that some wetlands are not connected

permanently at the surface to another body of water

is what enables them to be important sources of flood

protection by absorbing waters that would otherwise

immediately inundate other areas. Those flood

prevention benefits are far from trivial. During

Hurricane Sandy in 2012, wetlands are estimated to

have prevented $625 million in flood damage.

Siddharth Narayan, et al., The Value of Coastal

Wetlands for Flood Damage Reduction in the

Northeastern USA, NATURE, at 5 (2017). And loss of

wetlands is estimated to have cost the city of Houston,

Texas, more than $600 million in flood damage

between 1992 and 2010. John S. Jacobs, et al., More

Flooding, Fewer Fish: Freshwater Wetland Loss in the

Houston Area, 1992-2010, TEX. A&M, at 2 (2015).

Wetlands also generate economic benefits in the

form of drought relief. During drier periods, wetlands

help to maintain adequate flows of streams and rivers

by slowly releasing water. This helps alleviate

drought conditions, which bring elevated fire risk,

particularly in the Western region of the country.

Joanna Endter-Wada, et al., Protecting Wetlands for

People: Strategic Policy Action Can Help Wetlands

Mitigate Risks and Enhance Resilience, 108 J. ENV’T

SCI. & POL’Y 37 (June 2020). The slow release of

wetlands water also keeps water temperatures cooler

during dry periods, which helps support trout and

other cold water fish populations. See Matthew P.

Jones & William F. Hunt, Stormwater BMPs for Trout

Waters: Coldwater Stream Design Guidance for

Stormwater Wetlands, Wet Ponds, and Bioretention,

N.C. STATE U. COOPERATIVE EXTENSION, at 7 (2008).

The flood and drought protection provided by

wetlands is increasingly critical. As the frequency of

severe weather events increases, loss of wetlands

would undermine efforts to mitigate against damage

even more. Robert Costanza, et al., The Global Value

of Coastal Wetlands for Storm Protection, 70 GLOB.

ENV’T CHANGE 1, 9 (2021). Economic losses in the

United States due to flooding are expected to rise

more than 25% in the next 30 years. Oliver E.J. Wing,

et al., Inequitable Patterns of US Flood Risk in the

Anthropocene, 12 NATURE 156, 157 (Feb. 2022).

Likewise, droughts and wildfires are expected to occur

with increasing frequency and intensity, particularly

in already dry regions like the Southwest. EPA

CONNECTIVITY REPORT, at B-50; Yizhou Zhuang,

Quantifying Contributions of Natural Variability and

Anthropogenic Forcings on Increased Fire Weather

Risk Over the Western United States, 118

PROCEEDINGS OF THE NAT’L ACAD. SCI. 1, at 1

(Sept. 2021).

II. PETITIONERS’ PROPOSED TEST DEFIES

THE

CLEAN

WATER

ACT’S

TEXT,

STRUCTURE, AND PURPOSE

Petitioners’ proposed test could strip critical

protections from an enormous number of wetlands

and other water resources in the United States. Those

practical consequences are grave—grave enough that

Congress could not possibly have intended them. The

text, structure, and purpose of the CWA all confirm

that Petitioners’ proposed test is too restrictive. And

the practical problems with the test provide an

additional reason to reject it.

A. By

Ignoring

Actual

Hydrological

Connections, Petitioners’ Proposed Test

Frustrates The Act’s Text And Statutory

Purpose

1. The Act prohibits unlawful discharges into

“navigable waters.” 33 U.S.C. § 1362(12). “Navigable

waters,” in turn, are defined as “the waters of the

United States, including the territorial seas.” Id.

§ 1362(7). That text is capacious. It reflects Congress’s

intent to extend the Act’s protections broadly, not

narrowly, as Petitioners contend.

Justices of this Court have repeatedly recognized

that the Act’s jurisdiction extends beyond

traditionally navigable waters. In Riverside Bayview,

for example, the Court observed that “the term

‘navigable’ as used in the Act is of limited import”

because Congress “evidently intended . . . to regulate

at least some waters that would not be deemed

‘navigable’ under the classical understanding of that

term.” 474 U.S. at 133. Accordingly, the Court

concluded that reading several provisions of the CWA

in pari materia “suggest[ed] strongly that the term

‘waters’ as used in the Act [did] not necessarily

exclude ‘wetlands.’” Id. at 138 n.11. Indeed, the Court

noted that other provisions of the statute explicitly

define “waters” to include “wetlands.” Id. at 138

(citing 33 U.S.C. § 1344(g)(1)).

Similarly, in his controlling opinion in Rapanos,

Justice Kennedy recognized that “the text [of the

CWA] is explicit in extending the coverage of the Act

to some nonnavigable waters.” 547 U.S. at 768

(Kennedy, J., concurring). Quoting the same CWA

provision cited in Riverside Bayview, he observed that

the provision necessarily defined “navigable waters”

to include more than just “waters ‘presently used’ or

‘susceptible to use’ in interstate commerce.” Id. To

avoid rendering that provision a nullity—a result this

Court seeks to avoid, see, e.g., United States v. Atl.

Rsch. Corp., 551 U.S. 128, 136-37 (2007); United Savs.

Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,

484 U.S. 365, 375 (1988)—the “waters of the United

States” must encompass more than just traditionally

navigable waters.

Petitioners’ test is at odds with Justice Kennedy’s

interpretation, which the Ninth Circuit correctly

applied here. Indeed, Petitioners appear to restrict

the Rapanos plurality’s narrow view of federal

jurisdiction even further. Petitioners would require

that any jurisdictional wetland have a continuous

surface connection to an adjacent “waterbod[y] subject

to Congress’s authority over the channels of interstate

commerce.” Pet. Br. 6. So, if a wetland has a

continuous surface connection to a non-navigable

tributary that in turn connects to a navigable river,

the wetland could be excluded from CWA jurisdiction

under Petitioners’ test, even though it may qualify for

protection under the Rapanos plurality’s reasoning.

Applying Petitioners’ proposed interpretation of CWA

jurisdiction to wetlands and other bodies of water

would thus strip additional waters of federal

protection. This Court should not countenance such a

cramped (and incorrect) reading of the Act’s text.

2. Petitioners’ proposed reading is also

inconsistent with the Act’s structure and purpose.

Congress’s purpose, as reflected in the language of

the Act, was “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s

waters,” 33 U.S.C. § 1251(a), with the goal that “the

discharge of pollutants into the navigable waters be

eliminated by 1985,” id. § 1251(a)(1). The Act is

explicitly aimed at advancing the “protection and

propagation of fish, shellfish, and wildlife” and

promoting “recreation in and on the water.” Id.

§ 1251(a)(2).

In Riverside Bayview, the Court explained that

“Congress chose to define the waters covered by the

Act broadly” because it recognized that the effects of

pollution are far-reaching and that the goal of

“[p]rotection of aquatic ecosystems” thus “demanded

broad federal authority to control pollution.” 474 U.S.

at 132-34. Similarly, in the recent County of Maui

decision, this Court reasoned that reading the Act’s

jurisdiction too narrowly would pervert the structure

of the CWA—which was clearly designed to minimize

the addition of pollutants to the navigable waters.

Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462,

1471-75 (2020).

The test applied by the Ninth Circuit—widely

accepted and long applied by the lower courts—more

faithfully advances these stated goals. It comports

with this Court’s recognition that wetlands can affect

the health of nearby lakes or streams, even when not

connected to such waters on the surface. See Riverside

Bayview, 474 U.S. at 463 (“[W]etlands may affect the

water quality of adjacent lakes, rivers, and streams

even when the waters of those bodies do not actually

inundate the wetlands.”); cf. Cnty. of Maui, 140 S. Ct.

at 1473 (rejecting as too narrow an interpretation of

the CWA that excluded regulation of pollution that

reached navigable waters via groundwaters). And it

recognizes the critical importance that wetlands play

in keeping downstream waters healthy. See Rapanos,

547 U.S. at 779 (Kennedy, J., concurring) (“[W]etlands

can perform critical functions related to the integrity

of other waters—functions such as pollutant trapping,

flood control, and runoff storage.”).

By focusing exclusively on whether there is a

surface connection, however, Petitioners ignore other

connections that may matter more. Taking their

proposal by its own terms, for example, a wetland that

connects to a river six months out of the year—mixing

water and (if they are present) pollutants—may fall

outside the ambit of the Act, even though there is an

obvious hydrological connection that can carry

pollutants. So too a wetland that serves important

drainage and filtering purposes for an adjacent lake,

even though there is a narrow strip of dirt separating

them. Indeed, and as discussed above, there are

millions upon millions of miles of streams, and

millions upon millions of acres of wetlands, that could

lose protection under Petitioners’ proposed reading of

the CWA. See supra, at 7-8. That cannot be what

Congress intended.

B. Petitioners’ Proposed Test Is Unclear

And Unworkable

Petitioners repeatedly claim that their proposed

test is simpler to apply than the “significant nexus”

test applied by the Ninth Circuit. See, e.g., Pet. Br. 47

(“[T]he two-step framework is clear [and] easy to

apply.”); id. at 48 (claiming that Petitioners’ test

“requires only normal visual observation to apply”). In

fact, Petitioners’ proposed test presents several

practical difficulties that their brief ignores.

First, Petitioners insist that the subject wetland

have a “continuous” surface connection to a water. See

Pet. Br. 25-29. But, they nowhere explain what that

means. In the context of water resources, a

“continuous” connection can be difficult to discern and

often depends on the moment of measurement. A

wetland, for example, could have a continuous surface

connection to a river until a hundred-year drought

severs it. Or a wetland might suddenly gain a surface

connection to another body of water thanks to a

hundred-year flood. Petitioners’ test produces

different results, depending on the timing of

assessment and the rainfall conditions preceding

assessment. That inconsistency renders Petitioners’

test unworkable; no property owner can expect

predictable, consistent results as to whether a water

on their property is jurisdictional if the answer

depends on rainfall conditions immediately before the

assessment.

The same ambiguity is present in Petitioners’

definition of a “water” as a “relatively permanent,

standing, or continuously flowing bod[y] of water.”

Pet. Br. 16. The Gila River, for example, runs for some

650 miles through New Mexico and Arizona but can

dry up in the summer if too much of its flow is diverted

for irrigation purposes. See NWF, Comments, supra,

at 34. Under Petitioners’ proposed test, it is unclear

whether this lengthy, interstate river would qualify as

a “water” within the Act’s jurisdiction.

Other aspects of Petitioners’ proposed test present

difficulties. On the one hand, Petitioners characterize

the waters entitled to protection under the CWA as

“traditional navigable waters and intrastate

navigable waters that link with other modes of

transport to form interstate channels of commerce.”

Pet. Br. 42. But, on the very same page of their brief,

they contend that Congress intended to extend its

regulatory power to “that class of pollutant discharges

that would end up in those waters subject to its

channels of commerce power.” Id. (emphasis added).

Discharges of pollutants into waters that are not

“traditional navigable waters” can still “end up” in

“traditional navigable waters”; as discussed above,

the key question is what kind of hydrological

connection exists. See, e.g., Cnty. of Maui, 140 S. Ct.

at 1469. If Congress intended to regulate discharges

of pollution that can reach traditionally navigable

waters—as this Court recognized in County of Maui

(id. at 1473)—then hydrological testing would still be

required to determine whether point-source pollution

flowing through wetlands or streams connects with

those supposedly traditional navigable waters. If the

“significant nexus” test is complex, then Petitioners’

test is equally so.

There is still more to belie the idea that

Petitioners’ test is so “clear.” Pet. Br. 47. Petitioners

seek to define the waters of the United States as

including “intrastate navigable waters that link with

other modes of transport to form interstate channels

of commerce.” Id. at 42. But even some traditionally

navigable waters sometimes lack a “link” to other

waters. And Petitioners do not explain what types of

“links” suffice. Would, for example, recreational

canoers portaging their canoes from one stream to

another qualify as a “link” sufficient to establish

jurisdiction?

In sum, Petitioners ask this Court to adopt a test

for wetlands jurisdiction that is unsupported by the

text, structure, or stated purpose of the Clean Water

Act. And the test they propose presents enormous

practical difficulties in application.

CONCLUSION

The judgment of the Ninth Circuit should be

affirmed.

Respectfully submitted.

JENNIFER S. WINDOM

Counsel of Record

SHIKHA GARG

KRAMER LEVIN ROBBINS RUSSELL LLP

2000 K Street, NW

Washington, DC 20006

(202) 775-4500

jwindom@kramerlevin.com

Counsel for Amici Curiae

June 17, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.