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 United States Court of

Appeals For The Ninth Circuit

BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION OF

CLEAN WATER AGENCIES

IN SUPPORT OF RESPONDENTS

NATIONAL ASSOCIATION OF

CLEAN WATER AGENCIES

Amanda E. Aspatore

General Counsel

1130 Connecticut Ave. N.W.

Suite 1050

Washington, DC 20036

(201) 833-2672

BAKER BOTTS L.L.P.

Alexandra Dapolito Dunn

Counsel of Record

700 K St. N.W.

Washington, D.C. 20001

(202) 639-1324

alexandra.dunn@bakerbotts.

com

Counsel for Amicus Curiae National Association of Clean

Water Agencies

i

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICUS CURIAE .............................. 1

SUMMARY OF ARGUMENT........................................... 3

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

I.

II.

The CWA Is Not an Unlawful Delegation of

Legislative Power to the Agencies ...................... 6

A.

The Act Provides an Intelligible

Principle to Guide its Interpretation ......... 7

B.

Finding a Nondelegation Issue Would

Undo the Act’s Preclusive Effect,

Subjecting Regulated Entities to

Significant Burdens ................................... 10

This Court Should Provide Clarity On

Certain WOTUS Exclusions .............................. 12

A.

The Court Should Clarify That

Groundwater Is Not a WOTUS ................ 12

B.

The Court Must Preserve the

Agencies’ Ability to Exclude Waste

Treatment Systems from CWA

Jurisdiction ................................................. 15

C.

The Exclusion Of Stormwater Control

Features from the Scope of CWA

J urisdiction Is Necessary For the

Work of Clean Water Agencies ................ 17

ii

D.

Congress, the Agencies, and the

States

Have

Recognized

the

Importance of the Innovative Water

Management Strategies Fostered by

WOTUS Exclusions ................................... 18

E.

Agency Discretion to Exclude

Features

From

the

WOTUS

Definition Promotes Innovative Water

Management

Strategies

And

Affordability................................................ 22

CONCLUSION .................................................................. 24

iii

TABLE OF AUTHORITIES

PAGE(S)

CASES

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) ....................................................... 11

American Power & Light Co. v. United States

Securities & Exchange Commission,

329 U.S. 90 (1946) ........................................................... 8

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ..................................................10, 11

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ..............................................14, 15

Exxon Corp. v. Train,

554 F.2d 1310 (5th Cir. 1977) ....................................... 14

Gundy v. United States,

139 S. Ct. 2116 (2019) ..................................................... 8

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ......................................................... 7

Mistretta v. United States,

488 U.S. 361 (1989) ......................................................... 6

Ohio Valley Environmental Coalition v. Aracoma

Coal Co.,

556 F.3d 177 (4th Cir. 2009) ......................................... 16

Rapanos v. United States,

547 U.S. 715 (2006) ....................................................9, 13

Rice v. Harken Exploration Co.,

250 F.3d 264 (5th Cir. 2001) ......................................... 14

iv

Solid Waste Agency of Northern Cook County

v. United States Army Corps of Engineers,

531 U.S. 159 (2001) ......................................................8, 9

United States v. Riverside Bayview,

474 U.S. 121 (1985) ......................................................... 9

Whitman v. American Trucking Associations, Inc.,

531 U.S. 457 (2001) ......................................................... 8

STATUTES

33 U.S.C. § 1251(a) ............................................................... 6

33 U.S.C. § 1251(b) ............................................................. 13

33 U.S.C. § 1362(7) ............................................................6, 8

33 U.S.C. § 403 ...................................................................... 7

33 U.S.C. § 1252(a) ........................................................13, 14

33 U.S.C. § 1254(a)(5) ....................................................13, 14

33 U.S.C. § 1256(e)(1) ......................................................... 14

33 U.S.C. § 1281 .................................................................. 19

33 U.S.C. § 1283(f)(2) ......................................................... 20

33 U.S.C. § 1341(a)(1) ......................................................... 13

33 U.S.C. § 1342 ....................................................... 13, 14, 18

33 U.S.C. § 1344(g)–(h) ...................................................... 13

33 U.S.C. § 1377a ................................................................ 20

CODE AND REGULATIONS

42 C.F.R. § 328.3(a) ............................................................ 15

Boston Zoning Code Art. 32 § 32-6 ................................... 21

v

New Jersey Administrative Code, NJDEPN.J.A.C. § 7.8.1.2 .......................................................... 21

OTHER AUTHORIES

45 Fed. Reg. 33,290 (May 19, 1980) .................................. 15

51 Fed. Reg. 41,206 (Nov. 13, 1986) .................................. 15

80 Fed. Reg. 37,059 (Jun. 29, 2015) .............................15, 17

84 Fed. Reg. 4154 (Feb. 14, 2019) ..................................... 22

85 Fed. Reg. 22,250 (Apr. 21, 2020) ....................... 15, 17, 18

86 Fed. Reg. 69,372 (Dec. 7, 2021) ....................... 4, 5, 12, 16

S. Rep. No. 92-414 (1971) ..............................................11, 14

S. Rep. No. 92-1236 (1972) ................................................. 17

S. Rep. No. 95-370 (1977) ................................................... 20

Comments of Sierra Club, Puget Soundkeeper

Alliance, Idaho Conservation League, & Mi

Familia Vota, Proposed Rule, Revised

Definition of “Waters of the United States,”

EPA-HQ-OW-2021-0602-0328 (Feb. 7, 2022) ............ 13

Comments of WWALS Watershed Coalition, Inc.,

Proposed Rule, Revised Definition of “Waters

of the United States,”

EPA-HQ-OW-2021-0602-0551 (Feb. 12, 2022),

Docket ID No. EPA-HQ-OW-2021-0602 ................... 13

EPA, Benefits of Green Infrastructure,

https://www.epa.gov/green-infrastructure/

benefits-green-infrastructure ..................................... 19

EPA, Green Infrastructure, https://www.epa.gov/

green-infrastructure .................................................... 19

vi

EPA, Green Infrastructure Municipal Handbook

(2008), https://www.epa.gov/greeninfrastructure/green-infrastructure-municipalhandbook ....................................................................... 20

EPA, Green Infrastructure Modeling Toolkit,

https://www.epa.gov/water-research/greeninfrastructure-modeling-toolkit .................................. 19

EPA, Managing Wet Weather with Green

Infrastructure: Municipal Handbook –

Incentive Mechanisms,

EPA-833-F-09-001 (Jun. 2009), https://www.epa.

gov/sites/default/files/2015-10/documents/gi_

munichandbook_incentives.pdf ................................... 16

EPA, National Management Measures Guidance to

Control Nonpoint Source Pollution from Urban

Areas (2005),

https://www.epa.gov/sites/production/files/201509/documents/urban_guidance_0.pdf ......................... 20

EPA, National Water Reuse Action Plan:

Collaborative Implementation,

EPA 820-R-20-001 (Feb. 2020),

https://www.epa.gov/sites/default/files/2020-02/

documents/national-water-reuse-action-plancollaborative-implementation-version-1.pdf.............. 21

EPA, National Water Reuse Action Plan: Update on

Collaborative Progress—Year 2 (Mar. 2022),

https://www.epa.gov/system/files/documents/

2022-03/wrap-annual-update_2022.pdf ...................... 21

EPA, Promoting Innovation for a Sustainable Water

Future: Progress Report, EPA-820-F-15-002 (Jul.

2015), https://www.epa.gov/sites/default/files/201507/documents/promoting-innovation-report2015.pdf.......................................................................... 19

vii

U.S. Geological Survey, What is groundwater?,

https://www.usgs.gov/faqs/what-groundwater .......... 14

1

INTERESTS OF AMICUS CURIAE 1

The National Association of Clean Water Agencies

(“NACWA”) is a nonprofit trade association representing

more than 350 municipal clean water agencies that own,

operate, and manage publicly owned treatment works,

wastewater and stormwater sewer systems, water

reclamation districts, and infrastructure relating to all

aspects of wastewater collection, treatment, and disposal.

NACWA submits this brief to help ensure that the

Court preserves two central aspects of current U.S. water

quality regulation: (1) the existence of a federal water

quality regime that displaces what would otherwise be an

ad hoc, activist-driven legal landscape that could cripple

the ability of public agencies to provide affordable and

sustainable clean water services to communities

throughout the country; and (2) the ability of federal

agencies to exclude waters from that regime where doing

so would serve environmental, regulatory, or efficiency

aims.

Some amici urge this Court to curtail the authority of

the U.S. Environmental Protection Agency (“EPA”) and

the U.S. Army Corps of Engineers (“the Corps”)

(collectively, “the Agencies”) to administer the operative

provisions of the Clean Water Act (“CWA” or “the Act”)

based on their own interpretation of constitutional limits

on legislative delegations of authority. However, such a

ruling could undermine or even dismantle the Agencies’

All parties have consented to the filing of this brief. No counsel for a

party authored this brief in whole or in part, nor has such counsel or

any party made a monetary contribution intended to fund the

preparation and submission of this brief. No person other than amicus

curiae and its members have made a monetary contribution to the

preparation and submission of this brief.

1

2

50-year-old regulatory program and dramatically increase

legal uncertainty and risk for NACWA members,

threatening not only their provision of affordable clean

water services, but also their substantial investments in

critical public infrastructure. The CWA’s federal

regulatory scheme, though not perfect, has for years

displaced what could otherwise be a chaotic judicial

patchwork of water quality requirements driven by

plaintiffs’ lawsuits, that is potentially untethered from key

technical, affordability, and feasibility considerations. The

existence of a federal scheme which requires such issues

to be taken into account is vital to NACWA’s members,

who rely on a consistent and predictable regulatory

approach to facilitate their critical work and safeguard

their long-term investments.

Separately, litigants in suits challenging previous

CWA rulemakings have continuously sought to limit the

ability of the Agencies to exclude waters from the

stringent requirements of the Act, even where doing so

would foster improved water management practices,

downstream water quality, and regulatory certainty. Such

limits also threaten the ability of NACWA’s members to

protect public health and the environment and minimize

costs for local communities. It is therefore of equal

importance to NACWA members that this Court preserve

the flexibility of the Agencies to exclude specific

categories of waters from the CWA, and clarify that the

text and structure of the Act actually require that the

Agencies exclude one of these categories of waters –

groundwater.

3

SUMMARY OF ARGUMENT

The legal certainty provided by the Clean Water Act’s

displacement of federal common law tort actions against

clean water utilities, as well as long-standing exclusions of

certain waters from the regulatory definition of “waters of

the United States” (“WOTUS”), are essential to the work

NACWA’s members carry out to protect human health

and the environment and steward public funds. NACWA

submits this brief to provide insight as to how the

structure and jurisdictional reach of the CWA impact the

provision of clean water services and development of

critical infrastructure and to ask this Court to consider

these impacts in resolving the question presented.

This Court should reject the requests of several amici

for it to find that the CWA unlawfully delegates legislative

authority to the Agencies. Such a finding would be in

direct contravention to this Court’s precedent as to the

permissible scope of congressional delegation, which

requires that Congress provide an intelligible principle to

agencies to guide their exercise of discretion in

administering a regulatory system. The CWA clearly

provides such a limiting principle by confining the Act’s

jurisdictional reach to “navigable waters.” Further, a

finding of unlawful delegation of legislative authority

would upend the federal regulatory structure that has for

five decades shielded regulated entities from an

inconsistent, unpredictable, and unworkable patchwork of

activist-driven and judicially created water quality

requirements. The continued operations of clean water

agencies throughout the country depend on this Court’s

clear rejection of these nondelegation arguments. The

Agencies’ half-century history of substantially successful

administration of the CWA, bolstered by guidance from

4

the courts, evidences the fact that there is no

constitutional delegation problem with the CWA.

The Agencies’ long-term administration of the Act has

also fostered the development of significant technical

expertise, which the Agencies have in part applied by

consistently recognizing certain exclusions from the

definition of “waters of the United States.” These

exclusions have facilitated better water management

practices, improved downstream water quality, and

promoted regulatory certainty. They should be recognized

by the Court as it provides guidance on the appropriate

scope of federal CWA jurisdiction.

Of particular import to NACWA’s members are

exclusions for groundwater, waste treatment systems, and

stormwater control infrastructure. NACWA’s members

have long relied on these exclusions to perform essential

wastewater

treatment,

flood,

and

stormwater

management and water conservation activities, including

the implementation of green infrastructure and other

innovative practices that provide important public health

and environmental benefits consistent with the goals of

the CWA.

These exclusions have been embedded as core limits on

the jurisdictional reach of the CWA for decades and

provide vital stability in an ever-shifting regulatory

landscape. In doing so, they help prevent unnecessary

expenditures of limited municipal resources and support

continued efficient and effective water management

operations. NACWA has consistently worked with the

Agencies to improve the clarity of these exclusions, most

recently by submitting comments on the Agencies’

proposed rule to revise their definition of WOTUS. See

Revised Definition of “Waters of the United States,” 86

5

Fed. Reg. 69,372 (Dec. 7, 2021), Docket No. EPA-HQ-OW2021-0602.

In considering the bounds of the CWA’s reach,

NACWA asks that this Court recognize that one of these

key excluded categories—groundwater—is not a

“navigable water” subject to federal CWA jurisdiction and

reject any formulation of a WOTUS definition that would

prevent the Agencies from implementing other sensible

regulatory exclusions. Such a ruling would provide critical

support to NACWA members’ ability to adopt novel and

advanced technologies that benefit the millions of

American water ratepayers they serve.

6

ARGUMENT

I. THE CWA IS NOT AN UNLAWFUL DELEGATION OF

LEGISLATIVE POWER TO THE AGENCIES

Congress enacted the CWA in 1972 “to restore and

maintain the chemical, physical, and biological integrity of

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

pollution control program that relies on cooperative

federalism for implementation. The Act’s programs to

protect water quality are limited to “navigable waters,”

defined in the Act as “the waters of the United States,

including the territorial seas.” 33 U.S.C. § 1362(7). Several

amici have suggested that, in delegating power to the

Agencies to administer programs for all “waters of the

United States,” Congress has unlawfully granted the

Agencies legislative authority in violation of the

nondelegation doctrine. See Amicus Brief of Liberty

J ustice Center (filed Apr. 14, 2022); Amicus Brief of

Americans for Prosperity Foundation (filed Apr. 14, 2022).

These legal arguments are inherently flawed and should

not be accepted by this Court.

At its core, the nondelegation doctrine seeks to

preserve the constitutional balance of separation of

powers. See Mistretta v. United States, 488 U.S. 361, 371

(1989). However, this doctrine is intended to be used as a

last resort in instances of clear legislative abdication, as it

is a chainsaw rather than a scalpel. This is apparent from

the doctrine’s 85-year history, throughout which this

Court has repeatedly refused to find congressional

delegation to be unconstitutional unless “Congress had

failed to articulate any policy or standard” to confine the

Executive’s discretion. Id. at 373, n.7 (emphasis added).

There is no basis for this Court to take up amici’s

invitation to find an unlawful delegation in the CWA. The

7

Act clearly provides an intelligible principle to shape the

Agencies’ interpretation of their authority by limiting the

Agencies’ jurisdiction to “navigable waters.” 2 This fact is

underscored by the Agencies’ 50 years of implementation

of the Act with direction from the courts.

A holding that the CWA amounts to an unlawful

delegation of congressional authority would be

detrimental to the reliable and affordable provision of

clean water throughout the country. Displacement of a

comprehensive federal regime would resuscitate the

threat of federal common law causes of action against

NACWA’s members, thereby exposing them to an ad hoc

patchwork of judicial water quality requirements that flies

in the face of both clear congressional intent and common

sense. The Court should avoid these consequences by

rejecting amici’s nondelegation arguments.

A. THE ACT PROVIDES AN INTELLIGIBLE PRINCIPLE

TO GUIDE ITS INTERPRETATION

All that is required to withstand a nondelegation

challenge is a demonstration that Congress included “an

intelligible principle to which the person or body

authorized to [exercise the delegated authority] is directed

to conform.” J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394, 409 (1928). Specifically, this Court has found

Congress has used the term “navigable waters” in other contexts as

well, including in determining the extent of the authority of the Corps

of Engineers under the Rivers and Harbors Appropriation Act of

1899, see 33 U.S.C. § 403 (regulating activities in “navigable . . . waters

of the United States”), and in establishing the limits of the jurisdiction

of federal courts conferred by Art. III § 2 of the United States

Constitution over admiralty and maritime cases. While the term has

different meaning depending on its context, it nevertheless has been

consistently held to provide an intelligible principle from which

congressional intent can be gleaned.

2

8

it “constitutionally sufficient if Congress clearly delineates

the general policy, the public agency which is to apply it,

and the boundaries of this delegated authority.” American

Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

Applying this standard, this Court has upheld challenged

delegations made pursuant to the Clean Air Act, see

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 473

(2001), the Public Utility Holding Company Act of 1935,

see Am. Power & Light Co., 329 U.S. at 104–105, and the

Sex Offender Registration and Notification Act, see

Gundy v. United States, 139 S. Ct. 2116, 2129–2130 (2019).

As this Court emphasized in Gundy, “a nondelegation

inquiry always begins (and often almost ends) with

statutory interpretation.” 139 S. Ct. at 2123. The CWA

confines federal authority to “navigable waters,” defined

in section 502(7) of the statute as “waters of the United

States, including the territorial seas.” Previous decisions

of this Court have made clear that both “navigable” and

“waters” impose boundaries on the jurisdictional scope of

the CWA, thereby providing an intelligible principle upon

which the Agencies must base their WOTUS definition.

Consistent with this Court’s observation in Gundy, then,

the nondelegation inquiry for the CWA begins and ends

with the text of the statute.

In Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers (“SWANCC”),

this Court held that Congress’ use of the term “navigable”

in the Act imposed clear limits on the Act’s jurisdictional

reach, having “at least the import of showing us what

Congress had in mind as its authority for enacting the

CWA: its traditional jurisdiction over waters that were or

had been navigable in fact or which could reasonably be so

9

made.” 531 U.S. 159, 172 (2001). 3 These limits are tied to

the Commerce Clause, which serves as the source of

Congress’ power to regulate waters and which thereby

imposes bounds on the Agencies’ authority under the

CWA. Even Justice Kennedy in his Rapanos concurring

opinion reiterated that “the word ‘navigable’ in the Act

must be given some effect,” and that the term “navigable”

constrains the Agencies’ discretion over their

jurisdictional reach by requiring “the existence of a

significant nexus between the wetlands in question and

navigable waters in the traditional sense.” Rapanos v.

United States, 547 U.S. 715, 779 (2006) (Kennedy, J .,

concurring) (emphasis added).

Congress’ use of the term “waters” as a jurisdictional

touchstone also imposes significant limits on the Agencies’

discretion to determine the jurisdictional reach of the

CWA. Under the Act, the Agencies have authority to

regulate “waters” but not lands, and while “the transition

from water to solid ground is not necessarily or even

typically an abrupt one,” the Agencies “must necessarily

choose some point at which water ends and land begins.”

United States v. Riverside Bayview, 474 U.S. 121, 132

(1985). While ultimately this choice is informed by the

Agencies’ expertise, see id. at 134, it is also guided by

“legislative history and underlying policies of [the

Agencies’] statutory grants of authority,” id. at 132.

The Court also specifically found that the text of the statute was the

source of these jurisdictional limits: “In order to rule for respondents

here, we would have to hold that the jurisdiction of the Corps extends

to ponds that are not adjacent to open water. But we conclude that the

text of the statute will not allow this.” Solid Waste Agency of N. Cook

Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 168 (2001).

3

10

In limiting the reach of the CWA to “navigable

waters,” then, Congress clearly provided an intelligible

principle upon which to base a WOTUS definition, and this

Court should reject the nondelegation arguments

proffered by amici in this case.

B. FINDING A NONDELEGATION ISSUE WOULD UNDO

THE ACT’S PRECLUSIVE EFFECT, SUBJECTING

REGULATED ENTITIES TO SIGNIFICANT BURDENS

In City of Milwaukee v. Illinois, this Court held that

the CWA displaced federal common law:

Congress has not left the formulation of

appropriate federal standards to the courts

through application of often vague and

indeterminate nuisance concepts and

maxims of equity jurisprudence, but rather

has occupied the field through the

establishment

of

a

comprehensive

regulatory program supervised by an

expert administrative agency. . . . The

establishment of such a self-consciously

comprehensive program by Congress . . .

strongly suggests that there is no room for

courts to attempt to improve on that

program with federal common law.

451 U.S. 304, 317–319 (1981) (emphases added). In

considering the preclusive effect of the CWA, the Court

emphasized the key role of agency expertise in addressing

water pollution control, finding both that “the general area

is particularly unsuited to the approach inevitable under a

regime of federal common law,” and that Congress had

“criticized past approaches” that relied on piecemeal

litigation. Id. at 325.

11

Building on this reasoning in the context of the Clean

Air Act, in American Electric Power Co. v. Connecticut,

this Court reiterated that “[Congress’] delegation is what

displaces federal common law,” and emphasized that

displacing federal common law does not circumvent

judicial review, but rather channels this review to an

assessment of whether an expert agency abused its

discretion under its delegated authority. 564 U.S. 410, 426

(2011) (emphasis added).

Finding a nondelegation issue in this case would

undermine the basis for the CWA’s preclusive effect by

calling into question Congress’ grant of authority to the

Agencies. And relegating federal pollution control to

federal common law would reintroduce the kinds of

“sporadic” and “ad hoc” decision-making that Congress

roundly rejected in enacting the CWA. 4 For example,

Congress carefully constrained the availability of CWA

citizen suits to avoid exposing dischargers to disparate

“court-developed definition[s] of water quality.” See S.

REP. NO. 92-414, at 79-80 (1971). Subjecting NACWA’s

members to such a water quality scheme now would

significantly reduce their ability to plan for the long-term

investments in critical infrastructure necessary for the

continued provision of sustainable, affordable clean water

nationwide.

Reliance on the development of federal common law

would likewise subject regulated entities to the

unpredictability of local courts without the availability of

the administrative protections and opportunities for

engagement offered by federal agency regulation. Nor

would it entail the mandatory consideration of factors such

See City of Milwaukee v. Illinois, 451 U.S. 304, 325 (1981) (citing S.

REP. NO. 92-414 at 95 (1971)).

4

12

as costs, feasibility, and societal impacts which are

ensconced in the CWA’s regime and are so critical to the

work of clean water agencies.

The programs Congress set up in the CWA serve as a

crucial bulwark against piecemeal, time- and resourceconsuming litigation that would untenably interfere with

the public services performed by clean water agencies. In

the face of these significant practical consequences, it is

imperative that this Court not take up amici’s invitation

to find an unlawful delegation of legislative authority.

II. THIS COURT SHOULD PROVIDE CLARITY ON CERTAIN

WOTUS EXCLUSIONS

In defining WOTUS, the Agencies have long

recognized waters which fall outside the scope of the

CWA’s programs. These exclusions are based on a variety

of considerations, from practical concerns related to

administrability to more fundamental limits on the scope

of federal regulatory authority grounded in the language

of the CWA. The Court should take this opportunity to

provide clarity on a number of these exclusions vital to

clean water utilities, specifically, those for groundwater,

waste treatment systems, and stormwater control

features.

A. THE

COURT

SHOULD

CLARIFY

GROUNDWATER IS NOT A WOTUS

THAT

The Agencies’ longstanding position that groundwater

is not a WOTUS stems from both the text and structure of

the Act. As the Agencies’ recent proposed rule reiterates,

“they have never interpreted groundwater [to] be a ‘water

of the United States’ under the Clean Water Act.” 86 Fed.

Reg. at 69,424 n. 47 (2021). Nevertheless, the

13

appropriateness of the Agencies’ position has been

repeatedly called into question. 5

In enacting the CWA, Congress crafted careful limits

on federal authority, preserving significant authority for

the states to control pollution. In its declaration of goals

and policy, Congress explicitly affirmed “the primary

responsibilities and rights of States to prevent, reduce,

and eliminate pollution” and to preserve “land and water

resources.” 33 U.S.C. § 1251(b). This policy is reiterated

throughout the substantive provisions of the CWA. 6 The

regulation of groundwater as a WOTUS would

inappropriately shift the authority of the states in this

regard to EPA and the Corps.

Moreover, it defies logic to include groundwater under

any concept of navigability. Groundwater is “water that

exists underground in saturated zones beneath the land

surface,” moving at “rates of 7-60 centimeters (3-25

See, e.g., Comments of Sierra Club, Puget Soundkeeper Alliance,

Idaho Conservation League, & Mi Familia Vota, Proposed Rule,

Revised Definition of “Waters of the United States,” EPA-HQ-OW2021-0602-0328, at 25 (Feb. 7, 2022); Comments of WWALS

Watershed Coalition, Inc., Proposed Rule, Revised Definition of

“Waters of the United States,” EPA-HQ-OW-2021-0602-0551 (Feb. 12,

2022), Docket ID No. EPA-HQ-OW-2021-0602.

6

See, e.g., 33 U.S.C. §§ 1342(b), 1344(g)–(h) (creating a mechanism for

states to receive delegation of permitting authority and implement

permitting programs); 33 U.S.C. §§ 1252(a), 1254(a)(5) (directing EPA

to address groundwater pollution through information gathering and

coordination with the States); 33 U.S.C. § 1341(a)(1) (imposing a

certification requirement that allows states to prevent the Agencies

from issuing permits that would violate state water quality standards).

See also Rapanos v. United States, 547 U.S. 715, 803 (2006) (Stevens,

J ., dissenting) (assigning states “nearly exclusive responsibility for

containing pollution from nonpoint sources”).

5

14

inches) per day in an aquifer.”7 This water “fills the pores

and fractures in underground materials such as sand,

gravel, and other rock.” 8 It is not, nor can it ever be,

navigable.

This fact is underscored by Congress’ disparate

treatment of “ground waters” and “navigable waters”

throughout the Act, 9 as well as the Act’s legislative history,

which confirms that Congress expressly decided not to

regulate groundwater through the CWA’s federal

pollution control programs. 10 In addition, as the Fifth

Circuit emphasized in Exxon Corp. v. Train, the Act’s

“simple requirement” in 33 U.S.C. § 1342(b)(1)(D) that

EPA find adequate authority “under State law” to “control

the disposal of pollutants into wells” before approving a

state National Pollutant Discharge Elimination System

(“NPDES”) program demonstrates an intent on the part

of Congress to “stop short of establishing federal controls

over groundwater pollution.” 554 F.2d 1310, 1324-1325,

1328 (5th Cir. 1977). 11

This Court, too, has recognized the bifurcated system

Congress established under the CWA for protecting

groundwater and surface water. Cnty. of Maui v. Hawaii

Wildlife Fund, 140 S. Ct. 1462 (2020). County of Maui

found federal authority to regulate discharges conveyed

U.S. Geological Survey, What is groundwater?, https://www.usgs.

gov/faqs/what-groundwater.

8

Id.

9

See, e.g., 33 U.S.C. §§ 1252(a), 1254(a)(5), 1256(e)(1).

10

See S. REP. NO. 92-414 at 73 (1971) (rejecting adoption of “[s]everal

bills pending before the Committee provided authority to establish

Federally approved standards for groundwaters”).

11

See also Rice v. Harken Expl. Co., 250 F.3d 264, 269 (5th Cir. 2001)

(reaffirming that “ground waters are not protected waters under the

CWA”).

7

15

via groundwater to “navigable waters” under certain

circumstances. See id. at 1468. However, treating

groundwater as a method of conveyance is wholly different

from regulating groundwater as a WOTUS itself, and this

Court was careful to draw such a distinction, finding that

“Congress left general groundwater regulatory authority

to the States; its failure to include groundwater in the

general EPA permitting provision was deliberate.” Id. at

1472.

As this Court considers the appropriate scope of

federal CWA jurisdiction, it should take the opportunity

to provide stakeholders with long-sought clarity and hold

that the text and structure of the CWA precludes

groundwater from being included by the Agencies in any

WOTUS definition.

B. THE COURT MUST PRESERVE THE AGENCIES’

ABILITY

TO EXCLUDE WASTE TREATMENT

SYSTEMS FROM CWA JURISDICTION

Since the early days of CWA implementation, the

Agencies have recognized that, at times, waters that could

otherwise be considered “WOTUS” must be excluded

from such a designation where they are part of waste

treatment systems designed to improve downstream

water quality. See 45 Fed. Reg. at 33,424 (specifying in

regulations promulgated in 1980 that “[w]aste treatment

systems, including treatment ponds or lagoons designed

to meet the requirements of CWA . . . are not waters of the

United States”). This exclusion was preserved throughout

the Agencies’ 1986 Rule, see 51 Fed. Reg. at 41,250 (citing

42 C.F.R. § 328.3(a)), 2015 rule, see 80 Fed. Reg. at 37,059

(emphasizing that “waste treatment systems have been

excluded . . . since 1992 and 1979 respectively”), and 2020

Rule, see 85 Fed. Reg. at 22,317 (noting that “exclusions

16

[for] waste treatment systems . . . have been expressly

included in regulatory text for decades”). And the

Agencies’ current proposed rule retains an explicit

regulatory exclusion for waste treatment systems. See 86

Fed. Reg. at 69,385 (“[T]he agencies are proposing to

retain the waste treatment system exclusion . . . from the

1986 regulations.”). Yet, as with groundwater, plaintiff’s

groups have frequently attacked the legality of the waste

treatment system exclusion. See, e.g., Ohio Valley Envtl.

Coal. v. Aracoma Coal Co., 556 F.3d 177, 188 (4th Cir.

2009).

The Agencies’ existing exclusion for waste treatment

systems covers a wide array of water features relied on by

clean water agencies that are designed to enhance surface

water quality, reduce environmental impacts, and

promote water sustainability. These features vary by

facility, but can include constructed wetlands and other

green infrastructure, wastewater collection bins, basins

and channels, cooling ponds, stormwater sedimentation

ponds, low volume waste ponds, and wastewater and

treated water conveyances, such as pipes and channels.

EPA has long recognized the importance of such features

to the efficient and effective treatment and management

of water resources. 12

Notably, waste treatment systems address pollutants

before they are discharged into navigable waters.

However, regulating waste treatment systems as

WOTUS, either in whole or in part, would mandate

application of technological and water quality-based limits

See, e.g., EPA, Managing Wet Weather with Green Infrastructure:

Municipal Handb ook – Incentive Mechanisms, EPA-833-F-09-001

J( un.

2009),

https://www.epa.gov/sites/default/files/2015-10/

documents/gi_munichandbook_incentives.pdf.

12

17

on discharges into the features themselves, thereby

completely precluding their use for treatment. Such a

requirement to treat discharges before they reach a

treatment system would be nonsensical and would have

significant ramifications for clean water agencies that

utilize such systems to meet CWA obligations.

Congress made clear that, while standards of

performance apply to end-of-pipe discharges, facilities

should be left with “the responsibility to achieve the level

of performance by the application of whatever technique

determined availab le and desirab le.” 13 Retaining a

WOTUS exclusion for these systems is essential to enable

clean water utilities to create and implement important

pollution control strategies, consistent with the purpose of

the CWA.

C. THE EXCLUSION OF STORMWATER CONTROL

FEATURES FROM THE SCOPE OF CWA

JURISDICTION IS NECESSARY FOR THE WORK OF

CLEAN WATER AGENCIES

Similar to waste treatment systems, stormwater

control infrastructure includes a wide variety of features

critical to public clean water agencies, including

stormwater retention basins, curbs, gutters, and sewers.

The Agencies have historically not regulated these

features as WOTUS, and in their more recent rulemakings

have recognized the appropriateness of such exclusion.

See, e.g., 80 Fed. Reg. at 37,059 (2015) (reiterating the

Agencies’ intent to retain exclusion of “stormwater control

features constructed to convey, treat, or store

stormwater,” and arguing that “[finding these features

jurisdictional] was never the agencies’ intent”); see also 85

13

S. REP. NO. 92-1236, at 128 (1972) (Conf. Rep.) (emphasis added).

18

Fed. Reg. at 22,323 (2020) (excluding stormwater control

features constructed or excavated in upland or in nonjurisdictional waters to convey, treat, infiltrate, or store

stormwater runoff).

As with waste treatment systems, regulating

stormwater management features as WOTUS makes no

practical sense and would impose additional regulatory

burdens that would interfere with the ability of these

features to perform their intended function. Such a

definition would impose limits on stormwater discharges

into the very features intended to treat and manage them.

See 33 U.S.C. § 1342. Additionally, absent a clear

regulatory exclusion, these features could be subjected to

lengthy and costly jurisdictional determinations, further

increasing the costs for public utilities needing to utilize

them. The Court should therefore uphold the authority of

the Agencies to exclude these features from CWA

jurisdiction.

D. CONGRESS, THE AGENCIES, AND THE STATES HAVE

RECOGNIZED THE IMPORTANCE OF THE

INNOVATIVE WATER MANAGEMENT STRATEGIES

FOSTERED BY WOTUS EXCLUSIONS

Many of the features covered by the WOTUS

exclusions for groundwater, waste treatment systems, and

stormwater control are green infrastructure and other

innovative water management processes employed by

clean water agencies for their human health,

environmental, and societal benefits. Exclusions for such

features from the WOTUS definition support critical

public policy aims acknowledged by Congress and both

state and federal agencies.

Green infrastructure mimics the natural hydrologic

cycle by using natural vegetation to capture and store

19

runoff and allow it to gradually infiltrate into the ground

so as to avoid unnatural flow regimes and erosive flows

that can destroy stream habitat and disrupt aquatic

systems. 14

EPA has explicitly recognized the value of these

practices in managing stormwater and wastewater,

dedicating an entire section of its website to green

infrastructure and its benefits 15 and developing a green

infrastructure modeling toolkit to “incorporate green…

infrastructure practices to help communities manage their

water resources in a more sustainable way.” 16

Congress has likewise demonstrated its clear support

for maintaining and expanding innovative treatment

works, creating a funding program authorizing EPA to

issue grants for construction. See 33 U.S.C. § 1281. This

program includes a wide array of important treatment

strategies, such as “aerated lagoons, trickling filters,

EPA’s Progress Report on Promoting Innovation for a Sustainable

Water Future highlights 10 areas with “the most promising

opportunities to employ technology and institutional innovation to

help solve current water resource issues and promote economic

growth,” which include conserving and reusing water, as well as

improving and greening water infrastructure. See EPA, Promoting

Innovation for a Sustainable Water Future: Progress Report, EPA820-F-15-002 (Jul. 2015), https://www.epa.gov/sites/default/files/201507/documents/promoting-innovation-report-2015.pdf.

15

See EPA, Green Infrastructure, https://www.epa.gov/greeninfrastructure. EPA notes the specific benefits provided by green

infrastructure to water quality and quantity, air quality, climate

resiliency, habitat and wildlife, and communities. See EPA, Benefits

of Green Infrastructure, https://www.epa.gov/green-infrastructure/

benefits-green-infrastructure.

16

See EPA, Green Infrastructure Modeling Toolkit,

https://www.epa.gov/water-research/green-infrastructure-modelingtoolkit.

14

20

stabilization ponds, land application systems, [and] sand

filters.” Id. at 1283(f)(2). 17 Further, Congress explicitly

recognized the value of green infrastructure in the CWA

in 2019, amending the Act to direct EPA to “promote the

use of green infrastructure in, and coordinate the

integration of green infrastructure into, permitting and

enforcement under this chapter, planning efforts,

research, technical assistance, and funding guidance.” Id.

at 1377a.

States, too, recognize, encourage, and at times require

the use of green infrastructure. Multiple EPA guidance

documents describe how these practices can be used at the

local level to protect surface waters by treating runoff

through methods including infiltration, storage, filtration,

and evaporation, 18 and many states encourage or require

the use of green infrastructure to meet groundwater

Strong congressional support for innovative technologies is also

apparent in the Senate Committee Report for the 1977

Amendments—specifically, the Committee Report emphasized that

“[t]he committee intends that all of those involved in implementing the

program—the

Environmental

Protection

Agency,

States,

communities, and consulting engineers—redirect the program away

from the conventional collection and secondary treatment approach

and toward the use of alternative technologies, especially those which

rely on natural systems, such as land or lagoons or marshes, in order

to make use of waste waters.” S. REP. NO. 95-370, COMMITTEE ON

ENV. & PUB. WORKS, at *5 (Jul. 19, 1977).

18

See, e.g., EPA’s Green Infrastructure Municipal Handbook (2008),

https://www.epa.gov/green-infrastructure/green-infrastructuremunicipal-handbook; see also EPA’s National Management

Measures Guidance to Control Nonpoint Source Pollution from

Urb an Areas, at Chapter 5 (2005), https://www.epa.gov/

sites/production/files/2015-09/documents/urban_guidance_0.pdf.

17

21

recharge, stormwater runoff quantity, and stormwater

runoff quality standards. 19

In addition to green infrastructure, clean water

agencies also rely on WOTUS exclusions when utilizing

water reuse and recycling practices for aquifer recharge.

During that process, treated water is conveyed

underground to replenish groundwater stored in aquifers

for beneficial purposes, especially to supplement drinking

water supplies. Such recycling projects are engineered,

designed, and operated to treat and attenuate pollutants

and abate their discharge into surface waters.

EPA’s Water Reuse Action Plan (“WRAP”)

acknowledges the important role water reuse and

recycling can play in supplementing drinking water

supplies. 20 Likewise, recycled water can also be reused for

other applications such as irrigation. As EPA’s WRAP

See, e.g., New J ersey Administrative Code, NJ DEP-N.J.A.C.

§ 7.8.1.2 (defining green infrastructure to mean stormwater

management measures “that manage stormwater close to its source

either by . . . infiltration into subsoil, treat[ment] . . . by vegetation or

soil, or stor[age] . . . for reuse”); see also, Boston Zoning Code Art. 32

§ 32-6 (requiring certain development projects in the Groundwater

Conservation Overlay District to “promote infiltration of rainwater

into the ground by capturing within a suitably-designed system a

volume of rainfall on the lot equivalent to no less than 1.0 inches across

. . . that portion of the surface area of the lot to be occupied by the

Proposed Project”).

20

EPA, National Water Reuse Action Plan: Collab orative

Implementation (“WRAP”), EPA 820-R-20-001 (Feb. 2020),

https://www.epa.gov/sites/default/files/2020-02/documents/nationalwater-reuse-action-plan-collaborative-implementation-version-1.pdf.

In addition, a recent WRAP progress update indicates the specific

accomplishments of the WRAP program, highlighting advance reuse

projects. EPA, National Water Reuse Action Plan: Update on

Collab orative Progress—Year 2 (Mar. 2022), https://www.epa.gov/

system/files/documents/2022-03/wrap-annual-update_2022.pdf.

19

22

explains, such reuse can help reinforce water

sustainability, resilience, and security in communities. 21

E. AGENCY DISCRETION TO EXCLUDE FEATURES

FROM THE WOTUS DEFINITION PROMOTES

INNOVATIVE WATER MANAGEMENT STRATEGIES

AND AFFORDABILITY

Preserving Agency flexibility to promulgate and

broadly implement exclusions from the WOTUS definition

is key to fostering innovative water management

strategies. As EPA noted in a recent rulemaking, various

control features “have evolved considerably over the past

several years, and their nomenclature is not consistent,”

so a flexible regulatory approach is essential for

appropriately addressing the “diverse range of

[innovative] features that are currently in place and may

be developed in the future.”22

Arbitrarily limiting exclusions risks omitting critical

components, creating uncertainty based on inconsistent

terminology, and hampering the development and

implementation of new components. By contrast, clear

exclusion of innovative practices from the WOTUS

definition allows for investment in them.

Investments in critical infrastructure, technologies,

and practices by clean water utilities transform the social,

See WRAP at 7. EPA’s WRAP also emphasizes that “[a] central

tenet of water reuse is that the source of water for potential reuse

must be appropriately treated and verified to meet applicable fit-forpurpose specifications to protect public health, the environment, and

any other particular end user needs or quality endpoint.” Ibid.

(emphasis added). Facilitating innovative treatment technologies is

critical to this effort.

22

Proposed Rule, Revised Definition of “Waters of the United States,”

84 Fed. Reg. 4154, 4192 (Feb. 14, 2019).

21

23

economic, and environmental health of the communities

they serve, but they also require a multi-year planning

horizon dependent on regulatory consistency and

predictability. Appropriate but flexible application of

WOTUS exclusions allow clean water utilities to efficiently

assess federal permitting obligations and develop

infrastructure projects that can meet them in a manner

that minimizes costs and helps keep rates affordable.

24

CONCLUSION

For the foregoing reasons, this Court should preserve

the CWA’s federal regulatory scheme and its critical

preclusive effect, clarify that groundwater is not a

“navigable water,” and preserve the ability of the

Agencies to foster effective, efficient, and innovative water

management practices through the adoption of regulatory

WOTUS exclusions, consistent with the purposes of the

CWA.

Respectfully submitted,

NATIONAL ASSOCIATION

OF CLEAN WATER

AGENCIES

Amanda E. Aspatore

General Counsel

1130 Connecticut Ave.

N.W.

Suite 1050

Washington, DC 20036

(201) 833-2672

June 2022

BAKER BOTTS L.L.P.

Alexandra Dapolito

Dunn

Thomas C. Jackson

Sarah M. Douglas

700 K St. N.W.

Washington, D.C. 20001

(202) 639-1324

Stephanie F. Cagniart

98 San Jacinto

Boulevard

Suite 1500

Austin, TX 78701

(512) 322-2537