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.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF RESPONDENTS

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amicus Curiae

June 2022

i

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT .................................... 1

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

I.

The interpretive principle that petitioners

invoke applies only when context indicates that

Congress adopted the well-settled meaning of a

term of art. ........................................................... 4

II. The meaning of “waters of the United States” in

the Clean Water Act is not controlled by the

Rivers and Harbors Act. ...................................... 8

A. The phrase had no well-settled meaning under

the earlier statute. ........................................... 8

B. Statutory language and context confirm that

the Clean Water Act does not mirror section

10 of the Rivers and Harbors Act. ................. 11

CONCLUSION.......................................................... 14

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ............................................... 9

The Daniel Ball,

77 U.S. 557 (1870) ................................................. 8

Fogerty v. Fantasy, Inc.,

510 U.S. 517 (1994) ............................................... 7

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ......................................... 11

George v. McDonough,

596 U.S. __ (2022) .................................................. 5

Gonzales v. Oregon,

546 U.S. 243 (2006) ......................................... 6, 12

Hall v. Hall,

138 S. Ct. 1118 (2018) ....................................... 2, 4

Johnson v. United States,

559 U.S. 133 (2010) ............................................... 6

Kemp v. United States,

596 U.S. __ (2022) ........................................ 5, 8, 11

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ............................................. 6

Northcross v. Bd. of Educ. of Memphis City Schs.,

412 U.S. 427 (1973) ............................................... 7

Rapanos v. United States,

547 U.S. 715 (2006) ......................................... 3, 13

Sanitary Dist. of Chicago v. United States,

266 U.S. 405 (1925) ....................................... 10, 12

iii

Sekhar v. United States,

570 U.S. 729 (2013) ............................................... 4

Smith v. City of Jackson,

544 U.S. 228 (2005) ............................................... 7

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

Army Corps of Eng’rs,

531 U.S. 159 (2001) ............................................... 3

Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive

Cmties. Proj., Inc.,

576 U.S. 519 (2015) ............................................... 7

United States v. Castleman,

572 U.S. 157 (2014) ......................................... 7, 11

United States v. Cleveland Indians Baseball Co.,

532 U.S. 200 (2001) ............................................... 7

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ............................................... 3

United States v. Standard Oil Co.,

384 U.S. 224 (1966) ............................................... 8

United States v. Stoeco Homes, Inc.,

498 F.2d 597 (3d Cir. 1974) ........................... 10, 11

Yellen v. Confed. Tribes of Chehalis Reservation,

141 S. Ct. 2434 (2021) ..................................... 6, 11

Constitutional Provisions, Statutes, and Rules

Clean Water Act, codified as amended at

33 U.S.C. §§ 1251–1387

§ 1251(a) ............................................................... 12

§ 1311 ..................................................................... 3

§ 1344(g) ............................................................... 13

iv

§ 1362(7) ............................................................. 1, 3

§ 1362(12) ............................................................... 3

Rivers and Harbors Act of 1899, ch. 425,

30 Stat. 1121

§ 10, codified at 33 U.S.C. § 403 ..................passim

§ 13, codified at 33 U.S.C. § 407 ............... 8, 10, 14

Other

Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527 (1947)............. 2

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Judicial

Texts (2012) .................................................... 5, 6, 7

INTEREST OF AMICUS CURIAE1

Public Citizen is a consumer advocacy organization

that appears on behalf of its members and supporters

nationwide before Congress, administrative agencies,

and the courts. Much of Public Citizen’s research and

policy work focuses on regulatory matters, and Public

Citizen is often involved in litigation either challenging or defending agency action. Significant questions

of administrative law, and of statutory construction

bearing on the scope of agency authority, are thus central concerns of Public Citizen. Public Citizen has often filed briefs in cases raising such issues. See, e.g.,

West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778

& 20-1780 (brief filed Jan. 25, 2022); Biden v. Texas,

No. 21-954 (briefs filed March 18 and May 9, 2022).

SUMMARY OF ARGUMENT

Petitioners advance a novel construction of the

term “waters of the United States” in the Clean Water

Act, 33 U.S.C. § 1362(7), as the basis for the second

step of a proposed “two-step framework” that would

limit federal regulatory authority under the Act to

“those waterbodies subject to Congress’s authority

over the channels of interstate commerce.” Pet. Br. 5–

6. That limitation, in petitioners’ view, extends “no

farther upstream from traditional navigable waters

than those wholly intrastate waters that, when combined with non-aquatic means of transportation, form

a continuous channel of interstate commerce.” Id. at

7.

––––––––––––––––––––––––

1 This brief was not authored in whole or part by counsel for

a party. No one other than amicus curiae made a monetary contribution to preparation or submission of the brief. Counsel for

all parties have consented in writing to its filing.

2

Petitioners’ argument rests in large part on the assertion that Congress’s use of the term “waters of the

United States” to define the scope of the Clean Water

Act carried with it narrow limits on that term that derive from the use of the same phrase in a statutory

provision enacted decades earlier: section 10 of the

Rivers and Harbors Act of 1899, ch. 425, 30 Stat. 1121,

1151, codified at 33 U.S.C. § 403. Petitioners invoke

the interpretive principle that when statutory language is “obviously transplanted from another legal

source, whether the common law or other legislation,

it brings the old soil with it.” Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L.

Rev. 527, 537 (1947), quoted in Hall v. Hall, 138 S. Ct.

1118, 1128 (2018).

Petitioners, however, ignore key limitations on this

principle, which does not apply when the transplanted

term had no well-settled meaning in the earlier source

or when the language, structure, and context of the

later statute using the term reveal a different meaning. Here, these considerations require rejection of petitioners’ application of the “old soil” maxim and the

construction of “waters of the United States” they derive from it, for two independent reasons: First, when

the Clean Water Act was enacted, the phrase “waters

of the United States” did not have a well-settled meaning that limited its scope to navigable waters that

form parts of interstate transportation networks. Second, explicit statutory text in the Clean Water Act,

and the distinct, congressionally enacted purposes of

that Act, foreclose the inference that the meaning of

the term “waters of the United States” in the Clean

Water Act is limited by whatever scope that term had

in section 10 of the Rivers and Harbors Act.

3

ARGUMENT

The Clean Water Act generally prohibits unpermitted discharges of pollutants, including fill materials, to “navigable waters” from point sources. See 33

U.S.C. §§ 1311, 1362(12). The Act defines the “navigable waters” to which this prohibition applies with a

broad phrase that, tellingly, omits any reference to

navigation or navigability: “The term ‘navigable waters,’ ” the Act states, “means the waters of the United

States, including the territorial seas.” 33 U.S.C.

§ 1362(7). This Court has thus repeatedly recognized

that “the term ‘navigable’ as used in the Act is of limited import” and that the Act’s prohibition of unpermitted discharges extends to “waters that would not

be deemed ‘navigable’ under the classical understanding of that term.” United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133 (1985); see also Solid

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

Eng’rs, 531 U.S. 159, 167–72 (2001); Rapanos v.

United States, 547 U.S. 715, 730–31 (2006) (plurality);

id. at 767–68 (Kennedy, J., concurring in the judgment).

Petitioners, however, advance the view, long rejected by the Court, that regulatory authority under

the Act is limited to waters that are navigable in fact.

Through the second step of their proposed “two-step

test,” petitioners would restrict the Act’s application

to navigable waters that are part of a transportation

network that “form[s] a continuous channel of interstate commerce.” Pet. Br. 7. Central to petitioners’ position is the argument that, in using the apparently

expansive phrase “waters of the United States” to define the “navigable waters” subject to the Act, Congress was incorporating language previously used in

section 10 of the Rivers and Harbors Act of 1899 and,

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hence, adopting the meaning of the phrase as used in

that statute. Petitioners contend that, in the Rivers

and Harbors Act, the phrase “waters of the United

States” was “legislative shorthand for all waters subject to Congress’s power to regulate the aquatic channels of interstate commerce.” Id. at 32. Those waters,

in petitioners’ view, are limited to those that are (or

have been) “navigable in fact” or “could reasonably be

so made.” Id. at 32–33. Invoking this Court’s endorsement of Justice Frankfurter’s view that statutory language derived from prior statutes “brings the old soil

with it,” Hall v. Hall, 138 S. Ct. at 1128, petitioners

conclude that the Clean Water Act’s scope is limited to

navigable waters that are part of an interstate transportation network.

Petitioners’ reliance on this Court’s quotation of

Justice Frankfurter’s observation about statutory “old

soil” is fundamentally misplaced. The phrase “waters

of the United States” was never the “legislative shorthand” that petitioners claim. Moreover, regardless of

the meaning of the phrase in the earlier statute, the

text, structure, context, and explicitly stated statutory

purposes of the Clean Water Act preclude giving the

phrase petitioners’ proposed construction.

I.

The interpretive principle that petitioners

invoke applies only when context indicates

that Congress adopted the well-settled

meaning of a term of art.

As Justice Scalia explained, Justice Frankfurter’s

“old soil” comment “colorfully” expresses the familiar

canon of statutory construction that when Congress

employs “terms of art” with “well-settled meaning,” it

“intends to incorporate” that meaning. Sekhar v.

United States, 570 U.S. 729, 732–33 (2013). That

5

principle applies both to terms that have an established common-law meaning and to statutory terms

that have acquired a settled meaning through judicial

construction or, in some cases, administrative use. See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Judicial Texts 320–33 (2012) (describing “canon of imputed common-law meaning” and

“prior-construction canon”). Construing a statute

based on the established meaning of terms borrowed

from prior statutes that address related subjects is a

specific application of the more general principle that,

where context indicates that a legislature has employed a word with a technical legal meaning (or some

other term of art), its technical sense may prevail over

its ordinary, everyday meaning. See id. at 73, 324. In

other words, a statutory term that has been authoritatively construed “has acquired … a technical legal

sense … that should be given effect in the construction

of later-enacted statutes.” Id. at 324.

This interpretive principle has inherent limits. To

begin with, as this Court has emphasized in its most

recent decisions discussing the subject, “[a]lthough

statutory language ‘obviously transplanted from another legal source’ will often ‘bring the old soil with it,’

that principle applies only when a term’s meaning was

‘well-settled’ before the transplantation.” Kemp v.

United States, 596 U.S. __, __ (2022) (slip op. at 9–10)

(citations omitted). Prior construction is controlling

only to the extent there is a “ ‘prevailing understanding’ of [a] term of art ‘under the law that Congress

looked to when codifying’ it.” George v. McDonough,

596 U.S. __, __ (2022) (slip op. at 11–12). Only in such

circumstances does the “old soil” provide a reliable indication of “the term’s meaning at the time of the

[later] Act’s adoption”—that is, the way “most people

6

then would have understood” it. New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 539 (2019); see also Yellen v.

Confed. Tribes of Chehalis Reservation, 141 S. Ct.

2434, 2445 (2021) (“Ordinarily … this Court reads

statutory language as a term of art only when the language was used in that way at the time of the statute's

adoption.”).

Moreover, even when a statutory word or phrase

had a settled meaning at common law or in a prior

statute, the language, structure, or context of a newer

statute using the same word or phrase may reveal a

different meaning. The principle calling for giving a

statutory word or phrase an established legal meaning

gives way “when the application of other sound rules

of interpretation overcomes this canon.” Scalia & Garner, Reading Law, at 324. Thus, if express language

in a more recent statute is incompatible with giving a

statutory term an established meaning from a prior

statute, the basic principle that the plain meaning of

a statute’s text is controlling, see Yellen, 141 S. Ct. at

2441, will foreclose importation of the interpretation

given to the prior statute.

Statutory context and structure may also weigh decisively against treating a statutory phrase as a term

of art incorporating the meaning given to other statutes using the same phrase. See Yellen, 141 S. Ct. at

2443–44; Johnson v. United States, 559 U.S. 133, 139,

(2010); see also Gonzales v. Oregon, 546 U.S. 243, 282

(2006) (Scalia, J., dissenting) (“We do not force termof-art definitions into contexts where they plainly do

not fit[.]”); Scalia & Garner, Reading Law at 73, 321

(context determines whether a statute uses a term of

art).

7

The relevant context includes statutory purposes

expressly stated in or inferable from the text, as “[t]he

evident purpose of what a text seeks to achieve is an

essential element of context that gives meaning to

words.” Scalia & Garner, Reading Law at 20. And

where it is evident that statutes use the same language to address different subjects or achieve different ends, the construction given them in the earlier

statute is not dispositive. See, e.g., Fogerty v. Fantasy,

Inc., 510 U.S. 517, 522 (1994); see also United States

v. Cleveland Indians Baseball Co., 532 U.S. 200, 213

(2001) (“[T]he meaning of the same words well may

vary to meet the purposes of the law.”). The inference

that Congress intended to adopt the settled meaning

of language used in an earlier statute is more likely to

be appropriate “when Congress uses the same language in two statutes having similar purposes.” Smith

v. City of Jackson, 544 U.S. 228 , 233 (2005) (plurality

opinion); see United States v. Castleman, 572 U.S. 157,

174 (2014) (Scalia, J. concurring in part and in the

judgment) (same); see also Texas Dep’t of Hous. &

Cmty. Affs. v. Inclusive Cmties. Proj., Inc., 576 U.S.

519, 580 (2015) (Alito, J. dissenting) (“[I]dentical language in two statutes having similar purposes should

generally be presumed to have the same meaning.”);

e.g., Northcross v. Bd. of Educ. of Memphis City Schs.,

412 U.S. 427, 428 (1973) (reading language in two

statutes to have the same meaning where “the two

provisions share a common raison d’etre”).

8

II. The meaning of “waters of the United

States” in the Clean Water Act is not

controlled by the Rivers and Harbors Act.

A. The phrase had no well-settled meaning

under the earlier statute.

Petitioners argue that “waters of the United

States” in the Clean Water Act must be given the narrow meaning that they advocate because it was “transplanted” from the Rivers and Harbors Act. That argument, however, fails the most basic requirement of the

interpretative principle on which it rests because the

phrase’s meaning was not “ ‘well-settled’ before the

transplantation.” Kemp, slip op. at 10.

The phrase “waters of the United States,” unlike

the narrower and much more widely used term “navigable waters of the United States,” was seldom used

in legal sources before it appeared in the Clean Water

Act.2 In the Rivers and Harbors Act, the sole statute

petitioners identify that uses the phrase without the

adjective “navigable” modifying “waters,” it appears

only in two clauses in section 10—neither of which

supports petitioners’ claim that the term was “shorthand” for navigable waters forming part of interstate

channels of commerce.

The first clause to use the term appears in section

10’s prohibition of “the creation of any obstruction not

affirmatively authorized by Congress, to the navigable

capacity of any of the waters of the United States.”

––––––––––––––––––––––––

2 For examples of the narrower phrase, see The Daniel Ball,

77 U.S. 557, 563 (1870) (interpreting “navigable waters of the

United States” in 5 Stat. 304 (1838)); United States v. Standard

Oil Co., 384 U.S. 224, 227 (1966) (construing Section 13 of the

Rivers and Harbors Act, 33 U.S.C. § 407, which applies to “navigable waters of the United States” and their tributaries).

9

That provision does not imply that navigability is a

defining feature of all “waters of the United States.”

The provision’s substantive prohibition applies only to

the extent that a particular body of water has some

“navigable capacity” that has been obstructed. The

sentence does not, however, suggest that all “waters

of the United States” are navigable or have the capacity to be so.

The second use of the term “waters of the United

States”—without the adjective “navigable”—occurs in

section 10’s prohibition of the unauthorized building

of structures “in any port, roadstead, haven, harbor,

canal, navigable river, or other water of the United

States, outside established harbor lines, or where no

harbor lines have been established.” In this provision,

“other water of the United States” appears following a

list of specific types of waters that all share the feature

of navigability. As the United States explains, U.S. Br.

46, that particular use of the phrase, in context, was

likely limited to navigable waters under the principle

of ejusdem generis, as a catch-all phrase following a

list of specific items that all share a particular characteristic. See Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 163–64 (2012). But that contextspecific use of “other water of the United States” to refer to other navigable waters does not suggest that the

phrase “waters of the United States” standing alone

was a legal term of art referring only to navigable

channels of commerce.

Because the language of section 10 does not on its

face establish that “waters of the United States” was

a legal term of art with the meaning petitioners ascribe to it, their argument requires a showing that authoritative decisions of this Court, or a body of consistent decisions of lower tribunals, had given a

10

settled meaning to those words by the time Congress

used the phrase in the Clean Water Act. But petitioners point to no such construction. Although this Court

had issued a number of decisions addressing the Rivers and Harbors Act’s use of the term “navigable waters of the United States,” petitioners cite no decisions

in which the Court addressed the meaning of “waters

of the United States” in section 10. In Sanitary District of Chicago v. United States, 266 U.S. 405 (1925),

this Court considered section 10’s prohibition on obstruction of the navigable capacity of “waters of the

United States,” but that decision did not construe the

term “waters of the United States”—likely because no

one would have suggested that the waters whose navigable capacity was allegedly impaired (Lake Michigan and the entire system of lakes, rivers, and harbors

downstream from it) failed to qualify under any possible meaning of the words.

Likewise, petitioners point to no lower-court decisions predating the Clean Water Act that considered,

let alone settled, the meaning of “waters of the United

States” in section 10. Indeed, they cite only one decision that supposedly construed the relevant phrase in

section 10, United States v. Stoeco Homes, Inc., 498

F.2d 597, 608–09 (3d Cir. 1974), and that decision does

not in fact address the term “waters of the United

States.” Rather, Stoeco Homes concerned the clause in

section 10 prohibiting excavation in “any navigable

water of the United States”—not the meaning of the

phrase “waters of the United States” elsewhere in section 10.3 Further, the decision came after the Clean

––––––––––––––––––––––––

3 The case also concerned an alleged violation of section 13 of

the Rivers and Harbors Act, 33 U.S.C. § 407, which likewise uses

(Footnote continued)

11

Water Act’s enactment—too late to have informed

Congress’s choice of words or to have supplied a “settled meaning” that Congress could have adopted. Neither Stoeco Homes nor any other precedent suggests

that the “term’s meaning was ‘well-settled’ before the

transplantation.” Kemp, slip op. at 10 (emphasis

added); see, e.g., Yellen, 141 S. Ct. at 245; Food Mktg.

Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2365

(2019) (rejecting a term-of-art reading absent evidence

of a term’s meaning “at the time of its adoption”).

B. Statutory language and context confirm

that the Clean Water Act does not mirror

section 10 of the Rivers and Harbors Act.

Whatever meaning “waters of the United States”

had in section 10 of the Rivers and Harbors Act, the

context of the phrase’s use in the Clean Water Act does

not support the inference that Congress intended it as

a term of art incorporating its meaning in the earlier

statute. In particular, the express language of the two

statutes refutes any suggestion that its use in each

was aimed at “similar purposes.” Castleman, 572 U.S.

at 174 (Scalia, J., concurring).

The language of section 10 of the Rivers and Harbors Act reflects a singular focus on regulating structures and activities that could threaten to impede navigation. Each of its three parts serves that purpose in

a different manner: The first comprehensively prohibits the creation of any obstruction to the navigable capacity of a body of water; the second prohibits erection

of structures in navigable waterways without authorization from the Secretary of the Army; and the third

––––––––––––––––––––––––

the phrase “navigable waters of the United States” (emphasis

added).

12

prohibits excavation, fill, or other physical alteration

of navigable waters. See 33 U.S.C. § 403. To be sure,

the scope of the statute includes activities outside the

navigable portion of a waterway if they could obstruct

its navigable capacity, as Sanitary District of Chicago

illustrates. See 266 U.S. 405. But its language centers

on protecting navigation. The caption of the section,

as codified, reflects that purpose: “Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in.” 33 U.S.C. § 403.

The Clean Water Act, by contrast, uses the term

“waters of the United States” to define the scope of

regulatory provisions with a much broader purpose

that is expressly stated in the statutory text: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). The objective of restoration and maintenance of “the chemical, physical, and biological integrity of the Nation’s waters” has no necessary relationship to whether a discharge of pollutants into a system

of waterbodies occurs in a part of the system that is a

component in an interstate commercial transportation

network. Congress’s stated objective, therefore, belies

any inference that, in defining the scope of the prohibitions on discharges aimed at achieving that objective, Congress would have chosen to employ a “term of

art” that would limit regulation of discharges using a

criterion wholly unrelated to advancing the law’s

stated purpose—and, indeed, one likely to thwart that

purpose. In Justice Scalia’s words, “[w]e do not force

term-of-art definitions into contexts where they

plainly do not fit.” Gonzales, 546 U.S. at 282 (Scalia,

J., dissenting).

The Clean Water Act’s text also directly forecloses

petitioners’ argument that, in defining the “navigable

13

waters” subject to regulation under the Act as all “waters of the United States,” Congress adopted a term

that excludes all waters that are not components of

interstate commercial transportation networks. As

this Court has recognized, section 404(g) of the Act, 33

U.S.C. § 1344(g), explicitly states that the waters covered by the Act include waters “other than those waters which are presently used, or are susceptible to use

in their natural condition or by reasonable improvement as a means to transport interstate or foreign

commerce.” See Rapanos, 547 U.S. at 731 (plurality).

The Clean Water Act fulfills its stated objective of

“preserving traditional state authority,” Pet. Br. 46,

not by excluding all such other waters from regulation

altogether, but, in part, by allowing states, with approval of the EPA Administrator, to assume administration of the fill-permitting program for waters that

cannot be used for transportation. See 33 U.S.C.

§ 1344(g).

Finally, the error of petitioners’ “old soil” argument

is underscored by their own failure to apply the interpretive principle they advocate in a coherent way.

Even petitioners recognize that limiting the Clean

Water Act to what they claim “waters of the United

States” meant in section 10 of the Rivers and Harbors

Act (i.e., “interstate” navigable waters) would be untenable. They therefore propose broadening their own

invented term of art to include intrastate navigable

waters that are connected to non-aquatic interstate

transport networks. Pet. Br. 39–40. That definition of

“waters of the United States,” however, neither corresponds to any well-settled meaning that Congress

could possibly have adopted when it enacted the Clean

Water Act, nor bears any relationship to the language

or stated objectives of the Act itself. Moreover, that

14

definition was expressly rejected by the plurality opinion in Rapanos. See 547 U.S. at 731 n.3. And it would

have the anomalous effect of making the Clean Water

Act’s prohibition of discharges of pollutants to “waters

of the United States” drastically narrower than the

prohibition of depositing “refuse” into waters (or onto

their banks) in section 13 of the Rivers and Harbors

Act, 33 U.S.C. § 407, which applies both to navigable

waters and their non-navigable tributaries. Adopting

such a construction would overturn the statutory text

and design while (petitioners hope) bolstering petitioners effort to prevail in this case despite the connection between the wetlands on their property and a

tributary of a concededly navigable lake, as well as a

connection to the lake itself.

This Court has recognized repeatedly that the

Clean Water Act’s definition of “navigable waters” as

“the waters of the United States” extends regulation

beyond traditionally navigable waters while retaining

the requirement of some connection to traditional navigable waters. Petitioners’ proposed “two-step framework” would overturn the Court’s repeated holdings.

Because the textual argument that petitioners advance for their “second step” rests solely on a mistaken

invocation of the “old soil” interpretive principle, this

Court should reject petitioners’ misguided “framework.”

CONCLUSION

The Court should affirm the decision of the court of

appeals.

15

Respectfully submitted,

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amicus Curiae

June 2022