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

NO. 21-454

In the

Supreme Court of the United States

MICHAEL SACKETT; CHANTELL SACKETT,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; MICHAEL S. REGAN, ADMINISTRATOR,

________________

Respondents.

ON WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

________________

BRIEF OF AMICUS CURIAE STATE OF

COLORADO IN SUPPORT OF RESPONDENTS

________________

PHILIP J. WEISER

CARRIE NOTEBOOM

Attorney General

First Assistant Attorney

General

ERIC R. OLSON

ANNETTE M. QUILL

Solicitor General

ENNIFER HUNT

J

Counsel of Record

Senior Assistant Attorneys

Office of the Colorado

General

Attorney General

1300 Broadway, 10th

Floor

Denver, Colorado 80203

Eric.Olson@coag.gov

(720) 508-6000

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Whether the Ninth Circuit articulated the

proper test for determining whether wetlands are

“waters of the United States” under the Clean Water

Act, 33 U.S.C. § 1362(7).

ii

TABLE OF CONTENTS

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

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

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 7

ARGUMENT ................................................................ 9

I.

The Clean Water Act created a framework of

cooperative federalism with a robust federal

floor of water quality protection. ...................... 9

II.

The significant nexus test best serves the

text, purpose, and structure of the Clean

Water Act, particularly in the arid west. ....... 13

III.

The question before this Court is limited

and should not be used to announce a broad

change in how the agencies regulate under

the Clean Water Act. ...................................... 25

CONCLUSION .......................................................... 26

iii

TABLE OF AUTHORITIES

Cases

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ........................................... 10, 12

City of Arcadia v. EPA,

411 F.3d. 1103 (9th Cir. 2005) .............................. 10

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981) ............................................... 11

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ..................................... 13, 15

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) ........................................... 10, 11

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ................................................. 9

Missouri v. Illinois,

200 U.S. 496 (1906) ............................................... 11

New Jersey v. New York City,

283 U.S. 473 (1931) ............................................... 11

New York v. New Jersey,

256 U.S. 296 (1921) ............................................... 11

Sackett v. EPA,

No. 19-35469, 8 F.4th 1075 (9th Cir. 2021) .......... 25

iv

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

Corps of Eng’rs,

531 U.S. 159 (2001) ............................................... 15

U.S. v. Hubenka,

438 F.3d 1026 (10th Cir. 2006) ............................. 25

U.S. v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ......................................... 14, 15

Statutes

33 U.S.C. § 1251(a) .................................................... 14

33 U.S.C. § 1251(b) .................................................... 10

33 U.S.C. § 1342(b) .................................................... 21

33 U.S.C. §§ 1344(g), (h) ............................................ 21

33 U.S.C. § 1344(g)(1) ................................................ 23

33 U.S.C. § 1370 ........................................................ 12

Rules

Sup. Ct. R. 37.3(a)........................................................ 1

Regulations

40 C.F.R. §§ 230.10(a), (d) ......................................... 23

40 C.F.R. § 230.70-77 ................................................ 23

40 C.F.R. § 230.91.-98 ............................................... 23

40 C.F.R. § 233........................................................... 21

v

Other Authorities

40 Fed. Reg. 16,713 (April 14, 1975) ......................... 21

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

45 Fed. Reg. 85,336 (Dec. 24, 1980) .......................... 14

47 Fed. Reg. 31,794 (July 22, 1982) .......................... 14

51 Fed. Reg. 41,206-54 (Nov. 13, 1986) .................... 14

53 Fed. Reg. 20,764 (June 6, 1988) ..................... 14, 15

86 Fed. Reg. 69,372 (Dec. 7, 2021) ............................ 26

A. Brown, More States Want Power to Approve

Wetlands Development (May 11, 2022) ................. 22

B. Zollitsch, Cooperative Federalism: Finding the

Right Balance between Federal and State Roles in

Implementing the Clean Water Act, Wetland News,

Vol. 29 No. 3, May/June 2019 ............................... 11

Biological Importance of Ephemeral and Intermittent

Streams and Non-Adjacent Wetlands in Colorado,

Appendix 1 to State of Colorado Comments on

Revised Definition of “Waters of the United

States,” Docket ID No. EPA-HQ-OW-2018-0149

(Apr. 15, 2019) ....................................................... 19

Brewer’s Association, Colorado’s Craft Beer Sales &

Production Statistics, 2021 ..................................... 5

Colo. Const. art. XVI, § 5 & 6 ...................................... 2

vi

Colorado Comments on Revisions to Definition of

Waters of the United States (July 19, 2017) ........... 2

Colorado Department of Public Health and

Environment, Dredge and Fill White Paper No. 1:

Colorado Dredge and Fill Permitting

Considerations in Response to the 2020 Navigable

Waters Protection Rule (Jan. 29, 2021)........... 23, 24

Colorado Department of Public Health and

Environment, Potential for a state regulatory

program ................................................................. 22

Comments of the Northwest Colorado Council of

Governments on Potential Rewrite of the Definition

of “Waters of the United States” (June 19, 2017) .... 5

Comments on the U.S. Environmental Protection

Agency’s and U.S. Army Corps of Engineers’

Proposed Rule Defining Waters of the United

States, Prepared for Western Urban Water

Coalition by ERO Resources Corporation

(Nov. 2014) ............................................................. 24

EPA, The Ecological and Hydrological Significance of

Ephemeral and Intermittent Streams in the

Arid and Semi-Arid American Southwest

(Nov. 2008) ............................................................. 16

Hooley-Underwood et al., Razorback Sucker

Spawning in an Intermittent Colorado Tributary

(2021) ..................................................................... 19

vii

Meyer, R., and A. Robertson, Saint Mary’s University

of Minnesota, Winona, Minnesota, Clean Water

Rule Spatial Analysis: A GIS-based scenario model

for comparative analysis of the potential spatial

extent of jurisdictional and non-jurisdictional

wetlands ................................................................... 4

Minnesota Department of Natural Resources,

Briefing Paper on Clean Water Act Section 404

Assumption in Minnesota (Dec. 2014) .................. 22

More Information Regarding the Science of

Tributaries, Appendix 2 to State of Colorado

Comments on Revised Definition of “Waters of the

United States,” Docket ID No. EPA-HQ-OW-20180149 (Apr. 15, 2019) ........................................ 16, 17

O. A. Houck and M. Rolland, Federalism Federalism

in Wetlands Regulation: A consideration of Clean

Water Act Section 404 and Related Programs to the

States, 54 Md. L. Rev. 1242 (1995) ................. 21, 22

P. J. Weiser, Towards A Constitutional Architecture

for Cooperative Federalism,

79 N.C. L. Rev. 663 (2001) ...................................... 9

S. Rep. No. 92-414 (1972) .......................................... 12

State of Colorado Comments on Proposed Revisions to

Definition of Waters of the United States, Docket

ID No. EPA-HQ-OW-2011-0880 (Nov. 13, 2014).... 2

State of Colorado Comments on Proposed Rule

Defining “Waters of the United States,” Docket ID

Nos. EPA–HQ–OW–2021–0602 and FRL-6027.403-OW (Feb. 7, 2022). .............................................. 2

viii

State of Colorado Comments on Revised Definition of

“Waters of the United States” Docket ID No. EPAHQ-OW-2018-0149 (Apr. 15, 2019)......................... 2

U.S. Army Corps of Engineers, Regulatory Program

Frequently Asked Questions .................................. 22

United States Geological Survey

National Hydrography Dataset........................... 3, 4

1

INTEREST OF AMICUS CURIAE 1

At the Colorado Capitol, it is inscribed on the

walls: “Here is a land where life is written in water.”

Written by one-time Colorado State Poet Laureate

Thomas Hornsby Ferril, this poem exemplifies what

all Coloradoans know: water is intricately connected

to our way of life. Colorado has within its boundaries

the headwaters of five major multistate river systems:

the Platte, the Arkansas, the Republican, the Rio

Grande, and the Colorado. Colorado’s rivers supply

millions of people in nineteen states and Mexico with

water needed for drinking, agriculture, industries,

and recreation. Water from these Colorado headwaters is also critical to the survival of aquatic life and

healthy aquatic ecosystems, including federally endangered species and other species of conservation

concern. As a headwaters state, Colorado brings an

important perspective to the debate over how to define

waters of the United States.

Colorado has a strong interest in the jurisdiction and application of the Clean Water Act for many

reasons. These include protecting water quality, upon

which so much of our economy and quality of life rely;

providing healthy aquatic and wetland habitats for

preserving Colorado’s native species and protecting

recreational and fishing opportunities and industries;

maintaining state control over water rights administration and ensuring our continued ability to allocate

and beneficially use our land and water resources in

1 Rule 37 statement: Petitioners have consented to Colorado filing

an amicus brief in this matter and Respondents have provided

blanket consent. See Sup. Ct. R. 37.3(a).

2

accordance with state law; and promoting agricultural

activities with the regulatory certainty and flexibility

necessary to feed people in Colorado and beyond.

These cornerstone interests have been successfully accommodated by application of the significant nexus

test for determining federal jurisdiction under several

different presidential administrations, which is why

Colorado has consistently advocated for a common

sense reading of the Clean Water Act that includes

federal protections for headwaters streams and wetlands under the significant nexus framework. 2

Colorado also recognizes that managing the use

of land and water resources is a traditional state

power. Indeed, Colorado’s prior appropriation system

for water rights is enshrined in the State’s constitution. Colo. Const. art. XVI, § 5 & 6. At the same time,

because Colorado places such great value on our carefully managed water and aquatic resources, we also

appreciate the important role that the federal government has played for decades under the Clean Water

Act in protecting the quality of our wetlands and

streams, particularly under the Army Corps of Engineers’ dredge-and-fill permitting program.

2 See, e.g., State of Colorado Comments on Proposed Revisions to

Definition of Waters of the United States, Docket ID No. EPA-HQOW-2011-0880 (Nov. 13, 2014); Colorado Comments on Revisions

to Definition of Waters of the United States (July 19, 2017); State

of Colorado Comments on Revised Definition of “Waters of the

United States,” Docket ID No. EPA-HQ-OW-2018-0149 (Apr. 15,

2019); State of Colorado Comments on Proposed Rule Defining

“Waters of the United States,” Docket ID Nos. EPA–HQ–OW–

2021–0602 and FRL-6027.4-03-OW (Feb. 7, 2022).

3

Many of Colorado’s headwaters are small tributaries that run seasonally or only flow in response to

storm events. The United States Geological Survey’s

National Hydrography Dataset estimates that 24 percent of Colorado’s streams are ephemeral, and 45 percent are intermittent, meaning over two-thirds of Colorado’s waters are temporary in nature and lack yearround flow. 3 See Fig. 1.

3 United States Geological Survey’s National Hydrography Da-

taset. Although this data provides the best available estimate of

ephemeral and intermittent stream mileage statewide, it likely

underestimates the true extent of these waters.

4

Fig. 1: Intermittent streams in Colorado based on

USGS National Hydrography Dataset, 2019. This

map does not include ephemeral drainages.

Similarly, a large percentage of Colorado’s wetlands are not connected to perennial streams by surface flow, 4 but have long been recognized as tributaries to downstream waters because of their inextricable

connection to Colorado’s valuable water resources. Cumulatively, these waters can have significant effects

4 A modeling study of the South Platte headwaters, one of Colorado’s seven major watersheds, determined that between 15 and

54 percent of wetlands lacked the types of continuous surface connections to traditionally navigable waters required by Justice

Scalia’s plurality opinion in Rapanos. Meyer, R., and A. Robertson, Saint Mary’s University of Minnesota, Winona, Minnesota,

Clean Water Rule Spatial Analysis: A GIS-based scenario model

for comparative analysis of the potential spatial extent of jurisdictional and non-jurisdictional wetlands (Jan. 16, 2019).

5

on waters at lower elevation that are ultimately used

by the public for domestic water supply, recreation,

and agricultural use. These types of resources could

lose federal protection under a substantially narrowed

test for jurisdiction such as that advocated by the

Sacketts, because they lack continuous surface flows

to more traditionally navigable waters downstream.

Colorado is particularly interested in protection

of our high-quality water resources that support a variety of industries important to our state’s economy.

For example, tourism is the largest employer in the

headwaters region for the Colorado, Gunnison, Yampa

and South Platte river basins. 5 Clean water is the lifeblood of this industry, which includes fishing, hunting,

kayaking, recreation on lakes and reservoirs, wildlife

watching, hiking, and snowmaking for ski resorts.

Other industries that make Colorado a uniquely great

place to live and work also depend on clean water.

Beermaking—from Coors’ iconic brewery in Golden to

hundreds of craft brewers—is part of Colorado’s identity, and craft brewing has an economic impact of $3.4

billion in the state. 6 Brewers need reliable sources of

clean water, and support protections for the water resources that are the key to their success. 7

Nearly half of Colorado’s acreage is dedicated to

farming, ranching, and other agricultural activities

5 Comments of the Northwest Colorado Council of Governments

on Potential Rewrite of the Definition of “Waters of the United

States” (June 19, 2017).

6 Brewer’s Association, Colorado’s Craft Beer Sales & Production

Statistics, 2021 (last visited Jun. 13, 2022).

7 Comments of Allagash Brewing Company, et al., on Revised Def-

inition of “Waters of the United States,” (March 7, 2019).

6

that contribute tens of billions of dollars a year to the

State’s economy. Agriculture provides an example of

an industry that stewards the environment but needs

certainty over what regulations apply to agricultural

lands to allow for efficient operations. 8 Recognizing

these important interests, Colorado has consistently

supported and continues to support practical and necessary exemptions to Clean Water Act permitting for

agricultural activities and exclusion (and further clarification) of prior converted cropland from the Act’s jurisdiction. These limitations reflect a framework that

protects headwater streams and wetlands with a significant nexus to downstream waters.

In short, Colorado’s position as a headwaters

state with strong interests in protecting water quality

and aquatic resources and supporting the needs of agriculture and industry gives it a unique perspective on

how to define the limits of federal Clean Water Act jurisdiction in a way that honors the Act’s text and purpose while protecting state sovereignty over land use,

water rights allocation, and the state’s rights and obligations under interstate compacts and decrees of this

Court equitably apportioning the flows of an interstate

stream.

8 See, e.g., 2018 Comments from Colorado Farm Bureau (noting

clean water is important to all farm families in Colorado and supporting proposal to revert back to the WOTUS rules in place prior

to 2015).

7

SUMMARY OF ARGUMENT

A robust floor of federal water quality protection is central to the cooperative federalism structure

put in place in the Clean Water Act. This structure

recognized the failures of water pollution control legislation in place prior to 1972, when the modern statute was enacted, and replaced the previous ineffective

patchwork of state laws and federal common law. The

Act’s careful balance of state and federal interests incorporates and depends on a strong federal role in setting and enforcing minimum standards for water quality protection.

Exercise of federal jurisdiction over tributaries

and adjacent wetlands, as implemented through the

significant nexus test articulated by Justice Kennedy

in Rapanos, accommodates these carefully balanced

interests and best reflects the text, purpose, and structure of the Clean Water Act. This test is particularly

important in preserving a federal baseline in arid

states like Colorado, where an obvious continuous surface connection to navigable waters may not be present for a large portion of our waters. Replacing that

test with a substantially narrowed test for the scope of

federal jurisdiction would upend settled expectations

and harm states that have relied on the current scope

of the Corps’ dredge and fill program in fashioning

their own water quality protection regimes.

The Court need not articulate a wide-ranging

new test applicable to all surface waters to resolve this

case, which involves a limited question of appropriate

federal jurisdiction over wetlands. EPA and the Corps

are currently engaged in an effort to revise the regulatory definition of “waters of the United States” that

8

will consider a broad range of stakeholder input and

address important legal and scientific nuances among

different categories of water resources. Thus, there is

no need to reach beyond the issue here to announce a

broadly applicable definition for all of the nation’s surface waters.

9

ARGUMENT

I.

The Clean Water Act created a framework

of cooperative federalism with a robust

federal floor of water quality protection.

The Sacketts urge adoption of a categorical rule

that would shift to the states the regulatory burden to

protect many waters—like tributary streams and wetlands—that may not have continuous surface connections to traditional navigable waters yet have undeniable effects on the quality of such waters. This proposed rule conflicts with Congress’ creation of a “regulatory partnership” where both the federal agencies

and states would work together to protect the “waters

of the United States.” See Int’l Paper Co. v. Ouellette,

479 U.S. 481, 489-490 (1987).

The Sacketts and several amici mischaracterize

the nature of the question before the Court. It is not a

choice between either federal jurisdiction or state sovereignty. To the contrary, the Clean Water Act supports overlapping state and federal jurisdiction over

the nation’s waters. The Act is one of the core examples of cooperative federalism, a regulatory structure

where federal and state regulatory regimes complement each other, requiring a baseline of protection but

giving states flexibility on how to meet that baseline.

See Philip J. Weiser, Towards A Constitutional Architecture for Cooperative Federalism, 79 N.C. L. Rev.

663, 665 (2001).

Section 101(b) of the Act recognizes the important role that states play in this cooperative regulatory scheme and makes clear that Congress did not

intend to preempt the entire field. See 33 U.S.C.

10

§ 1251(b). But the Act’s statement that “[i]t is the policy of the Congress 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” does not support the narrow definition of “waters of the United States” advocated by the Sacketts.

Instead, Section 101(b) serves to highlight that it is

the States’ primary responsibility to implement the

baseline protections established under the Act in concert with their own resource management frameworks. See Arkansas v. Oklahoma, 503 U.S. 91, 101

(1992) (the Clean Water Act “anticipates a partnership between the States and the Federal Government,

animated by a shared objective [in Section 101(b)]);

City of Arcadia v. EPA, 411 F.3d. 1103, 1106 (9th Cir.

2005) (states’ Section 101(b) role “in combating pollution” is consistent with CWA’s “goals and policies”).

While Section 101(b) correctly acknowledges

state sovereignty over the development and use of

land and water within each state, this Court has long

recognized that federal standards control pollution of

navigable waters. See Illinois v. City of Milwaukee,

406 U.S. 91, 102 n.3 (1972). Such protection is undermined when the baseline of federal water quality

standards is not applied to all water bodies that have

significant impacts on the quality of traditional navigable waters. Our nation’s waters do not recognize the

invisible boundaries between states. Many of our waters are connected by gravity flow – starting from tributaries and associated wetlands and eventually flowing to our nation’s largest rivers and lakes.

11

Thus, this Court has long recognized a federal

role in controlling water pollution, distinct from water

allocation or other resource management decisions

that are more properly left to the states. Before the

Clean Water Act, abatement of interstate water pollution was addressed by states bringing suits under the

federal common law of nuisance. See Missouri v. Illinois, 200 U.S. 496, 520-21 (1906); New York v. New

Jersey, 256 U.S. 296, 313 (1921); New Jersey v. New

York City, 283 U.S. 473, 481-82 (1931); Illinois v. City

of Milwaukee, 406 U.S. 91, 106 (1972). As this Court

recognized, the 1972 Clean Water Act amendments

that created the current regulatory system displaced

that common law. See City of Milwaukee v. Illinois &

Michigan, 451 U.S. 304, 318 (1981). In doing so, the

Court noted that “Congress’ intent in enacting the

[1972] Amendments was clearly to establish an all-encompassing program of water pollution regulation.”

Id.

With this history as a backdrop, the Clean Water Act, like other federal environmental laws, calls for

a model of cooperative federalism where the federal

agencies help maintain a level regulatory playing field

among the states in helping to define common national

goals while providing support to further those goals.

The Act provides a framework for the federal government to develop policy while relying on states to

“maintain[] the authority to control their own resources in partnership with enforcement and financial

support from the federal government.” 9 The Clean

9 B. Zollitsch, Cooperative Federalism: Finding the Right Balance

between Federal and State Roles in Implementing the Clean Water Act, Wetland News, Vol. 29 No. 3, May/June 2019, at 3.

12

Water Act intentionally creates a uniform “national

floor” of pollution protections by establishing minimum pollution controls for “waters of the United

States,” replacing an ineffective patchwork of state

laws. See 33 U.S.C. § 1370 (requiring states to impose

permit standards no less stringent than EPA’s standards); Arkansas v. Oklahoma, 503 U.S. at 110 (the Act

authorizes EPA “to create and manage a uniform system of interstate water pollution regulation”); S. Rep.

No. 92-414, 92d Cong. 1st Sess. 7 (1972) (prior mechanisms for abating water pollution “ha[d] been inadequate in every vital respect.”).

Thus, the 1972 Act was intended to expand, not

narrow, federal baseline protection of water quality

because prior mechanisms for addressing water pollution at the state level had not solved the nation’s pervasive water pollution problem. But this expansion

does not tread on the states’ ability to administer their

own land and water rights within their borders or impair any state’s rights, duties, or obligations under interstate water compacts and Supreme Court decrees.

States like Colorado successfully work with the federal agencies to administer the Clean Water Act permit programs side by side with their state-specific

laws governing land and water rights. As an example,

Colorado has a well-established water allocation system, enshrined in the state constitution and governed

by a complex statutory process that has successfully

protected water rights holders’ ability to use their

vested water rights alongside robust water quality

protections provided by expansive Clean Water Act jurisdiction.

The Sacketts and their supporting amici seek to

redefine the Act’s cooperative federalism framework

13

in a way that draws an arbitrary line between state

and federal jurisdiction, inevitably resulting in a return to an unworkable patchwork of water quality protection that serves neither federal nor state interests.

Adopting this contorted interpretation of cooperative

federalism would severely undermine the state/federal partnership for water quality protection that Congress envisioned and would lead to diminished water

quality for the nation as a whole.

II.

The significant nexus test best serves the

text, purpose, and structure of the Clean

Water Act, particularly in the arid west.

The Clean Water Act’s text, legislative purpose,

statutory structure, legislative history, and longstanding regulatory practice are all important considerations when determining its meaning. See County of

Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 147073 (2020). The significant nexus test long used by EPA

and the Army Corps of Engineers to determine the

meaning of “waters of the United States”—and thus

the limits of federal regulatory authority—is the

framework most consistent with the language and

structure of the Clean Water Act. And it represents

the best method of protecting the nation’s waters in

states, like Colorado, where traditionally navigable

waters are often connected to wetlands and tributaries

in ways not obvious on the surface.

14

The Clean Water Act’s purpose is “to restore

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

Reaching this goal is dependent on the protection of

all waters with a significant nexus to navigable waterways. An interpretation that would strip federal protections from waters that lack a continuous surface

connection to navigable waters, but which nevertheless have significant impacts on the quality of those

downstream waters, would fundamentally undermine

the basic goal of the Clean Water Act and turn the

statute’s carefully crafted cooperative federalism on

its head. To serve the legislative purpose, the Clean

Water Act must protect all “the Nation’s waters.”

Relying on the Act’s text and purpose, between

the late 1970s and the early 2000s, courts and the

Agencies applied the Act broadly to protect many

kinds of water bodies, including streams and wetlands. See, e.g., U.S. v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 123-24, 131-39 (1985). 10 In 1985, this

10 Regulations issued in 1977 and the 1980s defined the “waters

of the United States” to cover: (1) waters used or susceptible of

use in interstate and foreign commerce, commonly referred to as

navigable-in-fact or “traditionally navigable” waters; (2) interstate waters; (3) the territorial seas; and (4) other waters having

a nexus with interstate commerce. See Permits for Discharges of

Dredged or Fill Material into Waters of the United States, 42 Fed.

Reg. 37,122, 37,144 (July 19, 1977); Guidelines for Specification

of Disposal Sites for Dredged or Fill Material, 45 Fed. Reg.

85,336, 85,346 (Dec. 24, 1980); Interim Final Rule for Regulatory

Programs of the Corps of Engineers, 47 Fed. Reg. 31,794, 31,897

(July 22, 1982); Final Rule for Regulatory Programs of the Corps

of Engineers, 51 Fed. Reg. 41,206, 41,251-54 (Nov. 13, 1986);

Clean Water Act Section 404 Program Definitions and Permit

15

Court recognized that the Clean Water Act extends

federal regulatory jurisdiction over waters and wetlands that “have significant effects on water quality

and the aquatic ecosystem.” Id. at 135 n.9. But this

jurisdiction is not unlimited, and in 2001 this Court

rejected the Corps’ attempt to assert jurisdiction over

an isolated abandoned gravel pit solely because the pit

served as a habitat for migratory birds. In doing so,

the Court recognized that “[i]t was the significant

nexus between the wetlands and ‘navigable waters’

that informed [its] reading of the [Clean Water Act] in

Riverside Bayview Homes.” Solid Waste Agency of N.

Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159,

167 (2001) (“SWANCC”).

Asserting federal jurisdiction over those waters

and wetlands that meet the significant nexus test as

it has developed over the last few decades recognizes

that pollution upstream impacts water downstream

when there is a substantial chemical, physical, or biological connection between those waters, even if that

connection is not continuous or is found in shallow

subsurface flows. 11 Limiting the protections afforded

by the Clean Water Act to situations where the waters

in question are connected by continuous visible

Exemptions; Section 404 State Program Regulations, 53 Fed. Reg.

20,764, 20,765 (June 6, 1988).

11 This does not include true groundwater, as opposed to shallow

subsurface connections between surface waters. The term “waters of the United States” does not include groundwater. See, e.g.,

County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462,

1472 (2020) (noting that in the Clean Water Act “Congress left

general groundwater regulatory authority to the States; its failure to include groundwater in the general EPA permitting provision was deliberate.”).

16

surface flow, as the Sacketts suggest, would effectively

read out federal protections for arid parts of the country, like Colorado, despite the presence of clear, objective markers of a significant nexus between headwater

streams and wetlands and downstream navigable waters. Ephemeral and intermittent waters play a large

collective role in maintaining and defining the physical, chemical, and biological integrity of perennial waters. 12 Impairment or loss of these systems through

unregulated fill or pollution would have considerable

and long-lived negative consequences for fisheries,

ecosystem services, and economies dependent on

them. 13

There is unlikely to always be a bright line between ephemeral and intermittent waters in states

like Colorado. In one year, a stream may appear

ephemeral, and in others it may appear intermittent.

Some streams may appear perennial (flowing for years

at a time) but may lose surface flow during periods of

drought. Particularly in the west and other arid climates, streams and stream reaches may have no surface flow, with a channel morphology indicative of

ephemeral flow, but may flow for years at a time after

large precipitation events fill perched aquifers (which

occur where impermeable layers of rock or sediment

12 See generally EPA, The Ecological and Hydrological Signifi-

cance of Ephemeral and Intermittent Streams in the Arid and

Semi-Arid American Southwest (Nov. 2008).

13 See More Information Regarding the Science of Tributaries, Appendix 2 to State of Colorado Comments on Revised Definition of

“Waters of the United States,” Docket ID No. EPA-HQ-OW-20180149 (Apr. 15, 2019), at 4.

17

hold water above the main water table) that sustain

baseflow in streams thought to be ephemeral. 14

When these streams are flowing, they are easily

identifiable as “waters” that connect downstream. See

Fig. 2. And when they lose flow, these features still

have objective markers of other rivers and streams,

and still play important roles supporting the chemical,

physical, and biological integrity of connected waters.

See Fig. 3. These tributary streams, wetlands, and

open waters in floodplains and riparian areas are connected to and strongly affect the water quality of

downstream traditional navigable waters. For example, these waters provide seasonal runoff which provide critical base flows to downstream waters, and regulate the supply of nutrients and sediments, improving water quality and aquatic ecosystem health in

downstream waters. 15

14 Id. at 1.

15 Id. at 4.

18

Fig. 2: East Fork of McKenzie Creek, near Ridgway

Colorado, May 2015.

Fig. 3: East Fork of McKenzie Creek, near Ridgway

Colorado, December 2015.

19

Similarly, Colorado boasts a plethora of species

of aquatic organisms, including sensitive macroinvertebrates and endangered species of fish and amphibians, that inhabit ephemeral and intermittently flowing streams or wetlands. 16 Streams that flow only seasonally can provide important habitat for aquatic life,

even though they are dry for a significant portion of

the year. Cottonwood Creek in the Gunnison River basin is an example of a snowmelt driven stream that

typically only flows during April through June in

years with near average or above average snowpack.

Despite flowing only seasonally, the creek is used annually by over 10,000 individual at-risk native Bluehead Sucker, Flannelmouth Sucker, and Roundtail

Chub for spawning and larval rearing. Spawning habitats provided by tributaries like Cottonwood Creek

are necessary for the persistence of many western native fishes, especially as water use and biological invasions alter and threaten other habitats that those

fishes use. 17 See Figs. 4 & 5.

16 Biological Importance of Ephemeral and Intermittent Streams

and Non-Adjacent Wetlands in Colorado, Appendix 1 to State of

Colorado Comments on Revised Definition of “Waters of the

United States,” Docket ID No. EPA-HQ-OW-2018-0149 (Apr. 15,

2019).

17 See Hooley-Underwood et al., Razorback Sucker Spawning in

an Intermittent Colorado Tributary (2021).

20

Fig. 4: Cottonwood Creek, Gunnison River Basin,

April 2016.

Fig. 5: Cottonwood Creek, Gunnison River Basin, June

2016.

21

Leaving protection of these waters entirely to

the individual states does not serve the Act’s text,

structure, or purpose. Indeed, upending settled expectations over Clean Water Act jurisdiction with a dramatic change in the operable test would harm Colorado, including serious negative effects on its own efforts to protect the waters within its borders, which

rely on the balanced federal-state partnership created

by the Act.

The federal Act provides that states can administer either the Section 402 NPDES permit program or

the Section 404 dredge and fill permit program if they

meet certain federal requirements under the Act and

receive approval from EPA. 33 U.S.C. §§ 1342(b);

1344(g), (h); see also 40 C.F.R. § 233 (setting forth requirements to assume Section 404 permitting authority). Nearly all states, including Colorado, administer

the Section 402 permit program for point source discharges. See 40 Fed. Reg. 16,713 (April 14, 1975)

(granting Colorado’s request for approval of its program for controlling discharges of pollutants to navigable waters under Section 402(b) of the Act).

By contrast, nearly all states, also including

Colorado, rely on the Army Corps of Engineers to administer the Section 404 program and have not created a comprehensive state program or sought EPA

approval of such a program. In many cases, the cost

and administrative burden of assuming the Section

404 program are prohibitive barriers. 18 Assumption

18 See, e.g., Oliver A. Houck and Michael Rolland, Federalism in

Wetlands Regulation: A consideration of Clean Water Act Section

404 and Related Programs to the States, 54 Md. L. Rev. 1242,

22

requires a complex application process in which a

state must demonstrate regulatory authority equivalent to the federal program, including authority to issue permits, make jurisdictional determinations, process permitting exemptions, enforce the program, and

manage mitigation requirements. Yet the Clean Water Act does not provide any dedicated federal funding

for administration of the Section 404 program. 19 Having the Corps administer a comprehensive program

with a federal floor provides economies of scale in implementation that do not exist at the state level. 20 Finally, the Act requires the Corps to retain exclusive

1280-81 (1995) (describing funding challenges related to Section

404 program assumption efforts by Maryland and North Dakota);

see also Alex Brown, More States Want Power to Approve Wetlands Development (May 11, 2022) (noting that Michigan spends

more than $12 million a year and has more than 80 staffers who

work on Section 404 applications).

19 Minnesota Department of Natural Resources, Briefing Paper

on Clean Water Act Section 404 Assumption in Minnesota (Dec.

2014) at 3.

20 For example, most permits issued by the Corps, including Let-

ters of Permission, Nationwide and General Permits, do not have

a permit fee. Individual Permits have fees of $10 for individuals

and $100 for businesses. See U.S. Army Corps of Engineers, Regulatory Program Frequently Asked Questions, (last visited Jun.

13, 2022).

By contrast, Colorado estimated that it would require annual fees

of $750 for general permits and $10,000 for individual permits to

fund the costs of administering a state-level dredge and fill permitting program to address projects no longer subject to federal

jurisdiction under the narrow definition of “waters of the United

States” put forth in the 2020 Navigable Waters Protection Rule.

See Colorado Department of Public Health and Environment, Potential for a state regulatory program, (last visited Jun. 13, 2022).

23

regulatory oversight for certain “non-assumable” waters, meaning that even successful state assumption

of the federal program does not result in sole state administration. See 33 U.S.C. § 1344(g)(1).

Under the current framework, project sponsors

in the vast majority of states where the Corps administers the Section 404 program know to get their projects permitted through the federal process. For Colorado to establish its own permitting program for fill

activities would require amendment of the Colorado

Water Quality Control Act, promulgation of new regulations, and appropriation of significant funding for

new permitting and mitigation programs. 21 Thus, the

suggestion by some amici that use of the significant

nexus test creates more burdens on states misunderstands the federal-state partnership.

The federal Section 404 permitting program administered by the Corps in Colorado allows for the discharge of dredged or fill material into waters of the

United States under a longstanding federal regulatory

scheme. Permit applicants must describe the likely

pollutants; show that they have worked to avoid impacts to aquatic ecosystems and minimized potential

impacts; and demonstrate that they have provided for

compensatory mitigation for all remaining unavoidable impacts. See 40 C.F.R. §§ 230.10(a) and (d), 230.7077, 230.91-98. In the arid west, this regulatory scheme

effectively steers many project proponents away from

project alternatives that can impact rivers and

21 See Colorado Department of Public Health and Environment,

Dredge and Fill White Paper No. 1: Colorado Dredge and Fill Permitting Considerations in Response to the 2020 Navigable Waters

Protection Rule (Jan. 29, 2021).

24

perennial streams and toward alternatives that involve dry drainages that are isolated from or lack a

significant nexus to traditionally navigable waters. 22

Thus, project sponsors have incentives to avoid impacts to waters and wetlands that connect with downstream resources, and have the ability to get projects

permitted more quickly and with fewer mitigation requirements by avoiding these waters. 23 Under the test

advocated by the Sacketts, Colorado would suddenly

find itself with about 54 percent of its watershed area

unprotected by the federal Section 404 permit program, without an existing state dredge and fill permit

program to replace it. 24

The significant nexus test, as it has long been

applied by the federal agencies, is the most efficient

mechanism for both protecting the nation’s waters and

providing certainty to both states and potential permittees.

22 Comments on the U.S. Environmental Protection Agency’s and

U.S. Army Corps of Engineers’ Proposed Rule Defining Waters of

the United States, Prepared for Western Urban Water Coalition

by ERO Resources Corporation (Nov. 2014), at 4.

23 Id.

24 Colorado Department of Public Health and Environment,

Dredge and Fill White Paper No. 1: Colorado Dredge and Fill Permitting Considerations in Response to the 2020 Navigable Waters

Protection Rule (Jan. 29, 2021), at 6, 9-10.

25

III.

The question before this Court is limited

and should not be used to announce a

broad change in how the agencies regulate

under the Clean Water Act.

The Sacketts have asked this Court to use their

individual challenge to federal jurisdiction over a wetland on their property to announce an entirely new

framework for determining the extent of “waters of the

United States.” But this case is not the appropriate vehicle for upending years of settled regulatory practice

with a new bright line test that could extend to both

wetlands and tributaries. See, e.g., U.S. v. Hubenka,

438 F.3d 1026, 1032 (10th Cir. 2006) (recognizing the

distinction between the isolated gravel pits at issue in

SWANCC and tributaries).

The jurisdictional status of the unnamed tributary to Kalispell Creek adjacent to the Sackett’s property, as a “relatively permanent” water feature, was

apparently not in dispute in the proceedings below.

See Sackett v. EPA, No. 19-35469, 8 F.4th 1075, 1092

(9th Cir. 2021). Thus, to determine the jurisdictional

status of the wetlands that are the subject of EPA’s

order, this Court need only answer the narrow question of how to define the appropriate connection between the wetlands and the tributary to Kalispell

Creek; there is no question that the tributary itself is

properly within the jurisdiction of the Clean Water

Act. The Court need not and should not craft a new

jurisdictional test applicable to features beyond the

wetlands at issue. Restraint is particularly appropriate where the federal agencies are currently engaged

in a rulemaking process that will provide an opportunity to craft a workable rule for all types of

26

waterbodies with the benefit of a full administrative

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

CONCLUSION

The judgment of the Ninth Circuit should be affirmed.

Respectfully submitted,

PHILIP J. WEISER

Attorney General

ERIC R. OLSON

Solicitor General

Counsel of Record

Office of the Colorado

Attorney General

1300 Broadway

10th Floor

Denver, Colorado 80203

Eric.Olson@coag.gov

(720) 508-6000

June 17, 2022

CARRIE NOTEBOOM

First Assistant Attorney

General

ANNETTE M. QUILL

JENNIFER HUNT

Senior Assistant Attorneys

General

Counsel for Amicus Curiae