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

Supreme Court briefJun 17, 2022

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No. 21-454

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MICHAEL SACKETT & CHANTELL SACKETT,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF FOR AMERICAN SUSTAINABLE

BUSINESS NETWORK, NATIONAL LATINO

FARMERS AND RANCHERS TRADE ASSOCIATION,

ECOLOGICAL RESTORATION BUSINESS

ASSOCIATION, AND CRAFT BREWERS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------MAX E. RODRIGUEZ

ALISON BOROCHOFF-PORTE

POLLOCK COHEN LLP

60 Broad Street, 24th Floor

New York, NY 10004

(212) 337-5361

BENJAMIN D. BATTLES

Counsel of Record

POLLOCK COHEN LLP

50 Lakeside Avenue

Burlington, VT 05401

(802) 793-5512

ben@pollockcohen.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Whether the Ninth Circuit set forth the proper

test for determining whether wetlands are “waters of

the United States” under the Clean Water Act, 33

U.S.C. § 1362(7).

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

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

INTEREST OF AMICI CURIAE .........................

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

ARGUMENT ........................................................

A strong economy depends on plentiful

clean water and a robust and durable

Clean Water Act .........................................

A. Drinking water ....................................

B. Food and beverage ...............................

1. Beer .................................................

2. Seafood ............................................ 12

C. Agriculture .......................................... 14

D. Manufacturing ..................................... 17

E. Outdoor recreation .............................. 18

F. Ecological restoration .......................... 20

G. Real estate ........................................... 23

II.

The Clean Water Act is a comprehensive

law intended to restore and protect the integrity of the nation’s waters .................... 25

A. Text, structure, and history confirm

that wetlands that are chemically,

physically, and biologically connected

to traditionally navigable waters are

covered by the Act ............................... 26

iii

TABLE OF CONTENTS—Continued

Page

B. Petitioners’ proposed test would saddle

businesses with a burdensome patchwork of inconsistent state regulations .... 27

III.

For amici and their members, the benefits

of the robust protection required by the

Clean Water Act outweigh the burdens ..... 32

A. Clear legal guidelines need not come

at the expense of the Act’s critical protections ................................................ 32

B. Petitioners and their amici exaggerate the burdens of complying with the

Act ........................................................ 33

CONCLUSION..................................................... 36

APPENDIX

List of Craft Brewers ........................................... App. 1

TABLE OF AUTHORITIES

Page

CASES

County of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ....................................... 32, 33

Rapanos v. United States,

547 U.S. 715 (2006) .............................. 21, 30, 32, 33

STATUTES

10 U.S.C. § 2694b(a) ....................................................27

33 U.S.C. § 1251(a) .................................................. 3, 26

33 U.S.C. § 1311(a) .................................................. 3, 26

33 U.S.C. § 1362 ...................................................... 3, 26

60 C.F.R. § 58605 (1995) .............................................27

OTHER AUTHORITIES

Alfonso Abeyta, [Clean Water Act] Rule critical

for Colorado, Coyote Gulch (Oct. 27, 2014) ............16

Am. Sustainable Bus. Council, ASBC Says Trump

Administration Finalization of the New Waters of the US Rule is Not Pro-business (Jan.

23, 2020) ..................................................................19

Am. Sustainable Bus. Council, Clean Water in

the Upper Mississippi River Basin: Economic

Importance, Threats, and Opportunities, ASBC

White Paper....................................................... 12, 13

TABLE OF AUTHORITIES—Continued

Page

Am. Sustainable Bus. Council, Comment Letter on Revised Definition of “Waters of the

United States” 84 Fed. Reg. 4154 (Feb. 7,

2022) ............................................................ 14, 17, 23

Am. Sustainable Bus. Council, Hugo Neu at

Kearny Point, Kearny NJ ........................................24

Am. Sustainable Bus. Council, Revised Definition of “Waters of the United States” 84 Fed.

Reg. 4154 (Feb. 14, 2019) ........................................19

Am. Sustainable Bus. Council, Small Business

Owners Favor Regulations to Protect Clean

Water (July 2014) ......................................................6

Am. Sustainable Bus. Council, The Business

Case for EPA Action on Clean Water ................ 15, 17

Brewers Association, Economic Impact .....................10

Brewers Association, National Beer Sales & Production Data ............................................................10

Bureau of Econ. Analysis, Outdoor Recreation

Satellite Account, U.S. and States, 2020 (Nov.

9, 2021) ....................................................................19

Ceres, Feeding Ourselves Thirsty: Tracking Food

Company Progress Toward a Water-Smart Future, Executive Summary (2021) ..............................9

Cong. Rsch. Serv., Redefining Waters of the United

States (WOTUS): Recent Developments (Sept.

30, 2021) ............................................................ 28, 30

TABLE OF AUTHORITIES—Continued

Page

Cong. Rsch. Serv., The Army Corps of Engineers’

Nationwide Permits Program: Issues and

Regulatory Developments (Jan. 2, 2017)................34

David Isaiah, Water, water, everywhere in vehicle

manufacturing, Automotive World (Oct. 6,

2014) .................................................................. 17, 18

Ecological Restoration Bus. Ass’n, Mission and

About Us ..................................................................21

Ecological Restoration Bus. Ass’n, Comment

Letter on Revised Definition of “Waters of the

United States” 84 Fed. Reg. 4154 (Feb. 14,

2022) ............................................................ 21, 31, 32

Env’t Def. Fund, Gulf of Mexico .................................12

EPA and Dep’t of the Army, Economic Analysis

for the Final Rule: Definition of “Waters of the

United States”—Recodification of Pre-Existing Rules Definition, 12 (Sept. 15, 2019) ................30

EPA and Dep’t of the Army, Economic Analysis

for the Navigable Waters Protection Rule:

Definition of “Waters of the United States”

(Jan. 22, 2020) .........................................................35

EPA and Dep’t of the Army, Economic Analysis

for the Proposed “Revised Definition of ‘Waters of the United States’ ” Rule (Nov. 17,

2021) ........................................................................35

EPA and Dep’t of the Army, Resource and Programmatic Assessment for the Navigable Waters Protection Rule: Definition of the “Waters

of the United States” (Jan. 23, 2020) ......................29

vii

TABLE OF AUTHORITIES—Continued

Page

EPA, Factsheet, The Clean Water Rules for:

Communities ...........................................................17

EPA, Geographic Information Systems Analysis

of the Surface Drinking Water Provided by

Intermittent, Ephemeral, and Headwater

Streams in the U.S. (last updated May 28,

2020) ..........................................................................7

EPA, Northern Gulf of Mexico Hypoxic Zone (last

updated on June 9, 2022) ........................................13

EPA, Nutrient Pollution, The Effects: Economy .........13

EPA, The Economic Benefits of Protecting Healthy

Watersheds (Apr. 2021)...................................... 24, 25

Hannah Northey, Exclusive: Trump rule imperils more than 40,000 waterways, E&E News

(March 19, 2021) .....................................................30

J. Mueller & S. Gasteyer, The Widespread and

Unjust Drinking Water and Clean Water Crisis in the United States, 12 Nature Commc’ns,

Article 3544 (2021) ....................................................8

Jason Perkins, Brewmaster, Allagash Brewing

Company, et al., Comment Letter on Revised

Definition of “Waters of the United States” 84

Fed. Reg. 4154 (Feb. 14, 2019) ............................ 9, 11

Jeffrey R. Porter, Yes, Patchwork Makes for Great

Quilts but Not for Environmental Regulation

and PFAS Are No Exception, 12 Nat’l L. Rev.

165 (2021) ................................................................31

viii

TABLE OF AUTHORITIES—Continued

Page

Justin Worland, America’s Clean Water Crisis

Goes Far Beyond Flint, TIME (Feb. 20, 2020) ..........8

Luke and Sally Gran, Clean water can increase

farm profits, grow Iowa’s economy, Des Moines

Marie Ruff, Kearny Point: Flexible, Creative

Workspace for the New Economy, Commercial

Real Estate Development Association Blog

(Nov. 11, 2021) .........................................................24

Matt Gallagher, Half Acre Beer Company, Comment Letter on EPA Evaluation of Existing

Regulations Pursuant to Executive Order

13777 (June 2, 2017) .................................................9

Nat’l Oceanic and Atmospheric Admin., U.S.

Fishing and Seafood Industries Saw Broad

Declines Last Summer Due to COVID-19 (Jan.

15, 2021) ..................................................................12

Prakash Rao et al., Evaluation of U.S. Manufacturing Subsectors at Risk of Physical Water

Shortages, 53 Env’t Sci. Tech. 2295 (2019) .............18

Richard Damania et al., World Bank, Quality

Unknown: The Invisible Water Crisis (2019) ........ 7, 8

Tim Patton, Saint Benjamin Brewing Company,

Comment Letter on EPA Evaluation of Existing Regulations Pursuant to Executive Order

13777 (June 2, 2017) .................................................9

Todd K. BenDor et al., Defining and evaluating

the ecological restoration economy, 23 Restoration Ecology ................................................... 20, 21

TABLE OF AUTHORITIES—Continued

Page

U.S. Army Corps of Eng’rs, Regulatory Program

Frequently Asked Questions ....................................35

U.S. Dep’t of the Interior, Press Release, New 5Year Report Shows 101.6 Million Americans

Participated in Hunting, Fishing & Wildlife

Activities (Sept. 7, 2017) .........................................18

U.S. Fish & Wildlife Serv., 2016 Nat’l Survey

of Fishing, Hunting, and Wildlife-Associated

Recreation ...............................................................18

W. Aaron Jenkins et al., Valuing ecosystem services from wetlands restoration in the Mississippi Alluvial Valley, 69 Ecological Economics

(Nov. 22, 2009) .........................................................22

Whiskey Creek Angus et al., Comment Letter on

Proposed Rule to Revise Definition of “Waters

of the United States” (Feb. 7, 2022) .................. 15, 34

XiaoZhi Lim, Can microbes save us from PFAS?,

Chemical and Engineering News, March 21,

2021 .........................................................................24

INTEREST OF AMICI CURIAE

The American Sustainable Business Network

(ASBN), the National Latino Farmers and Ranchers

Trade Association (NLFR), the Ecological Restoration

Business Association (ERBA), and the Craft Brewers

submit this brief as amici curiae in support of respondents.1

Amici and their members collectively represent

hundreds of thousands of American businesses that

depend on consistent sources of clean water for their

economic success and the health of their communities.

Amici’s members also routinely conduct activities subject to federal regulation under the Clean Water Act.

Amici and their members thus keenly appreciate the

need for both robust protection and jurisdictional clarity under the Act.

ASBN originated in 2022 as a merger of two

longstanding business organizations committed to sustainable and equitable corporate practices—the Social

Venture Network and the American Sustainable Business Council. ASBN develops and advocates solutions

for policymakers, business leaders, and investors that

support an equitable, regenerative, and just economy

that benefits all—people and planet. As a multi-issue

membership organization advocating on behalf of

No party or counsel for a party authored this brief in whole

or in part. No party, counsel for a party, or person other than

amici curiae or their counsel made any monetary contribution intended to fund the preparation or submission of this brief. Petitioners have consented to the filing of this brief, and respondents

have filed a blanket consent with the Clerk.

every business sector, size, and geography, ASBN and

its association members collectively represent over

250,000 businesses.

NLFR provides policy advocacy, farm management and sustainability training, conservation best

practices, and technical assistance that enables Latinos and multiethnic farmworkers, farmers, and ranchers who have been historically discriminated against

to transition and thrive in indigenous, regenerative,

and sustainable farming and ranching operations,

while strengthening and safeguarding our national

food supply system.

ERBA’s mission is to support private investment

in durable environmental results that enable responsible economic growth. First established in 1998 as the

National Mitigation Banking Association, ERBA promotes federal legislation and smart regulatory policies

that encourage and advance compensatory mitigation

and private investment in ecological restoration as the

preferred means to offset adverse impacts to our nation’s natural resources and coastal communities.

The Craft Brewers participate in a coalition of

craft breweries from across the United States. The

Craft Brewers operate businesses dependent on consistent sources of clean water and rely upon the Clean

Water Act to protect their water supply and their business operations.2

The individual breweries that form the coalition are listed

in the Appendix.

Amici, their members, and their communities

stand to be affected by any decision that undermines

the Clean Water Act.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Businesses throughout the United States and

across a wide variety of industries—from brewing to

agriculture to real estate—depend on the Clean Water

Act’s protection of wetlands for their economic success

and the health of their communities.

Congress passed the Clean Water Act “to restore

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

relevant here, the Act prohibits the unpermitted discharge of any pollutant—including “dredged spoil,”

“rock,” and “sand”—into the “waters of the United

States.” 33 U.S.C. §§ 1311(a), 1362(6), (7), (12).

The Act’s text, structure, and history make clear

that any judicial definition of “waters of the United

States” must encompass wetlands that are chemically,

physically, and biologically linked with traditionally

navigable waters.

Petitioners’ position that the definition of “the

waters of the United States” necessarily excludes

most of the country’s wetlands, if adopted by the Court,

would significantly undermine the Act’s protections

and threaten significant economic harm to business

amici and their members. Petitioners’ position would

significantly lower the federal floor of protection,

threatening downstream water quality from upstream

filling and polluting. Furthermore, a collapse of federal

uniformity would steeply increase uncertainty and

force businesses to rely on an inconsistent patchwork

of state and local regulations when conducting or expanding their operations.

Wetlands provide crucial benefits for the American economy. Wetlands protect farming operations

from flooding, ensure pure water quality for breweries,

and support outdoor tourism. Reducing protections for

wetlands stands in direct opposition to the needs of the

business community that amici represent. Indeed, the

vast majority of small business owners favor federal

regulations that protect wetlands.

Amici are themselves frequently subject to regulation under the Clean Water Act and thus recognize the

importance of clearly defining the Act’s reach. But

amici disagree that clarifying the scope of federal jurisdiction requires rolling back the Act’s protections. To

the contrary, amici believe the benefits of robust and

durable regulation under the Clean Water Act far

outweigh the costs. In amici’s view, clarity is better

achieved through the clear adoption of a science-based

standard for identifying federally protected waters

that is consistent with the Act’s text, structure, and

history.

Establishing such a standard is critical for enabling

the federal agencies to implement the Act based on

their expertise, for ensuring that American businesses

have regulatory certainty as they plan their business

activities, and for guaranteeing that they and their

customers can access, utilize, and enjoy clean water for

decades to come.

The economic value of clean, healthy water to the

U.S. business community is immense, as is the harm

that will result from petitioners’ proposed rollback of

federal protections.

---------------------------------♦---------------------------------

ARGUMENT

A strong economy depends on plentiful

clean water and a robust and durable

Clean Water Act.

Water is one of our nation’s priceless resources,

essential to life itself. Healthy ecosystems and a

strong economy depend on plentiful, clean water; plentiful, clean water depends on functioning wetlands.

And unlike almost all other resources, water has no

substitute. It’s why businesses in all sectors support

protecting clean water and wetlands—whether as a direct component of their operations or simply to keep

their communities and employees healthy.

The amici supporting petitioners have presented

themselves to the Court as embodying the uniform perspective of American business. Certainly, petitioners’

amici are welcome to their views. In supporting a substantial narrowing of federal wetlands protections,

however, they do not speak for all businesses in the

United States, or even a majority of them. Amici here

represent a diverse set of businesses that support and

indeed rely upon robust federal wetlands protections.

Amici, their members, and their fellow businesses depend upon clean water and strong, durable regulations

to operate and grow their businesses, which support

and serve millions of Americans and are integral to the

country’s economy.

Businesses, their needs from regulators, and their

philosophies concerning protecting and investing in

the environment—including in water quality—are as

diverse as the United States itself. But the numbers

show that significant sectors of the economy depend on

robust but clear regulation to protect and maintain our

nation’s water sources.

Indeed, small business owners overwhelmingly

support robust federal water regulation. According to

polling:

•

67% of small business owners “are concerned

that water pollution could hurt their business”;

•

“80% of small business owners favor federal

rules to protect upstream headwaters and

wetlands”; and

•

over 70% of small business owners “believe

clean water protections help spur economic

growth, compared to only six percent who believe they are too burdensome.”3

See Am. Sustainable Bus. Council, Small Business Owners

Favor Regulations to Protect Clean Water, 1 (July 2014), https://

As discussed below, industries throughout the country and across the economic spectrum will be harmed

by petitioners’ proposed rollback of the Clean Water

Act’s protections.

A. Drinking water

Most fundamentally, business owners, their employees, and their customers depend on clean drinking

water to live healthy and productive lives. About 117

million Americans—more than one in three—get their

drinking water from sources that would risk losing

federal protection under petitioner’s proposed jurisdictional limits. See EPA, Geographic Information Systems Analysis of the Surface Drinking Water Provided

by Intermittent, Ephemeral, and Headwater Streams

in the U.S. (last updated May 28, 2020).4

Impaired access to clean drinking water has significant negative economic effects. “Economic growth

and water pollution are intrinsically linked.” Richard

Damania et al., World Bank, Quality Unknown: The Invisible Water Crisis (2019). A recent study by the World

Bank concluded that, globally, “[t]he release of pollution upstream acts as a headwind that lowers economic growth in downstream areas, reducing GDP

studylib.net/doc/8215811/small-business-owners-favor-regulationsto-protect-clean-.

Available at https://www.epa.gov/cwa-404/geographic-information-systems-analysis-surface-drinking-water-provided-intermittent (last visited June 2, 2022).

growth in downstream regions by up to a third.” Id. at

xv.

The problem is by no means confined to low- and

middle-income countries. Id. at xii (“Not only does pollution not decline with economic growth, but the range

of pollutants tends to expand with prosperity.”). Millions of Americans already lack consistent access to

safe drinking water. J. Mueller & S. Gasteyer, The

Widespread and Unjust Drinking Water and Clean Water Crisis in the United States 3, 12 Nature Commc’ns,

Art. 3544 (2021). Lower-income and minority communities are disproportionately affected, and barriers to

access exacerbate longstanding problems of poverty

and barriers to economic growth. Id. at 2-4; see also

Justin Worland, America’s Clean Water Crisis Goes Far

Beyond Flint, TIME (Feb. 20, 2020).5

Adopting petitioners’ continuous-surface-connection

test would add to these concerns.

B. Food and beverage

Companies in the food and beverage industry play

vital roles in local economies and rely on a steady supply of clean water to create their products. They are

increasingly concerned over risks to clean water.

“As of 2021, 71% of [the largest food and beverage

companies] consider water risks as part of their major

business planning activities and investment decisions,

Available at https://time.com/longform/clean-water-accessunited-states/.

up from 58% in 2019.” Ceres, Feeding Ourselves

Thirsty: Tracking Food Company Progress Toward a

Water-Smart Future, Executive Summary at 3 (2021).6

1. Beer

Quality beer requires clean water. Brewers rely

upon the Clean Water Act to protect their water supply

and their business operations and on uniform federal

protections to ensure predictability over toxins and

pollutants. In order to safeguard the upstream sources

that provide their most critical ingredient, craft brewers seek robust federal protections.7

Available at https://www.ceres.org/resources/reports/feedingourselves-thirsty#:~:text=Tracking%20Food%20Company%20Progress

%20Toward%20a%20Water%2DSmart%20Future&text=Feeding

%20Ourselves%20Thirsty%20provides%20investors,largest%20

food%20and%20beverage%20companies.

See Jason Perkins, Brewmaster, Allagash Brewing Company, et al., Comment Letter on Revised Definition of “Waters of

the United States” 84 Fed. Reg. 4154 (Feb. 14, 2019) at 2, https://

www.nrdc.org/sites/default/files/media-uploads/brewers_letter_

opposing_dirty_water_rule_-_march_2019.pdf; Matt Gallagher,

Half Acre Beer Company, Comment Letter on EPA Evaluation of

Existing Regulations Pursuant to Executive Order 13777 (June 2,

2017), https://www.regulations.gov/document/EPA-HQ-OA-20170190-38415 (“As brewers we operate in a heavily regulated industry, and it is heavily regulated for a reason. Federal environmental

regulations are in place to ensure the safety of all citizens, and any

regulatory burden that arises from this on any industry is a necessary part of doing business.”); Tim Patton, Saint Benjamin Brewing Company, Comment Letter on EPA Evaluation of Existing

Regulations Pursuant to Executive Order 13777 (June 2, 2017),

https://www.regulations.gov/document/EPA-HQ-OA-2017-0190-40255

(“Please consider the fate of the nation’s thousands of breweries

The craft brewing industry largely grew up with

the Clean Water Act. In 1972, the craft brewing business was in its infancy. It has since grown at an extraordinary rate—in part because American craft

brewers can rely upon a clean water supply.

There are more breweries today than at any other

point in American history. Brewers Ass’n, National

Beer Sales & Production Data.8 In 2020 alone, the craft

brewing industry contributed over $60 billion to the

U.S. economy, and over 400,000 jobs. Brewers Ass’n,

Economic Impact.9 Florida, Texas, Pennsylvania, and

California—all downstream states—comprise 4 out of

the top 5 states in terms of dollar value for the industry. Id. The industry cannot exist without a reliable

clean water supply—for which wetlands are crucial.

Water is the most fundamental ingredient in all

craft beer and accounts for about 90% of the finished

product. Thus, the quality of source water significantly

affects the finished product, and compounds present in

brewing water can affect pH, color, aroma, and taste.

For example, “sulfates make hops taste astringent,

while chlorine can create a medicinal off-flavor. The

presence of bacteria can spoil a batch of beer. Even

small chemical disruptions in a brewer’s water supply

when considering any changes to the rules or their enforcement.”).

Available at https://www.brewersassociation.org/statisticsand-data/national-beer-stats/ (last visited June 14, 2022).

Available at https://www.brewersassociation.org/statisticsand-data/economic-impact-data/ (last visited June 14, 2022).

can influence factors like shelf life and foam pattern.”

See Allagash Brewing Company, et al., Comment letter

on Revised Definition of “Waters of the United States”

84 Fed. Reg. 4154 (Feb. 14, 2019).10

Tess Hart, the co-founder and CEO of Triple Bottom Brewing in Philadelphia, knows the subtleties of

Philadelphia water—the “main ingredient” of her company’s beers—very well. The water has seasonal and

unique qualities she has come to rely upon, for example, ones that make lagers easier to brew in the winter

than in any other season.

To account for these intricacies, it is vital that

brewers like Ms. Hart have predictable, clean water for

their business operations.

Unexpected changes in water quality—for instance, due to pollution in adjacent wetlands upstream

from a craft brewer’s source water—can threaten the

brewing process, consistency, and the craft brewer’s

bottom line. The less consistent the regulation, the

more brewers face unanticipated water quality problems.

Petitioners’ request to significantly curtail the

scope of the Clean Water Act, therefore, is no trivial

matter to the craft brewing industry. Craft brewers

face ongoing water-quality issues, such as extreme

fluctuations in chlorine levels, excessive mineral

Available at https://www.nrdc.org/sites/default/files/mediauploads/brewers_letter_opposing_dirty_water_rule_-_march_2019.

pdf.

content, and low service pressure. A narrow judicial

definition of “the waters of the United States” that

would threaten the contaminant-content of water used

by craft brewers, or of waters upstream from brewers’

source water, would be a severe problem for the industry, particularly because, once contaminants make

their way into the water supply, there is no quick fix.

2. Seafood

The seafood industry is also particularly dependent on the protections of the Clean Water Act. In recent

years, the sector generated more than $200 billion in

annual sales and supported 1.7 million jobs. Nat’l Oceanic and Atmospheric Admin., U.S. Fishing and Seafood Industries Saw Broad Declines Last Summer Due

to COVID-19 (Jan. 15, 2021).11

Nearly half of the country’s domestically harvested seafood comes from the Gulf of Mexico. Env’t

Def. Fund, Gulf of Mexico.12 Upstream pollution—in

particular nitrogen and phosphorous runoff—is posing

a grave threat to the Gulf seafood industry. Am. Sustainable Bus. Council, Clean Water in the Upper Mississippi River Basin: Economic Importance, Threats,

and Opportunities, ASBC White Paper 1, 3.13 Much of

Available at https://www.fisheries.noaa.gov/feature-story/

us-fishing-and-seafood-industries-saw-broad-declines-last-summerdue-covid-19 (last visited June 14, 2022).

Available at https://www.edf.org/oceans/gulf-mexico.

Available at https://www.asbnetwork.org/clean-water-goodbusiness-mississippi-river-basin (last visited June 14, 2022).

this runoff originates in the rivers, streams, and other

bodies of water, like wetlands, in the Upper Mississippi

River Basin, covering areas of Illinois, Iowa, Minnesota, Missouri and Wisconsin. Id. at 2 (describing the

risks from “destruction [of ] . . . wetlands . . . alter[ing]

the flow and filtration of water throughout the basin,

allowing more pollution to enter the [Mississippi] river

and increasing the risk of flood”). Every summer, this

runoff causes a hypoxic area or “dead zone”—an area

of low to no oxygen that can kill fish and other marine

life—to form in the Gulf of Mexico that has reached

sizes large enough to cover the entire state of New Jersey. EPA, Northern Gulf of Mexico Hypoxic Zone (last

updated on June 9, 2022).14 It is estimated that nutrient pollution causes tens of million dollars of losses to

the domestic seafood industry. EPA, Nutrient Pollution,

The Effects: Economy.15 Petitioners’ test would strip

protections from much of the wetlands in the Upper

Mississippi River Basin. See Resp. Br. 30.

The seafood industry also drives the economy in

the coastal plain of South Carolina. But each wetland

area that is filled in for development creates more voluminous and more polluted storm water runoff. See

Resp. Br. 14 (discussing filtering functions of wetlands). According to Rick Baumann, who has operated

Murrells Inlet Seafood for more than 50 years, this

increased runoff flows downstream to estuaries and

Available at https://www.epa.gov/ms-htf/northern-gulfmexico-hypoxic-zone (last visited June 14, 2022).

Available at https://www.epa.gov/nutrientpollution/effectseconomy (last visited June 14, 2022).

rivers and has caused the state health department to

close shellfish beds upon which seafood companies rely.

These estuaries are also the nursery grounds for all

the recreational gamefish and commercially harvested

fish in the region, which is one of the fastest growing

in the country. As less seafood is harvested, businesses

like Mr. Baumann’s struggle to meet demand, and rising prices make it increasingly difficult to even to offer

local seafood to customers. This stress ripples through

the entire local economy, negatively impacting charter

and commercial fishing operations that help sustain

tourism. Am. Sustainable Bus. Council, Comment letter on Revised Definition of “Waters of the United

States” at 1-2 (Feb. 7, 2022).16

C. Agriculture

Despite the deregulatory agenda of some large agricultural operations, robust protections under the

Clean Water Act are an enormous concern for farmers

who are simply trying to make a living off of their land.

See Luke and Sally Gran, Clean water can increase

farm profits, grow Iowa’s economy, Des Moines Register (Nov. 18, 2016).17 Agricultural operations contributed $136.7 billion to the economy in 2016, but these

operations required nearly 40% of all fresh water

Available at https://www.asbnetwork.org/sites/main/files/

file-attachments/asbn_wotus_comment_2022_jan_0.pdf?1646060823.

Available at https://www.desmoinesregister.com/story/opinion/

abetteriowa/2016/11/18/clean-water-can-increase-farm-profits-growiowas-economy/93979374/ (last visited June 14, 2022).

withdrawals. Am. Sustainable Bus. Council, The Business Case for EPA Action on Clean Water at 1.18

As a coalition of small famers and advocates recently explained in comments to the EPA:

Farmers need clean water for crops and livestock, as well as for drinking, cooking, and numerous other uses around our families’ homes.

Wetlands help reduce pollution and protect

farming operations from flooding. Headwater,

seasonal, and rain-dependent streams supply

water to larger streams and rivers from which

farmers draw water for irrigation and for animals to drink. If upstream industries are allowed to destroy or contaminate these critical

water bodies without limit, they put farmers’

livelihoods at risk.19

The Clean Water Act protects these interests by,

among other things, requiring “oversight of polluters

that bulldoze protected waters,” and controlling “the

amount of pollutants that industrial operations can

discharge into those waters.” Id.

As discussed below, these benefits outweigh the

modest burdens of complying with the Act for many if

not most American farmers. See below Section III.

Available at https://www.asbcouncil.org/sites/main/files/fileattachments/asbc_business_case_for_clean_water_for_website.pdf

(last visited June 14, 2022).

Whiskey Creek Angus et al., Comment Letter on Proposed

Rule to Revise Definition of “Waters of the United States” at 1

(Feb. 7, 2022), https://www.regulations.gov/comment/EPA-HQOW-2021-0602-0719.

Alfonso Abeyta, a fifth-generation rancher and

farmer in Colorado and a board member of NLFR, understands the need for robust protections under the

Act because his family farm was impacted by toxic

waste water from a nearby mine, unconnected by any

continuous surface connection. Mr. Abeyta, writing

about his experiences, spoke to the need to faithfully

adhere to the intended scope of the Act, explaining that

“[a]gricultural producers, rural communities and diverse water users across America are counting on” robust protection of the nation’s waters. Alfonso Abeyta,

[Clean Water Act] Rule critical for Colorado, Coyote

Gulch (Oct. 27, 2014).20

Likewise, Matt Maier, the owner of Thousand Hills

Lifetime Grazed—which uses regenerative practices to

graze cattle—relies on a natural tributary to flow

through his pastures. Clean water is invaluable to him

and his company. In particular, Minnesota wetlands

adjacent to his pastures help maintain grazing food

and a biodiverse habitat for his cattle. These wetlands

would be at risk if the Court adopted petitioners’ position. It is vital to Thousand Hills Lifetime Grazed to

protect wetlands, maintaining their rural community’s

access to clean water and ensuring their livestock can

flourish.

Available at https://coyotegulch.blog/2014/10/27/clean-wateract-rule-critical-for-colorado-alfonso-abeyta/.

D. Manufacturing

U.S. manufacturing employs over 12 million people and relies on clean water for nearly every step of

production. Am. Sustainable Bus. Council, Comment

letter on Revised Definition of “Waters of the United

States” 84 Fed. Reg. 4154 (Feb. 7, 2022).21

Manufacturing companies use more than 9 trillion

gallons of fresh water every year. EPA, Factsheet, The

Clean Water Rules for: Communities.22

In 2014, exports of semiconductors alone were

worth over $40 billion, behind only aircraft and automobiles. Am. Sustainable Bus. Council, The Business

Case for EPA Action on Clean Water at 1.23 Creating an

integrated circuit requires a total of approximately

2200 gallons of clean water. Id. And in the textile industry, a single mill can use 200 tons of fresh water per

ton of dyed fabric. Id.

The automotive industry, which is the country’s

largest manufacturing sector and is responsible for 3%

of its GDP, also depends upon access to clean water.

David Isaiah, Water, water, everywhere in vehicle manufacturing, Automotive World (Oct. 6, 2014).

Available at https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0727.

Available at https://19january2017snapshot.epa.gov/sites/

production/files/2015-05/documents/fact_sheet_communities_final_

0.pdf (last visited June 14, 2022).

Available at https://www.asbcouncil.org/sites/main/files/fileattachments/asbc_business_case_for_clean_water_for_website.pdf

(last visited June 14, 2022).

By some estimates, producing a car uses over

39,000 gallons of water for various processes, including

surface treatment and coating, paint spray booths,

washing, rinsing, hosing, cooling, air-conditioning systems, and boilers. Id.

Increased upstream pollution would negatively

impact these and other manufacturing operations and

exacerbate existing problems of water scarcity. See

generally Prakash Rao et al., Evaluation of U.S. Manufacturing Subsectors at Risk of Physical Water Shortages, 53 Env’t Sci. Tech. 2295 (2019).

E. Outdoor recreation

The outdoor recreation and tourism industries

rely heavily on clean water and flourishing wetlands.

Roughly 40% of the American population 16 years and

older participates in wildlife activities such as hunting,

fishing, and wildlife watching. Press Release, U.S.

Dep’t of the Interior, New 5-Year Report Shows 101.6

Million Americans Participated in Hunting, Fishing &

Wildlife Activities (Sept. 7, 2017).24 In 2016, over 35

million Americans went (and spent $46.1 billion on)

fishing. U.S. Fish & Wildlife Serv., 2016 Nat’l Survey of

Fishing, Hunting, and Wildlife-Associated Recreation

Available at https://www.doi.gov/pressreleases/new-5-yearreport-shows-1016-million-americans-participated-hunting-fishingwildlife (last visited June 14, 2022).

at vi.25 Outdoor watersports—including fishing, kayaking, rafting, canoeing, and scuba diving—alone generate nearly $175 billion per year. Am. Sustainable

Bus. Council, ASBC Says Trump Administration Finalization of the New Waters of the US Rule is Not Probusiness (Jan. 23, 2020).26

Even amidst trip cancellations and lockdowns

during the pandemic, in 2020, the outdoor recreation

industry supported 4.3 million jobs, and accounted for

$374.3 billion—or nearly 2%—of the United States’

entire gross domestic product. Id.; Bureau of Econ.

Analysis, Outdoor Recreation Satellite Account, U.S.

and States, 2020 (Nov. 9, 2021).27

The industry relies on clean water and pristine

wetlands to attract tourists and outdoor enthusiasts.

Weakened water protections would devastate the animal and plant life as well as the natural beauty that

serve as a primary draw for outdoor activity. Strong

water protections are also crucial for the safe enjoyment of outdoor recreation in and around water.

Am. Sustainable Bus. Council, Revised Definition of

Available at https://www.census.gov/content/dam/Census/

library/publications/2018/demo/fhw16-nat.pdf (last visited June

14, 2022).

Available at https://www.asbnetwork.org/media-release/asbcsays-trump-administration-finalization-new-waters-us-rule-not-probusiness.

Available at https://www.bea.gov/sites/default/files/202111/orsa1121.pdf.

“Waters of the United States” 84 Fed. Reg. 4154 (Feb.

14, 2019).28

F. Ecological restoration

The ecological restoration industry likewise relies

on clear and robust enforcement of the Clean Water

Act, and in particular, a consistent, durable definition

of the “waters of the United States” to inform project

investments.

The industry is estimated to contribute $25 billion

in annual output and 225,000 jobs to the United States

economy. Todd K. BenDor et al., Defining and evaluating the ecological restoration economy, 23 Restoration

Ecology 209. The same study found that per $1 million

invested in ecological restoration, an average of 33 jobs

are created, and that the sector has an employment

multiplier of between 1.48 and 3.8 additional jobs supported for every ecological restoration job. Id. To put

this economic impact in perspective, the ecological restoration industry is now documented as providing

more jobs than the well-known iron and steel, logging,

and coal mining sectors. Id.

Amicus ERBA’s members—private sector businesses involved in conservation and ecological restoration investments—rely on the consistent application of

environmental law and policy to be able to properly assess the environmental markets. The businesses that

Available at https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0727.

make up the industry engage in projects to restore

America’s waters and habitats and have years of experience successfully providing wetland offsets for permittees under the federal agencies’ longstanding

Rapanos definition and guidance.

ERBA promotes compensatory mitigation and private investment in ecological restoration to offset impacts to natural resources and coastline communities.

Ecological Restoration Bus. Ass’n, Mission and About

Us.29 ERBA’s public comments reflect the harm from

regressive-industry attempts to narrow federal regulation. This deregulatory campaign and the uncertainty

it has created “dis-incentivizes investment in wetland

and stream restoration and subsequently places growth

in the broader ecological restoration industry . . . at

risk.”30 Most compensatory projects require years of

planning and upfront capital expenditure. Regulatory

uncertainty and the patchwork approach that would

result from curtailing the scope of federal protections

would create problems for mitigation sponsors and

permittees. Investment in mitigation options and responsible economic development depends on available

ecological offsets for efficient permitting.

Available at https://ecologicalrestoration.org/about-erba (last

visited June 14, 2022).

Ecological Restoration Bus. Ass’n, Revised Definition of

“Waters of the United States” 84 Fed. Reg. 4154 (Feb. 14, 2022)

(citing Todd K. BenDor et al., Defining and evaluating the ecological restoration economy, 23 Restoration Ecology, 209), https://

www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0680.

One ERBA member company partnered with a

private equity fund that holds half a billion dollars in

assets and was initially motivated to invest as much as

10-20% of their fund towards development of wetland

and stream mitigation offsets. The member planned to

use that investment to expand their ecological restoration projects and operations in one state and enter six

new state markets. However, due to the uncertainty

surrounding the “waters of the United States,” the

company ultimately only invested $20 million in the

wetland and stream sector, equating to a missed economic opportunity of a potential additional investment

in the range of $30-80 million. The fund manager is

now working with the company to shift investment towards markets with better demand and price stability,

an economic loss for the growing ecological restoration

sector and public who lose out on the benefits of restored wetlands and streams.

Beyond loss of jobs and business growth, deterred

investment means permanent loss of critical ecological

capacities that provide immeasurable economic value

in water quality and flood water retention services to

communities. A study attempting to capture the economic value of carbon sequestration, denitrification,

and waterfowl habitat at restored wetland sites within

a single geographic feature (the Mississippi Alluvial

Valley) estimated the value of those three services at

more than $297 million.31 This already significant

W. Aaron Jenkins et al., Valuing ecosystem services from

wetlands restoration in the Mississippi Alluvial Valley, 69 Ecological Economics, 1051 (Nov. 22, 2009).

economic value is itself an incomplete estimate, considering the other known wetlands benefits of flood storage, timber value, diverse nutrient sequestration, and

non-waterfowl habitat.

Petitioner’s proposed continuous-surface-connection

test will shrink the positive economic growth of the

ecological restoration industry that would have a ripple effect with multiple economic consequences: loss of

job growth momentum, loss of permitting efficiencies

for permittees with fewer mitigation options available,

and loss of highly valuable ecological services provided

by wetlands that are allowed to be impacted without

compensation.

G. Real estate

Clean water is also important for the real estate

industry—home values can erode by as much as

$85,000 each on land near water with high nutrient

pollution levels. Am. Sustainable Bus. Council, Comment letter on Revised Definition of “Waters of the

United States” 84 Fed. Reg. 4154 (Feb. 7, 2022).32

Wetlands play a critical role in preserving property values—particularly on waterfront properties—

because they filter pollutants, store water, and provide

flood control. See Resp. Br. 14.

Hugo Neu is an ASBN member that developed a

130-acre coworking and business incubator site at

Available at https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0727.

Kearny Point in Jersey City, New Jersey. According to

Mr. Neu, emerging science indicates that, in addition

to their other benefits, wetlands in New Jersey contain

a native bacterium capable of defluorinating perfluorooctanoic acids (PFOAs) and perflurooctane sulfonic

acids (PFOS), which may make them biodegradable.

See XiaoZhi Lim, Can microbes save us from PFAS?,

Chemical and Engineering News, March 21, 2021.33

The development of the Kearny Point site—a former

shipping yard that was an EPA superfund site—incorporated both wetlands restoration and constructed

wetlands. See Am. Sustainable Bus. Council, Hugo Neu

at Kearny Point, Kearny NJ; Marie Ruff, Kearny Point:

Flexible, Creative Workspace for the New Economy,

Commercial Real Estate Development Association

Blog (Nov. 11, 2021).34

More generally, people throughout the country

value living near healthy clean water. EPA, The Economic Benefits of Protecting Healthy Watersheds at 3

(Apr. 2021).35 As the EPA has explained:

Studies from Maine and Minnesota show that

home values declined by tens of thousands of

dollars with declines in water quality. The

Available at https://cen.acs.org/environment/persistentpollutants/microbes-save-us-PFAS/99/i10.

Available at https://www.asbnetwork.org/sites/main/files/

file-attachments/cleanwater-kearnypoint.pdf?1610554995 (last visited June 14, 2022); Available at https://blog.naiop.org/2021/11/

kearny-point-flexible-creative-workspace-for-the-new-economy/.

Available at https://www.epa.gov/sites/default/files/201510/documents/economic_benefits_factsheet3.pdf.

aggregate effect of an increase in property values attributed to good water quality on a single lake equates to millions of dollars per lake

in these areas. . . . Clean and healthy waterfronts boost property values and revenues for

adjacent retail and commercial businesses,

too. Waterfront business properties are attractive to customers and have greater property

value premiums when they are near clean waters. Preserving healthy watersheds and protecting open space while providing access to

people has the potential to boost local revenues while providing attractive amenities.

Id.

The Clean Water Act’s coverage of wetlands protects real property, both physically and economically.

And as research and innovation develop, wetlands can

even become a feature of property development, helping to turn a former EPA superfund site into an innovative and resilient business incubation campus.

II.

The Clean Water Act is a comprehensive

law intended to restore and protect the integrity of the nation’s waters.

Petitioners and their amici urge the Court to

adopt a bright-line, deregulatory “continuous-surfaceconnection” definition of “the waters of the United

States” that would remove federal protection from

much of the nation’s wetlands. But that proposed reading contravenes the natural reading of the text, particularly as understood in light of more recent legislative

enactments, and recent decisions by the Court interpreting the Clean Water Act.

Furthermore, removing these protections would

cause significant harm to amici and their business

members. The supposed clarity that petitioners claim

will be achieved by their proposed test is a mirage. In

reality, lowering the federal floor of protection by

narrowing the Clean Water Act will force businesses,

particularly those operating in multiple jurisdictions,

to learn and comply with an inconsistent patchwork of

state and local regulations.

A. Text, structure, and history confirm that

wetlands that are chemically, physically,

and biologically connected to traditionally navigable waters are covered by the

Act.

Congress passed the Clean Water Act “to restore

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

relevant here, the Act prohibits the unpermitted discharge of any pollutant—including “dredged spoil,”

“rock,” and “sand”—into “the waters of the United

States.” 33 U.S.C. §§ 1311(a), 1362(6), (7), (12).

As respondents explain, the definition of “the waters of the United States” is naturally read to encompass wetlands adjacent to a traditionally navigable

water, even when those wetlands are separated from

the navigable water by a man-made barrier. Resp. Br.

19-24. This understanding is confirmed by Congress’s

explicit endorsement in 1977 of the Corps of Engineers’

inclusion of “adjacent wetlands” in the definition of

“the waters of the United States.” Id. at 21 (citing 33

U.S.C. § 1344(g)(1)).

More recently, in supporting mitigation banking

efforts like those conducted by amicus ERBA’s members, Congress has reaffirmed its understanding that

the Act reaches wide swaths of wetlands. Indeed, the

entire industry of mitigation banking has developed

based on that understanding. See, e.g., 10 U.S.C.

§ 2694b(a) (authorizing Secretary of Defense to “make

payments to a wetland mitigation banking program or

. . . mitigation sponsor approved in accordance with

the Federal Guidance for the Establishment, Use and

Operation of Mitigation Banks” when “engaged in an

authorized activity that may or will result in the destruction of, or an adverse impact to, a wetland”); see

also Federal Guidance for the Establishment, Use

and Operation of Mitigation Banks, 60 C.F.R. § 58605

(1995) (“The purpose of this guidance is to clarify the

manner in which mitigation banks may be used to satisfy mitigation requirements of the Clean Water Act

(CWA) Section 404 permit program.”).

B. Petitioners’ proposed test would saddle

businesses with a burdensome patchwork of inconsistent state regulations.

As respondents explain, the Army Corps of Engineers and the EPA—as well as the federal courts—

have long understood the Act to protect more than just

those wetlands possessing a continuous surface connection. See Resp. Br. 3. This understanding is the status quo that businesses have operated under for

decades. See generally id.

Petitioners and their amici argue that wetlands

like the ones at issue here should now be categorically

excluded from the Act’s coverage because they lack a

continuous surface connection to a traditionally navigable water—and claim that that such an approach

would be good for business.

But adopting the continuous-surface-connection

test would add to, rather than ease, the regulatory burden for many businesses. Not only would this dramatic

lowering of the federal “floor” result in a “substantial

reduction” in federal protection of the water sources

upon which many businesses rely, it would also lead to

an unpredictable patchwork of state regulation that

businesses would be forced to navigate. See Cong.

Rsch. Serv., Redefining Waters of the United States

(WOTUS): Recent Developments 16, 20, 23 (Sept. 30,

2021).36

States have dramatically different regulatory regimes. For example, even if individual states wanted to

protect their local business industries from a rollback

in the Act’s protections, doing so will be difficult. In

2020, the EPA and the Corps identified the following

Available at https://crsreports.congress.gov/product/pdf/R/

R46927.

regulatory realities that would hinder many states

from implementing protections:

•

“[S]ome state laws . . . constrain a state’s authority to regulate more broadly than the federal ‘floor’ set by the CWA”;

•

“Thirteen states have adopted laws that require their state regulations to parallel federal CWA regulations”;

•

“Some state laws limit the application of

state regulations to certain industries, certain types of permits, or certain types of resources”; and

•

“Twenty-four states have adopted laws that

require extra steps or findings of benefits in

order to impose state regulations beyond federal requirements.”

EPA and Dep’t of the Army, Resource and Programmatic Assessment for the Navigable Waters Protection

Rule: Definition of the “Waters of the United States”

(Jan. 23, 2020).37

Thus, if petitioners succeed in significantly lowering the federal floor of protection provided by the Clean

Water Act, some states will heavily regulate; others

will not. Some states will utilize particular types of

permitting authority; others will not. Some states will

have the financial and regulatory capacity to regulate;

others will not.

Available at https://www.epa.gov/sites/default/files/202001/documents/rpa_-_nwpr_.pdf.

Businesses already have insight into just how

damaging the adoption of petitioners’ proposed rule

would be. Estimates suggest that 18% of streams and

51% of wetlands nationwide would be excluded from

federal protection under the Navigable Waters Protection Rule—a rule that similar to petitioners’ proposed

rule, would have greatly reduced the Act’s protections.

Cong. Rsch. Serv., Redefining Waters of the United States

(WOTUS): Recent Developments 22.38 And petitioners’

rule is even more extreme in its approach to wetlands.

Under the Navigable Waters Protection Rule, initial

data showed that only 8.3% of waters were found to be

covered after a jurisdictional determination—a steep

drop from the 41% from those protected under postRapanos guidance, and the 42% under the previous

Clean Water Rule.39

The 18% figure is likely very conservative. This is because

the National Hydrography Dataset (NHD), which was used in the

preliminary analysis of the Navigable Waters Protection Rule,

underestimates the percentage of streams that are ephemeral.

See, e.g., EPA and Dep’t of the Army, Economic Analysis for the

Final Rule: Definition of “Waters of the United States”—Recodification of Pre-Existing Rules Definition, 12 (Sept. 15, 2019),

https://www.epa.gov/sites/default/files/2019-09/documents/wotus_

rin-2040-af74_final_ea_508compliant_20190905.pdf (noting that

the NHD “does not map many ephemeral streams outside of the

arid West” and that “the actual percentage of ephemeral streams

across the country is likely higher than 18 percent since many are

not mapped or are mapped as intermittent”).

Hannah Northey, Exclusive: Trump rule imperils more

than 40,000 waterways, E&E News (March 19, 2021), available at

https://www.eenews.net/stories/1063727993 (“91% of waters EPA

reviewed under the Navigable Waters Protection Rule didn’t

quality for federal protection.”); EPA, Clean Water Act Approved

In contrast to these steep changes, much of industry prefers the durability of a “familiar regulatory

regime . . . including a significant nexus analysis.” Ecological Restoration Bus. Ass’n, Revised Definition of

“Waters of the United States” 84 Fed. Reg. 4154 (Feb.

14, 2022).40 As succinctly reported in the National Law

Review, “generally speaking, the regulated community

prefers one standard to many standards.”41 Indeed,

many businesses have come to rely upon the regulatory status quo, and having access to unquestionably

safe, clean water sources. ERBA, for example, stands

at the crossroads of representing both regulated entities and entities engaged in the business of delivering

regulatory compliance. “[D]urability remains ERBA’s

chief concern.” Ecological Restoration Bus. Ass’n,

Jurisdictional Determinations (last accessed June 15, 2022),

available at https://watersgeo.epa.gov/cwa/CWA-JDs/ (calculating using total number of jurisdictional determinations issued under relevant rule as denominator and number of jurisdictional

determinations with positive jurisdictional finding as numerator).

Available at https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0680.

Jeffrey R. Porter, Yes, Patchwork Makes for Great Quilts

but Not for Environmental Regulation and PFAS Are No Exception, 12 Nat’l L. Rev. 165 (2021), https://www.natlawreview.

com/article/yes-patchwork-makes-great-quilts-not-environmentalregulation-and-pfas-are-no (quoting a former EPA official as stating: “[N]othing is worse for industry than a patchwork of states

having different requirements, where at the end of the day, it does

not help interstate commerce—where California has certain restrictions, Colorado has a different one. And then Maine has

something completely different.”).

Revised Definition of “Waters of the United States” 84

Fed. Reg. 4154 (Feb. 14, 2022).42

III. For amici and their members, the benefits

of the robust protection required by the

Clean Water Act outweigh the burdens.

Adopting a bright-line rule to administer a complex federal statute is not always the best means to effectuate the statutory text and Congress’s objectives.

As the Court explained in County of Maui, applying a

bright-line test to disputes under the Act may be easier

to administer, but would be “inconsistent with major

congressional objectives, as revealed by the statute’s

language, structure, and purposes.” County of Maui v.

Hawaii Wildlife Fund, 140 S. Ct. 1462, 1477 (2020).

For amici and their members, the benefits of robust protections for wetlands under the Clean Water

Act greatly outweigh the costs of having to apply a

more fact-specific test to determine whether a wetland

is protected under the Act.

A. Clear legal guidelines need not come at

the expense of the Act’s critical protections.

Petitioners and their supporters—including organizations representing other members of the business

community—argue repeatedly that the post-Rapanos

Available at https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0680.

landscape has made regulation and enforcement under

the Act too uncertain and unpredictable. Amici here

agree that clarity is important in any regulatory regime. But amici disagree that clarity requires a deregulatory lowest-common-denominator approach to

interpreting the Clean Water Act.

Whatever confusion exists about the scope of jurisdiction under the Act results primarily from the fact

that no opinion in Rapanos commanded a majority of

the Court, which as the Chief Justice predicted, left the

lower courts and regulated entities “to feel their way

on a case-by-case basis.” See Rapanos, 547 U.S. 715,

758 (Roberts, C.J., concurring). The Court can resolve

this confusion by adopting respondents’ position in this

case—which is supported by the Act’s text, structure,

and history—and rejecting petitioners’ narrow and

atextual continuous-surface-connection test. See Maui,

140 S. Ct. 1462, 1478 (2020) (Kavanaugh, J., concurring) (noting that Act did not “establish a bright-line

test,” but that the Court could nevertheless “translate

the vague statutory text into more concrete guidance”).

B. Petitioners and their amici exaggerate

the burdens of complying with the Act.

The amici supporting petitioners repeatedly invoke the specter of onerous regulation, permitting, and

compliance. This narrative is greatly exaggerated

given that the vast majority of Section 404 authorizations occur under the Corps’ streamlined general permits rather than site-specific permits, as respondents

have explained. See Resp. Br. 37; see also Cong. Rsch.

Serv., The Army Corps of Engineers’ Nationwide Permits Program: Issues and Regulatory Developments

(Jan. 2, 2017) (as of 2017, over “97% of the Corps’

[CWA] regulatory workload is processed in the form of

general permits” which have broader application and

lesser review);43 Whiskey Creek Angus et al., Comment

Letter on Proposed Rule to Revise Definition of “Waters of the United States” at 2 (Feb. 7, 2022) (“In the

rare instances that agricultural operations need permits, fast-track permits are often available.”).44

Moreover, many activities engaged in by small

businesses are expressly exempted from the Act. This

includes, for farms, “ordinary agricultural discharges”

and common agricultural practices like “building or

maintaining stock ponds or irrigation ditches, maintaining drainage ditches, and building farm roads using best management practices.” Id. at 1–2. Thus, most

“[f ]arms have nothing to fear from the Clean Water

Act.” Id.

And permit approval is exceedingly common. Indeed, the Corps has reported that “[n]ationwide, less

than one percent of all requests for permits [under the

Act] are denied. Those few applicants who have been

denied permits usually have refused to change the design, timing, or location of the proposed activity.” U.S.

Available at https://www.everycrsreport.com/files/20170112_

97-223_271c5b98b058e7b84bab465be90e05777cf735ea.pdf.

Available at https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0719.

Army Corps of Eng’rs, Regulatory Program Frequently

Asked Questions.45

Amici supporting petitioners also point to inflated

and inaccurate costs associated with permit applications. The EPA under the leadership of both political

parties has found costs are both lower than petitioners

and their amici say, and they have remained reasonably flat. See EPA and Dep’t of the Army, Economic

Analysis for the Navigable Waters Protection Rule:

Definition of “Waters of the United States” 18 (Jan. 22,

2020) (“The Corps unit cost estimates ($15,100 per individual permit; $4,500 per general permit) are adjusted from 1999$ to 2018$ using the CPI-U.”);46 EPA

and Dep’t of the Army, Economic Analysis for the Proposed “Revised Definition of ‘Waters of the United

States’ ” Rule (Nov. 17, 2021) (“The Corps unit cost

estimates are adjusted from 1999$ to 2020$ using the

CPI-U ($15,500 to $37,300 per individual permit;

$4,700 to $15,500 per general permit)”).47

Any complex regulatory regime can be subject to

critique and might benefit from added clarity. The

Clean Water Act is no exception. But the Court can

grant that clarity with added durability by speaking

Available at https://www.usace.army.mil/Missions/Civil-Works/

Regulatory-Program-and-Permits/Frequently-Asked-Questions/ (last

visited June 14, 2022).

Available at https://www.epa.gov/sites/default/files/202001/documents/econ_analysis_-_nwpr.pdf.

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

2021-11/revised-definition-of-wotus_nprm_economic-analysis.pdf.

with one voice and adopting one test that is faithful to

the Act’s text, structure, and history.

---------------------------------♦---------------------------------

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

MAX E. RODRIGUEZ

ALISON BOROCHOFF-PORTE

POLLOCK COHEN LLP

60 Broad Street, 24th Floor

New York, NY 10004

(212) 337-5361

June 17, 2022

BENJAMIN D. BATTLES

Counsel of Record

POLLOCK COHEN LLP

50 Lakeside Avenue

Burlington, VT 05401

(802) 793-5512

ben@pollockcohen.com

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