Amicus Curiae Brief — Michael Sackett, et ux., Petitioners v. Environmental Protection Agency, et al.
Supreme Court briefJun 17, 2022
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No. 21-454
IN THE
Supreme Court of the United States
MICHAEL SACKETT, et ux.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR STATES OF NEW YORK, CALIFORNIA,
CONNECTICUT, DELAWARE, HAWAIʻI, ILLINOIS,
MAINE, MARYLAND, MASSACHUSETTS, MINNESOTA,
NEW JERSEY, NEW MEXICO, NORTH CAROLINA,
OREGON, VERMONT, WASHINGTON, AND WISCONSIN,
AND THE DISTRICT OF COLUMBIA
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
LETITIA JAMES
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
JUDITH N. VALE
Deputy Solicitor General
MARK S. GRUBE
Assistant Solicitor General
28 Liberty Street
New York, New York 10005
(212) 416-8016
barbara.underwood@ag.ny.gov
*Counsel of Record
(Counsel listing continues on signature pages.)
i
TABLE OF CONTENTS
Page
Table of Authorities ..................................................... ii
Interests of Amici States ...............................................1
Statement .......................................................................3
Summary of Argument ..................................................9
Argument ......................................................................10
I.
States’ Experience Confirms That Wetlands
with Significant Connections to
Downstream Navigable Waters Directly
Affect the Quality and Quantity of Those
Waters. ...............................................................10
II. Federalism Principles Confirm That
Wetlands with Significant Connections to
Navigable Waters Are Covered by the
Clean Water Act (CWA). ...................................16
A. The CWA requires minimum waterpollution controls in each State to protect
downstream States from upstream
pollution. ......................................................18
B. Absent protection under the CWA,
downstream States have limited
remedies to address pollutant discharges
into wetlands located in upstream
States. ...........................................................21
III. States Rely on the Significant Nexus
Standard, Which Is Workable and Not
Overly Burdensome. .........................................25
Conclusion.....................................................................32
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Arkansas v. Oklahoma, 503 U.S. 91 (1992) ...... 5, 14, 21
Black Warrior River-Keeper, Inc. v. Drummond
Co., 387 F. Supp. 3d 1271 (N.D. Ala. 2019) .......... 30
Catskill Mountains Chapter of Trout Unlimited,
Inc. v. City of New York, 451 F.3d 77 (2d Cir.
2006) ........................................................................ 30
City of Milwaukee v. Illinois, 451 U.S. 304
(1981) ....................................................... 4, 18, 19, 22
Georgia v. Tennessee Copper Co., 206 U.S. 230
(1907) ....................................................................... 17
Hawkes Co. v. United States Army Corps of
Eng’rs, No. 13-cv-107, 2017 WL 359170 (D.
Minn. Jan. 24, 2017) ............................................... 30
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ... 4, 19
International Paper Co. v. Ouellette, 479 U.S. 481
(1987) ............................................................14, 20-22
Lewis v. United States, No. 2:18-cv-1838, 2020
WL 4798496 (E.D. La. Aug. 18, 2020) ................... 30
Matter of Jack Coletta, Inc. v. New York State
Dep’t of Env’t Conservation, 128 A.D.2d 755
(N.Y. App. Div. 1987) .............................................. 28
Matter of Pletenik v. Town of Brookhaven, 70
A.D.3d 954 (N.Y. App. Div. 2010) .......................... 28
Natural Res. Def. Council, Inc. v. Costle, 568 F.2d
1369 (D.C. Cir. 1977) .............................................. 18
Northern Cal. River Watch v. City of Healdsburg,
496 F.3d 993 (9th Cir. 2007) .............................. 8, 29
iii
Cases
Page(s)
Northwest Env’t Advocates v. EPA, 537 F.3d 1006
(9th Cir. 2008) ......................................................... 30
Orchard Hill Bldg. Co. v. United States Army
Corps of Eng’rs, 893 F.3d 1017 (7th Cir.
2018) .................................................................. 30, 31
Precon Dev. Corp. v. United States Army Corps of
Eng’rs, 633 F.3d 278 (4th Cir. 2011) ................. 8, 30
Rapanos v. United States, 547 U.S. 715
(2006) ............................................................1, 6-8, 28
Sackett v. EPA, 8 F.4th 1075 (9th Cir. 2021) ......... 5, 10
Solid Waste Agency of N. Cook Cnty. v. United
States Army Corps of Eng’rs, 531 U.S. 159
(2001) .............................................................. passim
United States v. Agosto-Vega, 617 F.3d 541 (1st
Cir. 2010) ................................................................... 8
United States v. Cundiff, 555 F.3d 200 (6th Cir.
2009) .................................................................... 8, 29
United States v. Donovan, 661 F.3d 174 (3d Cir.
2011) ........................................................................ 29
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985)......................................... passim
Laws
Federal
33 U.S.C.
§ 407........................................................................... 4
§ 1251(a) .............................................................. 3, 11
§ 1251(b) .................................................................. 20
§ 1311(a) .................................................................... 3
§ 1313....................................................................... 20
iv
Laws
Page(s)
Federal
33 U.S.C.
§ 1341....................................................................... 20
§ 1342(a) .............................................................. 3, 24
§ 1342(b) ........................................................ 5, 19, 20
§ 1342(d) .................................................................. 19
§ 1344(a) .............................................................. 3, 24
§ 1344(g) .............................................................. 5, 23
§ 1344(h) .................................................................. 20
§ 1362(6) .................................................................... 3
§ 1362(7) .................................................................... 3
§ 1362(12) .................................................................. 3
§ 1370............................................................. 5, 18, 20
State (alphabetical)
Ariz. Rev. Stat. Ann. § 49-104(A)(16).......................... 23
Cal. Water Code § 13140 ............................................. 26
Colo. Rev. Stat. Ann. § 25-8-202(8)(a) ......................... 23
Conn. Gen. Stat. Ann.
§ 22a-28 et seq......................................................... 26
§ 22a-36 et seq......................................................... 26
§ 22a-90 et seq......................................................... 26
§ 22a-359 ................................................................. 26
D.C. Code
§ 2-1226.38(3) .......................................................... 27
§ 8-103.06 ................................................................ 27
§ 8-103.09(d) ............................................................ 27
Fla. Stat. Ann.
§ 373.403 et seq. ...................................................... 26
§ 373.414.................................................................. 26
§ 403.804(2) ............................................................. 23
v
Laws
Page(s)
State
Ga. Code Ann. § 12-5-280 et seq.................................. 27
Idaho Code Ann.
§ 39-3601 ................................................................. 23
§ 39-7210 ................................................................. 23
Ind. Code Ann.
§ 13-11-2-221.5 ........................................................ 26
§ 13-18-22-1 et seq. ................................................. 26
Iowa Code Ann.
§ 455B.105(3) .......................................................... 23
§ 455B.173(2) .......................................................... 23
Ky. Rev. Stat. Ann. § 13A.120(1)................................. 23
La. Stat. Ann. § 49:214.21 et seq................................. 27
Me. Rev. Stat. Ann. tit. 38
§ 341-H(3) ................................................................ 23
§ 480-A et seq. ......................................................... 26
Md. Code Ann., Env’t
§ 5-901 et seq........................................................... 26
§ 16-101 et seq......................................................... 26
Mass. Gen. Laws
ch. 130, § 105 ........................................................... 26
ch. 131, § 40 ............................................................. 26
Mich. Comp. Laws Ann.
§ 24.232(8) ............................................................... 23
§ 24.245(3) ............................................................... 23
§ 324.30301 et seq. .................................................. 26
Minn. Stat. Ann.
§ 103G.221 et seq. ................................................... 26
§ 103G.2375............................................................. 23
vi
Laws
Page(s)
State
Miss. Code Ann.
§ 49-17-34(2) ............................................................ 23
§ 49-27-1 et seq. ...................................................... 27
Mont. Code Ann.
§ 75-5-203 ................................................................ 23
§ 75-6-116 ................................................................ 23
N.H. Rev. Stat. Ann. § 482-A:1 et seq. ........................ 26
N.J. Stat. Ann.
§ 13:9A-1 et seq. ...................................................... 26
§ 13:9B-1 et seq. ...................................................... 26
N.Y. Env’t Conserv. Law
§ 24-0101 et seq....................................................... 26
§ 24-0107 ................................................................. 27
§ 25-0101 et seq....................................................... 26
N.C. Gen. Stat. Ann.
§ 113-229 ................................................................. 26
§ 113-230 ................................................................. 26
§ 113A-100 et seq. ................................................... 26
Ohio Rev. Code Ann.
§ 1506.01 et seq. ...................................................... 26
§ 6111.021 et seq. .................................................... 26
Okla. Stat. Ann. tit. 27a, § 1-1-206 ............................. 23
Or. Rev. Stat. Ann.
§ 183.332.................................................................. 23
§ 196.800 et seq. ...................................................... 26
§ 468B.110(2) .......................................................... 23
32 Pa. Stat. and Cons. Stat. § 693.1 et seq. ................ 26
2 R.I. Gen. Laws Ann. § 2-1-18 et seq. ........................ 26
vii
Laws
Page(s)
State
46 R.I. Gen. Laws Ann. § 46-23-1 et seq. .................... 27
S.C. Code Ann. § 48-39-10 et seq. ............................... 27
S.D. Codified Laws § 1-41-3.4...................................... 23
Tenn. Code Ann.
§ 4-5-226(k).............................................................. 23
§ 69-3-108 ................................................................ 27
Tex. Water Code Ann. § 26.017(5)............................... 23
Utah Code Ann. § 19-5-105.......................................... 23
Va. Code Ann.
§ 28.2-1300 et seq.................................................... 27
§ 62.1-44.5 ............................................................... 27
§ 62.1-44.15 ............................................................. 27
§ 62.1-44.15(3a) ....................................................... 23
§ 62.1-44.19:7(B) ..................................................... 23
Vt. Stat. Ann. tit. 10, § 913 et seq. .............................. 27
W. Va. Code
§ 22-1-3 .................................................................... 23
§ 22-5-4(a) ................................................................ 23
Wash. Rev. Code Ann. § 77.55.011 et seq. .................. 27
Wis. Stat. Ann.
§ 281.36.................................................................... 27
§ 283.11(2) ............................................................... 23
Regulations
Federal
33 C.F.R.
§ 320.1(a) ................................................................. 31
§ 325.9...................................................................... 31
viii
Regulations
Page(s)
Federal
33 C.F.R.
§ 328.3(a) (2008)........................................................ 5
§ 328.3(b) (2008)........................................................ 6
§ 331.2...................................................................... 31
40 C.F.R.
§ 122.28.................................................................... 30
§ 125.3...................................................................... 30
§ 230.3(t) (2008) ........................................................ 6
Clean Water Rule: Definition of “Waters of the
United States,” 80 Fed. Reg. 37,054 (June 29,
2015) ...................................................................11-13
Definition of “Waters of the United States”Recodification of Pre-Existing Rules, 84 Fed.
Reg. 56,626 (Oct. 22, 2019)........................... 6, 25, 26
Final Rule for Regulatory Programs of the Corps
of Engineers, 51 Fed. Reg. 41,206 (Nov. 13,
1986) .......................................................................... 6
Revised Definition of “Waters of the United
States,” 86 Fed. Reg. 69,372 (Dec. 7, 2021) ............. 5
State
Ala. Admin. Code
R. 335-8-2-.02 .......................................................... 27
R. 335-8-2-.03 .......................................................... 27
Cal. Code Regs tit. 23, § 2926 ...................................... 26
310 Code Mass. Regs. § 10.57 ...................................... 27
ix
Miscellaneous Authorities
Page(s)
Acreman M., & J. Holden, How Wetlands Affect
Floods, 33 Wetlands 773 (2013),
https://dec.vermont.gov/sites/dec/files/wsm/we
tlands/docs/wl_How_Wetlands_Prevent_Flood
s.pdf ......................................................................... 13
Acreman, M.C., & A.J.D. Ferguson, Environmental
Flows and the European Water Framework
Directive, 55 Freshwater Biology 32 (2010),
https://tinyurl.com/4r47dsa9 .................................. 13
Albert, Dennis A., Between Land and Lake:
Michigan’s Great Lakes and Coastal Wetlands
(2003), https://mnfi.anr.msu.edu/pdfs/
BetweenLandAndLake.pdf .................................... 15
Baker, Virginia, et al., N.C. Div. of Water Quality,
Development of a Wetland Monitoring Program
for Headwater Wetlands in North Carolina
(2008), https://tinyurl.com/bddt884a ..................... 12
Brinson, Mark M., et al., U.S. Army Corps of
Eng’rs, Wetlands Rsch. Program Tech.
Rep. WRP-DE-11, A Guidebook for Application
of Hydrogeomorphic Assessments to Riverine
Wetlands (1995), https://wetlands.el.erdc.
dren.mil/pdfs/wrpde11.pdf ..................................... 13
Committee on Characterization of Wetlands,
Nat’l Rsch. Council, Wetlands: Characteristics
and Boundaries (1995),
https://nap.nationalacademies.org/cart/downl
oad.cgi?record_id=4766 .......................................... 13
x
Miscellaneous Authorities
Page(s)
Congressional Rsch. Serv., The Army Corps of
Engineers’ Nationwide Permits Program:
Issues and Regulatory Developments (2017),
https://www.everycrsreport.com/files/2017011
2_97-223_271c5b98b058e7b84bab465
be90e05777cf735ea.pdf .......................................... 31
Groffman, Peter M., et al., Nitrate Dynamics in
Riparian Forests: Microbial Studies, 21 J.
Env’t Quality 666 (1992),
http://cels.uri.edu/docslink/whl/Journals/Groff
man_1992_JEQ.pdf ................................................ 12
Hedin, Lars O., et al., Thermodynamic Constraints
on Nitrogen Transformations and Other
Biogeochemical Processes at Soil-Stream
Interfaces, 79 Ecology 684 (1998),
https://tinyurl.com/4tnee8r2 .................................. 12
Holmes, Robert M., et al., Denitrification in a
Nitrogen-Limited Stream Ecosystem, 33
Biogeochemistry 125 (1996),
https://tinyurl.com/24upce5v ................................. 12
Idaho Dep’t of Water Res., Comprehensive Basin
Plans, Priest River Basin (1995 as amended
2003), https://tinyurl.com/2ktjfykm ....................... 14
Indiana Dep’t of Env’t Mgmt., Comment Letter
on Advance Notice of Proposed Rulemaking:
Clean Water Act Regulatory Definition of
“Waters of the United States” (Apr. 16, 2003)
(EPA-HQ-OW-2002-0050),
https://downloads.regulations.gov/EPA-HQOW-2011-0880-17477/attachment_42.pdf ............ 25
xi
Miscellaneous Authorities
Page(s)
Jackson, R. Rhett, et al., Waters of the US: A
Case Study from the Edge of the Okefenokee
Swamp, 41 Wetlands 8 (2021),
https://tinyurl.com/8dc57xz .................................... 15
Jacobs, Amy D., & David F. Bleil, Del. Dep’t of
Nat. Res. & Env’t Control, Condition of
Nontidal Wetlands in the Nanticoke River
Watershed, Maryland and Delaware (2008),
https://documents.dnrec.delaware.gov/Admin/
DelawareWetlands/Documents/Nanticoke%20
Wetland%20Profile_final.pdf ................................. 14
Johnston, Carol A., Sediment and Nutrient
Retention by Freshwater Wetlands: Effects on
Surface Water Quality, 21 Critical Revs.
Envtl. Control 491 (1991),
https://tinyurl.com/2p82jap7 .................................. 12
Narayan, Siddarth, et al., The Value of Coastal
Waters for Flood Damage Reduction in the
Northeastern USA, 7 Sci. Reps. art. 9463
(2017), https://www.nature.com/articles/
s41598-017-09269-z.pdf .......................................... 16
New York City Dep’t of Env’t Prot., Wetlands in
the Watersheds of the New York City Water
Supply System (2009),
https://www.fws.gov/wetlands/Documents/We
tlands-in-the-Watersheds-of-the-New-YorkCity-Water-Supply-System_2009.pdf .................... 14
North Carolina Div. of Water Quality, Hydrologic
Connectivity, Water Qualify Function, and
Biocriteria of Coastal Plain Geographically
Isolated Wetlands (2013),
https://tinyurl.com/58n4a8bm................................ 12
xii
Miscellaneous Authorities
Page(s)
Peterson, Bruce J., et al., Control of Nitrogen
Export from Watersheds by Headwater
Streams, 292 Science 86 (2001),
https://andrewsforest.oregonstate.edu/pubs/p
df/pub2863.pdf ........................................................ 12
Revesz, Richard L., Federalism and Interstate
Environmental Externalities, 144 U. Pa. L.
Rev. 2341 (1996) ..................................................... 25
S. Rep. No. 92-414 (1971)............................. 4, 19, 22, 24
Senate Comm. on Public Works, 93rd Cong., A
Legislative History of the Water Pollution
Control Act Amendments of 1972, vol. 1
(1973), https://babel.hathitrust.org/cgi/
pt?id=mdp.39015077957630 .................................. 20
Texas Parks & Wildlife Dep’t, Comment Letter
on Advance Notice of Proposed Rulemaking:
Clean Water Act Regulatory Definition of
“Waters of the United States” (Apr. 15, 2003)
(EPA-HQ-OW-2002-0050),
https://downloads.regulations.gov/EPA-HQOW-2011-0880-17477/attachment_102.pdf .......... 25
U.S. Army Corps of Eng’rs, Regulatory Program
Frequently Asked Questions (n.d.),
https://www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-andPermits/Frequently-Asked-Questions/ .................. 31
U.S. Env’t Prot. Agency, Connectivity of Streams
and Wetlands to Downstream Waters: A
Review and Synthesis of the Scientific
Evidence (Jan. 2015),
https://cfpub.epa.gov/si/si_public_file_downloa
d.cfm?p_download_id=523020&Lab=NCEA ......... 11
xiii
Miscellaneous Authorities
Page(s)
U.S. Env’t Prot. Agency, Wetlands: Protecting
Life and Property from Flooding (2016),
https://www.epa.gov/sites/production/files/201
6-02/documents/flooding.pdf .................................. 13
U.S. Env’t Prot. Agency & U.S. Army Corps of
Engr’s, Clean Water Act Jurisdiction
Following the U.S. Supreme Court’s Decision
in Rapanos v. United States & Carabell v.
United States (June 5, 2007),
https://www.epa.gov/sites/production/files/20
16-04/documents/rapanosguidance6507.pdf ......... 8
U.S. Env’t Prot. Agency, Explanatory
Statement, Implementation of the “National
Pollutant Discharge Elimination System”
Pursuant to Section 402, Federal Water
Pollution Control Act Amendments of 1972
(Feb. 7, 1973), https://nepis.epa.gov/Exe/
ZyPURL.cgi?Dockey=2000V0FW.TXT .................. 4
U.S. Geological Survey, Pend Oreille River at
Newport, WA, https://waterdata.usgs.gov/
monitoring-location/12395500/ ............................ 14
Walbridge, Mark R., & Judith P. Struthers,
Phosphorus Retention in Non-Tidal
Palustrine Forested Wetlands of the MidAtlantic Region, 13 Wetlands 84 (1993),
https://tinyurl.com/2p8xb6tr ................................ 11
Watson, Keri B., et al., Quantifying Flood
Mitigation Services: The Economic Value of
Otter Creek Wetlands and Floodplains to
Middlebury, VT, 130 Ecological Econ. 16
(2016), https://conservationtools.org/
library_items/1634/files/1822 .............................. 15
INTERESTS OF AMICI STATES
Wetlands are often inextricably linked to navigable
waters and thereby directly affect the quantity, quality,
and biological integrity of those waters. For that
reason, as this Court has already determined, Congress
plainly intended the Clean Water Act (CWA) “to regulate wetlands ‘inseparably bound up with the “waters”
of the United States.’” Solid Waste Agency of N. Cook
Cnty. v. United States Army Corps of Eng’rs, 531 U.S.
159, 167 (2001) (SWANCC) (quoting United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121, 134
(1985)). As the Court explained in SWANCC and as
Justice Kennedy reiterated in his concurring opinion in
Rapanos v. United States, 547 U.S. 715 (2006)—needed
to form a majority holding—wetlands with a “significant nexus” to navigable waters are “waters of the
United States.”
States, federal agencies, and private entities have
long relied on that interpretation, which is supported
by the CWA’s text, history, and purpose, and the
commonsense understanding that, at minimum, wetlands with a subsurface-water or other hydrological
connection to navigable waters—such as those at issue
here—directly affect navigable waters and are thus
“waters of the United States.” Contrary to that understanding, petitioners here contend that wetlands do not
fall under the CWA’s jurisdiction unless they have
continuous surface-water connections to navigable
waters.
The States of New York, California, Connecticut,
Delaware, Hawaiʻi, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North
Carolina, Oregon, Vermont, Washington, and Wisconsin, and the District of Columbia, have compelling
2
interests in the question presented here. Each of the
forty-eight contiguous States contains waters that are
downstream from other States and thus relies on the
CWA’s federal standards to protect their waters from
pollutants that are discharged into wetlands in
upstream States. Where wetlands are significantly
connected to navigable waters, pollutant discharges
into those wetlands can have profound effects on the
quality and biological integrity of the downstream
waters and can also exacerbate risks of flooding
downstream. Amici States thus must rely on the CWA’s
protection of wetlands in upstream jurisdictions to
ensure that their residents in downstream locations
have adequate water quality and protection from
flooding risks.
Indeed, the experience of Amici States shows that
the CWA’s federal minimum standards are required to
protect against the risks of pollution and flooding posed
by weaker or non-existent environmental standards or
inadequate enforcement in upstream States. Before the
CWA, a patchwork of inconsistent state laws proliferated in the absence of uniform federal regulation.
Because States could reap the economic benefits of local
development while shifting the environmental, regulatory, and economic costs of such development downstream, individual States failed to protect the Nation’s
interconnected, shared water system. Congress enacted
the CWA in large part to remedy this interstate
problem, by setting a federal “floor” of national minimum pollutant controls applicable in every State.
Removing wetlands connected to navigable waters from
the CWA’s coverage would subvert the CWA’s protections for downstream States, including Amici States.
Moreover, Amici States have structured their
regulatory programs in reliance on the CWA’s protec-
3
tion of wetlands with a significant nexus to navigable
waters and their tributaries. Thus, in addition to the
limitations on their ability to alter regulatory shortcomings in upstream States, Amici States would incur
significant costs to fill the regulatory gaps within their
own States that would follow an interpretation of the
CWA that withdrew federal protection from such
wetlands.
STATEMENT
Congress enacted the CWA “to restore and maintain
the chemical, physical, and biological integrity of the
Nation’s waters.” 33 U.S.C. § 1251(a). The CWA’s permit requirements are the key mechanisms for attaining
Congress’s objective. These permit requirements
prohibit the “discharge of any pollutant,” including fill
material such as rock and sand, without a permit. Id.
§ 1311(a); see id. § 1362(6). The term “discharge of a
pollutant” is defined to mean “any addition of any
pollutant to navigable waters from any point source.”
Id. § 1362(12). And the CWA defines “navigable waters”
to mean the “waters of the United States, including the
territorial seas.” Id. § 1362(7). Under the CWA, a permit is thus required to discharge pollutants or dredged
or fill materials into any of the “waters of the United
States.” See id. §§ 1342(a)(1), 1344(a).
In applying the permit requirements to all pollutant discharges into any “waters of the United States,”
Congress intended the CWA to apply to many waters
that had not previously been subject to federal pollution-control oversight. Before the CWA was enacted in
1972, the prior regulatory regime was far narrower in
scope. The federal Refuse Act of 1899 applied to
discharges of refuse into “any navigable water of the
4
United States” or “any tributary of any navigable
water,” id. § 407, which was understood to be limited to
traditional interstate navigable waters and their tributaries.1 And even that regime was largely unenforced
at the federal level. Given the lack of federal oversight,
States were primarily responsible for most waterpollution control within their borders, see S. Rep. No.
92-414, at 2 (1971), and downstream States lacked
effective remedies to protect themselves from pollutants discharged into waters in upstream States, see
Illinois v. City of Milwaukee, 406 U.S. 91, 102-03
(1972). In 1972, Congress recognized that this State-led
scheme had been “inadequate in every vital aspect,”
leaving many waters “severely polluted.” S. Rep. No.
92-414, at 7.
Congress responded by deliberately replacing this
ineffective patchwork of state laws with the CWA, “an
all-encompassing program of water pollution regulation.” City of Milwaukee v. Illinois, 451 U.S. 304, 318
(1981). By applying the CWA broadly to all “waters of
the United States,” Congress intended the CWA to
cover many more waters than those that had been
subject to the predecessor legislation, see S. Rep. No.
92-414, at 77; see also id. at 70 (“Refuse Act authority
has significant gaps . . . that render it seriously inadequate as a means of implementation of a water pollution control program”).
The CWA also protects the sovereign interests of
downstream States that suffer the environmental
consequences and economic burdens of weak or non1 See U.S. Env’t Prot. Agency, Explanatory Statement,
Implementation of the “National Pollutant Discharge Elimination
System” Pursuant to Section 402, Federal Water Pollution Control
Act Amendments of 1972, at 3 (Feb. 7, 1973).
5
existent pollution controls upstream. The CWA mandates permitting in every State and requires that a
national minimum level of pollution controls be applied
to all “waters of the United States.” See Arkansas v.
Oklahoma, 503 U.S. 91, 110 (1992) (CWA authorizes
Environmental Protection Agency (EPA) “to create and
manage a uniform system of interstate water pollution
regulation”). Although the CWA’s cooperative federalism model contemplates a robust role for the States in
implementing key CWA programs, if they choose to
adopt such responsibilities, it does not allow States to
undermine the minimum water-protection requirements that apply nationwide. 33 U.S.C. §§ 1342(b),
1344(g), 1370.
The EPA and U.S. Army Corps of Engineers (Army
Corps) have over the years interpreted the scope of
“waters of the United States.” The regulations applicable here defined that term to include traditional
navigable waters, their tributaries, and wetlands adjacent to such waters.2 33 C.F.R. § 328.3(a) (2008). As the
governing regulations provided when this Court
considered them in 1985, in Riverside Bayview Homes,
474 U.S. at 124, the regulations applicable here defined
“wetlands” to mean areas “inundated or saturated by
surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically
2 The courts below applied the pre-2015 regulatory definitions
that are substantively the same as the regulations applicable
today. See Sackett v. EPA, 8 F.4th 1075, 1080 & n.1 (9th Cir. 2021).
In December 2021, the EPA and Army Corps proposed a new rule
defining “waters of the United States.” See Revised Definition of
“Waters of the United States,” 86 Fed. Reg. 69,372 (Dec. 7, 2021).
6
adapted for life in saturated soil conditions.”3 33 C.F.R.
§ 328.3(b) (2008); see 40 C.F.R. § 230.3(t) (2008).
This Court has addressed the scope of the term
“waters of the United States” in several cases. See
Definition of ‘‘Waters of the United States’’—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626,
56,660 (Oct. 22, 2019). In Riverside Bayview Homes, the
Court upheld the Army Corps interpretation of a
regulation providing that “waters of the United States”
included wetlands adjacent to other jurisdictional
waters, even if the wetlands are not regularly flooded
by such waters, giving deference to the Army Corps
determination that such wetlands are “inseparably
bound up with” other jurisdictional waters. 474 U.S. at
131-35. And in SWANCC, this Court explained that
“the significant nexus between the wetlands and ‘navigable waters’” informs when wetlands are sufficiently
connected to other jurisdictional waters to fall under
the CWA’s coverage. 531 U.S. at 167. Applying that
standard, the Court concluded that isolated ponds were
not rendered “waters of the United States” solely by
their use as migratory bird habitat. Id. at 167-72.
This Court again considered the scope of “waters of
the United States” in Rapanos v. United States, 547
U.S. 715 (2006), which addressed whether certain wetlands were subject to the CWA’s permitting requirements. Although the case did not produce a majority
3 The Army Corps regulations have also provided that “adjacent” means “bordering, contiguous, or neighboring,” and that
“adjacent wetlands” include wetlands “separate from other waters
of the United States by man-made dikes or barriers, natural river
berms, beach dunes and the like.” Final Rule for Regulatory
Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,251
(Nov. 13, 1986).
7
opinion, all the Justices agreed that “waters of the
United States” includes many waters that are not actually navigable in fact and includes wetlands that have
a sufficient connection to navigable waters. See id. at
730-31, 742 (Scalia, J., plurality op.); id. at 767, 772-75,
782 (Kennedy, J., concurring in the judgment); id. at
796-97 (Stevens, J., dissenting). The primary disagreement among the Justices was the extent of the
connection between wetlands and other jurisdictional
waters that is needed for the wetlands to constitute
“waters of the United States.”
While four Justices would have held that “a continuous surface connection” to “relatively permanent, standing or continuously flowing bodies of water” is required,
id. at 739 (Scalia, J., plurality op.), Justice Kennedy’s
opinion concurring in the judgment, which was needed
to form a majority holding, concluded that wetlands
constitute “waters of the United States” where they
“possess a significant nexus with navigable waters,” id.
at 787 (Kennedy, J., concurring). As Justice Kennedy
explained, wetlands with such a significant connection
to navigable waters “significantly affect the chemical,
physical, and biological integrity of other covered
waters.” Id. at 780. The four dissenting Justices would
have held that the wetlands at issue in Rapanos necessarily have a significant nexus to navigable waters, to
the extent the CWA requires such a showing. Id. at
807-08 (Stevens, J. dissenting).
Justice Kennedy and the four dissenting Justices
emphasized that limiting “waters of the United States”
to include only those wetlands that have a continuous
surface-water connection to other jurisdictional waters
departed from the scientific evidence and conflicted with
the CWA. They explained that the CWA is concerned
with downstream water quality, and that wetlands
8
often have significant connections with navigable
waters or their tributaries, including surface-water,
subsurface-water, and other connections, that greatly
affect downstream water quality. See id. at 773-74
(Kennedy, J., concurring in the judgment); see id. at
793-98, 808-09 (Stevens, J., dissenting). Through such
connections, Justice Kennedy and the dissenting
Justices explained, wetlands play an integral part in
maintaining the integrity of downstream waters,
including by trapping and neutralizing pollutants,
controlling surface-water run-off and erosion, and
preventing and controlling flooding. See id. at 775, 77778 (Kennedy, J., concurring in the judgment); id. at
796-99, 803-04, 807-08 (Stevens, J., dissenting).
Following Rapanos, the EPA and Army Corps
issued joint guidance stating that the CWA applies to
wetlands or other waters if either the plurality’s
standard or the “significant nexus” standard set forth
in Justice Kennedy’s concurring Rapanos opinion is
satisfied as to those wetlands or waters. See U.S. Env’t
Prot. Agency & U.S. Army Corps of Engr’s, Clean Water
Act Jurisdiction Following the U.S. Supreme Court’s
Decision in Rapanos v. United States & Carabell v.
United States 3 (June 5, 2007). The agencies have been
applying the “significant nexus” analysis for more than
fifteen years. Courts have also routinely applied the
“significant nexus” analysis to determine when wetlands or other waters are within the CWA’s jurisdiction. See, e.g., Precon Dev. Corp. v. United States Army
Corps of Eng’rs, 633 F.3d 278, 294-96 (4th Cir. 2011);
United States v. Agosto-Vega, 617 F.3d 541, 551 (1st
Cir. 2010); United States v. Cundiff, 555 F.3d 200, 21011 (6th Cir. 2009); Northern Cal. River Watch v. City of
Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007).
9
SUMMARY OF ARGUMENT
1. The “significant nexus” test properly ensures
that, at minimum, wetlands like those at issue here,
which have significant subsurface water and other
hydrological connections to navigable waters, continue
to fall under the CWA’s jurisdiction. The “significant
nexus” test is thus essential to effectuating Congress’s
intent because such wetlands can have profound effects
on the quality, quantity, and biological integrity of
navigable waters. Indeed, pollutant discharges into
upstream wetlands with such connections to navigable
waters negatively affect the quality and quantity of
downstream waters—including navigable waters
located in other States downstream from the polluted
wetlands.
2. Protection under the CWA for wetlands that
significantly affect navigable waters is also necessary
to maintain the balance between federal and State
authority established by the CWA. The CWA preempts
certain remedies traditionally used to address interstate water pollution, leaving the federal statutory
provisions as the primary mechanism for protecting
downstream States from the effects of pollution
discharged into upstream waters. The absence of federal
standards would significantly hamper downstream
States’ ability to protect the quality of navigable waters
in their own jurisdictions and to prevent and control
harmful flooding.
3. The significant nexus test is a familiar and
workable standard that has been effectively used to
determine when wetlands have a sufficient connection
to navigable waters to necessitate federal protection.
Indeed, courts applying the standard have provided
ample guidance regarding the types of concrete eviden-
10
tiary showings that may establish the requisite nexus
where a case-specific determination is necessary. States
have also structured their own water-related regulations based on the longstanding understanding that the
CWA covers waters, including wetlands, with a significant nexus to navigable waters. And contrary to the
claims of petitioners and their amici, the standard is
not onerous: the Army Corps denies less than one
percent of dredge and fill permit applications, and
many discharges are covered by general permits that
do not require an individualized application process.
ARGUMENT
I.
States’ Experience Confirms That Wetlands
with Significant Connections to Downstream
Navigable Waters Directly Affect the Quality
and Quantity of Those Waters.
This case is not about the regulation of isolated
wetlands, as petitioners and their amici suggest.
Rather, the wetlands at issue are integrated with
waters that are indisputably “waters of the United
States”—i.e., Priest Lake in Idaho and its tributaries—
through subsurface-water and other hydrological
connections. See Sackett, 8 F.4th at 1080-81, 1092-93.
Because such wetlands are “inseparably bound up”
with the adjacent jurisdictional waters, pollutant
discharges into the wetlands are effectively the same as
discharges into “waters of the United States.” See
Riverside Bayview Homes, 474 U.S. at 134. The Court
should thus hold that the Ninth Circuit correctly
applied the significant nexus test.
Wetlands are often connected—physically, hydrologically, or in some other manner—to traditional
navigable waters or their tributaries even where there
11
is no visible surface-water connection between the
wetlands and the other waters. For example, wetlands
may have “a regular shallow subsurface-water connection” to downstream navigable waters—i.e., the water
in the wetlands connects to other waters below the
surface rather than in plain sight. See U.S. Env’t Prot.
Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific
Evidence at ES-3 (Jan. 2015). Similarly, floodplain
wetlands are often “highly connected” to streams and
rivers through shallow groundwater. Id. at 4-39. And
wetlands may have other “hydrologic, chemical, and
biological connections to downstream waters” that
closely integrate those wetlands with adjacent navigable waters or their tributaries. Id. at ES-11-12.
Coverage of wetlands that significantly affect
navigable waters is essential to the CWA because those
wetlands can have profound effects on the quality,
quantity, and biological integrity of those waters. See
33 U.S.C. § 1251(a). Indeed, wetlands with shallow
subsurface connections—such as those at issue here—
may move water and potential contaminants directly to
nearby surface water within days or even hours. See
Clean Water Rule: Definition of “Waters of the United
States,” 80 Fed. Reg. 37,054, 37,089-90 (June 29, 2015).
Degrading or destroying such wetlands reduces or
eliminates their ability to filter pollutants, including
sediments, nutrients, agricultural runoff, and other
contaminants, that would otherwise flow into and
degrade downstream navigable waters or their tributaries. Id. at 37,085.4 The North Carolina Division of
4 See also, e.g., Mark R. Walbridge & Judith P. Struthers,
Phosphorus Retention in Non-Tidal Palustrine Forested Wetlands
(continues on next page)
12
Water Quality, for example, concluded that certain
wetlands in North Carolina are connected via groundwater to streams and rivers, and that water, including
potentially contaminated water, flows from the wetlands into the streams and rivers.5 Wetlands with
significant subsurface-water or other hydrologic connections to other jurisdictional waters also play a major
role in regulating the chemistry and integrity of such
waters. For example, they transform excess nitrate
leaking from septic systems and agricultural fields into
harmless gases through the natural process of denitrification.6 See id. Wetlands with a significant nexus to
navigable waters often reduce the number and severity
of floods by temporarily storing water and gradually
releasing it into downstream waters, thereby main-
of the Mid-Atlantic Region, 13 Wetlands 84 (1993); Carol A.
Johnston, Sediment and Nutrient Retention by Freshwater
Wetlands: Effects on Surface Water Quality, 21 Critical Revs.
Envtl. Control 491 (1991).
5 N.C. Div. of Water Quality, Hydrologic Connectivity, Water
Qualify Function, and Biocriteria of Coastal Plain Geographically
Isolated Wetlands 197-98 (2013); Virginia Baker et al., N.C. Div. of
Water Quality, Development of a Wetland Monitoring Program for
Headwater Wetlands in North Carolina 221 (2008) (“[W]etlands
reduce the amount of pollutants entering downstream waters.”).
6 See, e.g., Bruce J. Peterson et al., Control of Nitrogen Export
from Watersheds by Headwater Streams, 292 Science 86 (2001);
Lars O. Hedin et al., Thermodynamic Constraints on Nitrogen
Transformations and Other Biogeochemical Processes at SoilStream Interfaces, 79 Ecology 684 (1998); Robert M. Holmes et al.,
Denitrification in a Nitrogen-Limited Stream Ecosystem, 33
Biogeochemistry 125 (1996); Peter M. Groffman et al., Nitrate
Dynamics in Riparian Forests: Microbial Studies, 21 J. Env’t
Quality 666 (1992).
13
taining the normal rate of water flow.7 Wetlands also
provide necessary habitat for aquatic animals that are
critical to the functions of downstream ecosystems. Id.
at 37,068. For these reasons, this Court has made clear
that “Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands ‘inseparably bound up with the waters of
the United States.’” SWANCC, 531 U.S. at 167 (quoting
Riverside Bayview Homes, 474 U.S. at 134).
Amici States’ experience confirms that where
upstream wetlands have significant connections to
downstream navigable waters, including, at minimum,
subsurface water or other hydrologic connections, pollutant discharges into such wetlands negatively affect the
quality and quantity of downstream waters—including
navigable waters located in other downstream States.
Pollutants that originate upstream naturally flow
downstream, and the consequences of dredge and fill
activities are likewise felt downstream. Because each of
the forty-eight contiguous States has water bodies that
are downstream of one or more other States, discharges
into “waters of the United States” located in one State
flow into other States. For example, as this Court has
recognized, pollutants discharged into the Mississippi
River in Minnesota can affect the waters of nine down-
7 See, e.g., Mark M. Brinson et al., U.S. Army Corps of Eng’rs,
Wetlands Rsch. Program Tech. Rep. WRP-DE-11, A Guidebook for
Application of Hydrogeomorphic Assessments to Riverine Wetlands
15, 21, 24, 27 (1995); Comm. on Characterization of Wetlands, Nat’l
Rsch. Council, Wetlands: Characteristics and Boundaries 34-35,
40-41 (1995); M.C. Acreman & A.J.D. Ferguson, Environmental
Flows and the European Water Framework Directive, 55 Freshwater Biology 32 (2010); M. Acreman & J. Holden, How Wetlands
Affect Floods, 33 Wetlands 773 (2013); U.S. Env’t Prot. Agency,
Wetlands: Protecting Life and Property from Flooding (2016).
14
stream States. See International Paper Co. v. Ouellette,
479 U.S. 481, 496 n.17 (1987). As another example, this
Court also considered the effect of effluent discharged
into a stream in Arkansas that connected through
creeks to the Illinois River, twenty-two miles upstream
of the Arkansas-Oklahoma border. See Arkansas, 503
U.S. at 95.
The significant connections between certain
wetlands and navigable waters means that degrading
those wetlands will impair the navigable waters and
harm downstream States, including through the flow of
pollutants, changes in water chemistry, and flooding.
Indeed, waters from Priest Lake in Idaho—the navigable water affected by the wetlands at issue in this
litigation—continue downstream to the Pend Oreille
River, eventually reaching Washington.8 A few further
examples illustrate the types of effects that downstream States face across the country. Wetlands constitute a significant portion of the Delaware River watershed in New York and contribute water to the Delaware
River, which flows downstream to Pennsylvania, New
Jersey, and Delaware.9 Wetlands in Delaware influence the integrity of the Nanticoke River, which flows
downstream into Maryland, ultimately ending in the
Chesapeake Bay.10 Michigan has abundant coastal
8 See Idaho Dep’t of Water Res., Comprehensive Basin Plans,
Priest River Basin 4 (1995 as amended 2003); U.S. Geological
Survey, Pend Oreille River at Newport, WA (data concerning
discharges into Pend Oreille River at Newport, Wash.).
9 See New York City Dep’t of Env’t Prot., Wetlands in the
Watersheds of the New York City Water Supply System 16-17
(2009).
10 Amy D. Jacobs & David F. Bleil, Del. Dep’t of Nat. Res. &
Env’t Control, Condition of Nontidal Wetlands in the Nanticoke
(continues on next page)
15
wetlands near Lake Michigan, an interstate navigable
water that also extends into Indiana, Illinois, and
Wisconsin.11 And numerous wetlands in Georgia are
connected through a variety of noncontinuous surface
flows to Boone Creek, a tributary of the St. Marys River,
which forms part of the Georgia-Florida border.12
Amici States’ experiences also demonstrate that
discharges of pollutants, including dredge and fill materials, into upstream wetlands contribute to flooding
risks in downstream States. For example, a recent study
showed that wetlands located along the Otter Creek in
Vermont—which eventually flows into Lake Champlain, a waterbody shared by New York and Vermont—
limited downstream flooding following Tropical Storm
Irene. Researchers found that the floodplain wetland
system on Otter Creek reduced water flows downstream by at least a factor of approximately 2.5 during
the storm.13 In New York, the flood protections
provided by such upstream wetlands are critically
important because many state residents reside within
River Watershed, Maryland and Delaware 2, 20 (2008). Wetlands
in the District of Columbia also act as buffers to protect the
Chesapeake Bay from pollution. Decl. of Jeffrey Seltzer ¶ 9 (Nov.
20, 2020), California v. Wheeler, No. 3:20-cv-03005 (N.D. Cal.),
ECF No. 214-9.
11 Dennis A. Albert, Between Land and Lake: Michigan’s
Great Lakes and Coastal Wetlands (2003).
12 R. Rhett Jackson et al., Waters of the US: A Case Study from
the Edge of the Okefenokee Swamp, 41 Wetlands 8 (2021).
13 The protections afforded by the Otter Creek wetland system
during Tropical Storm Irene also reduced damages downstream by
$627,000 to $2 million. See Keri B. Watson et al., Quantifying
Flood Mitigation Services: The Economic Value of Otter Creek
Wetlands and Floodplains to Middlebury, VT, 130 Ecological Econ.
16 (2016).
16
areas prone to flooding.14 If discharges and fill activities were allowed to reduce the flood protection
provided by wetlands, the resulting flooding could
cause vast damage to New York residents.
Other States too would face an increased risk of
flooding if the CWA’s protections for upstream wetlands were removed. Coastal wetlands avoided an estimated $625 million in direct damages from Hurricane
Sandy across twelve States.15 In Massachusetts specifically, for example, the destruction of non-floodplain
wetlands in upstream States would increase floodassociated risks.16 In short, States’ experience shows
that the effects of pollution in upstream States is felt
downstream and that the protection of upstream wetlands is crucial to fulfilling Congress’s objective in
enacting the CWA.
II. Federalism Principles Confirm That
Wetlands with Significant Connections
to Navigable Waters Are Covered by
the Clean Water Act (CWA).
The cooperative federalism principles that Congress
incorporated into the CWA strongly support the conclusion that the CWA’s permit requirements apply to wetlands with a significant nexus to navigable waters,
including at least those wetlands that, like the
wetlands at issue here, have significant subsurface-
14 Decl. of William Nechamen ¶ 5 (May 4, 2020), California,
ECF No. 30-22.
15 Siddarth Narayan et al., The Value of Coastal Waters for
Flood Damage Reduction in the Northeastern USA, 7 Sci. Reps. art.
9463 (2017).
16 Decl. of Kathleen M. Baskin ¶ 8 (Nov. 17, 2020), California,
ECF No. 214-1.
17
water or other hydrologic connections to navigable
waters or their tributaries. The CWA’s history and
structure make clear that Congress intended the CWA
to preserve an important role for States in protecting
the quality and quantity of waters in their jurisdictions
by granting States authority to implement the CWA’s
permitting regime and impose higher standards if they
choose to do so. At the same time, the CWA protects
States from upstream pollution by imposing nationwide minimum pollution-control standards.
The narrow construction of the CWA that
petitioners and their amici urge rests on an oversimplified view of federalism and is inconsistent with the
CWA’s core principles. See W. Va. Amicus Br. 7-13; Pet.
Br. 24. Congress did not intend States to retain sole
regulatory authority over waters within their borders
when their activities could harm other States, which
have limited options to protect themselves and their
residents from upstream pollution. And principles of
federalism do not support such a result either. When
the States formed a union and renounced the use of
force to protect themselves from other States, they “did
not thereby agree to submit to whatever might be done”
by other States or “renounce the possibility of making
reasonable demands on the ground of their still remaining quasi-sovereign interests.” Georgia v. Tennessee
Copper Co., 206 U.S. 230, 237 (1907). The CWA vindicates these sovereign interests of the States by protecting them from the harms generated by pollutant
discharges in upstream States and by giving them a
mechanism for enforcing that interest. The arguments
advanced by petitioners and their amici that federalism
compels a narrow reading of the CWA ignore these
important principles. Considering the interests of the
States in their totality, federalism supports federal
18
jurisdiction over waters that have a significant connection to navigable waters or their tributaries. Indeed,
Congress specifically intended the CWA to apply to
such waters, including wetlands, precisely because
discharges there may impair waters in downstream
States.
A. The CWA requires minimum waterpollution controls in each State to
protect downstream States from
upstream pollution.
In enacting the CWA, Congress recognized that
States face powerful incentives to compete for industry
by establishing less stringent water-protection standards than their neighbors, thereby externalizing to
downstream States the environmental and economic
harms resulting from such lower standards. See
Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369,
1378 (D.C. Cir. 1977). Congress enacted a “selfconsciously comprehensive program” to address these
interstate pollution problems, Milwaukee, 451 U.S. at
319; see id. at 325-26, which arise from the interconnectedness of many navigable waters, their tributaries,
and adjacent wetlands (see supra, at 10-16).
To protect downstream States from a “race to the
bottom” of water-quality protections, the CWA establishes a uniform national floor of pollutant controls that
each State must follow. The CWA requires implementation of its permit programs in every State and requires
that permits include discharge limitations that adhere
to minimum federal standards. See 33 U.S.C. § 1370. In
addition, Congress included procedures for resolving
interstate disputes concerning pollutant discharges.
See Milwaukee, 451 U.S. at 325-26. For example, any
State with jurisdiction over waters of the United States
19
affected by a proposed pollutant discharge in another
State must receive notice and an opportunity to object
to a permit. See 33 U.S.C. § 1342(b)(3), (b)(5), (d)(2).
These nationwide pollution protections are critical to
maintaining water quality in downstream States and
do not apply to waters outside the scope of the CWA.
History confirms that the cooperative federalism
model embodied in the CWA must be applied to wetlands with a significant nexus to navigable waters.
Before the CWA, States were primarily responsible for
most water-pollution control within their borders,
S. Rep. No. 92-414, at 2, and lacked a remedy to protect
themselves from pollution from upstream States apart
from a common-law nuisance claim, see Illinois, 406 U.S.
at 101-03. Congress rejected this regime as “inadequate
in every vital aspect,” S. Rep. No. 92-414, at 7, and
replaced it with the CWA’s “all-encompassing program
of water pollution regulation,” Milwaukee, 451 U.S. at
318. See supra, at 3-4. Artificially limiting the CWA’s
application to exclude wetlands that lack a continuous
surface-water connection to navigable waters but are
nevertheless “inseparably bound up with the ‘waters’ of
the United States,” see Riverside Bayview Homes, 474
U.S. at 134, would ignore Congress’s clearly expressed
intent, see SWANCC, 531 U.S. at 167, and undermine
the protections Congress provided to downstream
States.
Although the cooperative federalism embodied in
the CWA contemplates that States will serve important
roles in protecting the waters within their respective
jurisdictions, those roles are meant to further the CWA’s
core remedial objectives of preserving the quality and
quantity of the Nation’s waters. The role of the States
under the CWA does not support removing from the
CWA’s coverage those wetlands with important func-
20
tional connections to navigable waters—thereby
subverting the CWA’s protections for downstream
States—as petitioners and amici suggest (see, e.g.,
W. Va. Amicus Br. 7-9).
For example, the CWA states that it is Congress’s
policy to “recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce
and eliminate pollution,” and “to plan the development
and use . . . of land and water resources.” 33 U.S.C.
§ 1251(b). This provision does not remotely suggest
that Congress envisioned a narrow scope for the CWA’s
coverage that would allow States to keep exclusive regulatory authority over waters, including wetlands, that
significantly affect navigable waters flowing downstream. To the contrary, it preserves state responsibility “to prevent and abate pollution by assigning them
a large role” in administering the CWA’s permit and
other regulatory programs. See S. Comm. on Public
Works, 93rd Cong., 1 A Legislative History of the Water
Pollution Control Act Amendments of 1972, at 403
(1973). States thus may develop water quality standards for their waters and operate CWA permit
programs within their respective jurisdictions, when
approved to do so by the EPA or the Army Corps. States
also review federally licensed projects and approve or
deny certifications for those projects. See 33 U.S.C.
§§ 1251(b), 1313, 1341, 1342(b), 1344(h). And States
may implement and enforce additional state waterquality protections in their respective jurisdictions that
go beyond the national minimum protections established by the CWA. Id. § 1370. But States carry out
these rights and responsibilities as part of “a regulatory
partnership,” Ouellette, 479 U.S. at 499, “between the
States and the Federal Government animated by a
shared objective: ‘to restore and maintain the chemical,
21
physical, and biological integrity of the Nation’s
waters.’” Arkansas, 503 U.S. at 101 (quoting 33 U.S.C.
§ 1251(a)). These state rights and responsibilities do
not provide any plausible basis for undermining the
scope of the CWA’s protections.
B. Absent protection under the CWA,
downstream States have limited
remedies to address pollutant
discharges into wetlands located
in upstream States.
Additional federalism principles further support
interpreting the CWA to cover wetlands that have a
significant nexus to navigable waters. Specifically, if
the CWA’s permit programs do not apply to certain
wetlands in upstream States, downstream States
would have limited ability to protect themselves from
the negative effects of pollutants that are discharged
into the upstream wetlands—even when the wetlands
are significantly connected with downstream navigable
waters and the discharge of pollutants into them will
thus degrade downstream water quality or increase
downstream flood risks.
Although the CWA gave States “a strong voice” in
regulating pollutant discharges that occur within their
respective borders, it provided them with only an
“advisory role” in regulating pollutant discharges
occurring in other States. Ouellette, 479 U.S. at 490.
See supra, at 18-19 (downstream States affected by
proposed discharge receive notice and opportunity to
object to permit). A State may not establish its own
permit system to regulate out-of-state pollutant
discharges. Ouellette, 479 U.S. at 491. And this Court
has held that the CWA’s comprehensive regulation of
upstream sources preempts traditional common-law
22
remedies that downstream States might otherwise
have for upstream sources of pollution, leaving downstream States with little recourse except, for example,
a common-law nuisance lawsuit under the law of the
upstream State. See Milwaukee, 451 U.S. at 317
(federal common law preempted); Ouellette, 479 U.S. at
490-91, 494 (common law of an affected State
preempted). The CWA’s comprehensive scheme and
States’ lack of clear authority to control pollutant
discharges into wetlands in upstream States require a
construction of the CWA that protects waters in downstream States by covering wetlands that, at minimum,
have a significant subsurface or other hydrologic
connection to downstream waters—like those at issue
here—and not only wetlands with continuous surfacewater connections to traditional navigable waters.
The suggestion of petitioners and their amici that
state regulation of wetlands will alone be sufficient to
protect downstream States defies Congress’s rejection
of the prior ineffective scheme of patchwork state laws.
See Milwaukee, 451 U.S. at 318; S. Rep. No. 92-414, at
7. Indeed, the current state-law regimes enacted by
many States demonstrate the disastrous downstream
effects that could result if the CWA’s coverage of wetlands is severely limited to only those wetlands with
continuous surface-water connections to traditional
navigable waters. Many States have laws that restrict
state-law water-quality protections by tying them to the
scope of the federal minimum protections imposed by
the CWA. At least six States prohibit the implementation of any state standards that are more stringent
23
than the CWA’s standards.17 To the extent that those
restrictions are interpreted to allow regulation only of
those wetlands also covered by the CWA, state-law
protections will not apply to any waters, including
wetlands, that are not “waters of the United States.”
Removing wetlands significantly connected with navigable waters from the CWA’s jurisdictional scope would
thus also remove state-law protections for those wetlands in certain States—leaving downstream States
with even less protection.
17 See, e.g., Arizona: Ariz. Rev. Stat. Ann. § 49-104(A)(16)
(Arizona’s environmental laws and regulations can be “no more
stringent than the corresponding federal law that addresses the
same subject matter”). Idaho: Idaho Code Ann. §§ 39-3601, 397210. Kentucky: Ky. Rev. Stat. Ann. § 13A.120(1). Mississippi:
Miss. Code Ann. § 49-17-34(2). South Dakota: S.D. Codified Laws
§ 1-41-3.4. Wisconsin: Wis. Stat. Ann. § 283.11(2).
Other States limit the circumstances in which a state
standard may deviate from the federal standard. See, e.g.,
Colorado: Colo. Rev. Stat. Ann. § 25-8-202(8)(a) (to adopt rules
more stringent than federal standards regulator must demonstrate at a public hearing that more stringent rules “are necessary
to protect the public health, beneficial use of water, or the
environment of the state”). Florida: Fla. Stat. Ann. § 403.804(2)
(stricter standard must be supported by study of “economic and
environmental impact which sets forth the benefits and costs” of
the stricter standard). Iowa: Iowa Code Ann. §§ 455B.105(3),
455B.173(2)(b). Maine: Me. Rev. Stat. Ann. tit. 38, § 341-H(3).
Michigan: Mich. Comp. Laws Ann. §§ 24.232(8), 24.245(3).
Minnesota: Minn Stat. Ann. § 103G.2375 (barring Minnesota
from adopting state dredge and fill program under 33 U.S.C.
§ 1344(g) that is more stringent than federal standards; Minnesota
has not yet adopted such a program). Montana: Mont. Code Ann.
§§ 75-5-203, 75-6-116. Oklahoma: Okla. Stat. Ann. tit. 27a, § 1-1206. Oregon: Or. Rev. Stat. Ann. §§ 183.332, 468B.110(2).
Tennessee: Tenn. Code Ann. § 4-5-226(k). Texas: Tex. Water
Code Ann. § 26.017(5). Utah: Utah Code Ann. § 19-5-105.
Virginia: Va. Code Ann. §§ 62.1-44.15(3a), (10), 62.1-44.19:7(B).
West Virginia: W. Va. Code §§ 22-1-3, 22-5-4(a)(4).
24
Contrary to the contentions of petitioners and their
amici, such a drastic contraction of the jurisdictional
scope of the CWA and certain state-law water-quality
protections would not eliminate the environmental and
economic burdens that result from pollutant discharges
into wetlands. Rather, it would shift those burdens to
downstream States, their residents, and permit holders
or applicants located in those States. Downstream
States would experience the deleterious environmental
effects that result when pollutants degrade wetlands
that significantly affect navigable waters or their tributaries, including the flow of pollutants into downstream
waters and the loss of flood protections. See supra, at
10-16. Downstream States and their residents would
also be forced to bear the regulatory and economic costs
of, for example, improving the quality of waters that
have suffered from upstream pollution and rebuilding
after floods that were exacerbated by upstream dredging or pollution of wetlands. Such a shift in regulatory
and cost burdens conflicts with the CWA’s core structure of regulating pollutant discharges, including
dredge and fill discharges, at their source rather than in
downstream locations. See S. Rep. No. 92-414, at 77
(“[I]t is essential that discharge of pollutants be
controlled at the source.”); see also 33 U.S.C. §§ 1342(a)
(regulating “discharge of any pollutant”), 1344(a) (regulating “discharge of dredged or fill material”).
Excluding from the CWA’s coverage wetlands that
significantly affect navigable waters would also transfer regulatory and economic costs onto private landowners and businesses in downstream States. As pollutant discharges into upstream wetlands impair the
water quality of downstream waters, downstream
States would be forced to impose disproportionately
stringent permit limits on in-state pollutant discharg-
25
ers to try to maintain the water-quality standards
mandated by the CWA for in-state navigable waters,
their tributaries, or adjacent wetlands.18 Overall, petitioners’ narrow construction of the CWA’s scope would
unfairly allow upstream States to reap “the labor and
fiscal benefits” of economic activity that discharges
pollutants into wetlands significantly connected to
navigable waters, while shifting the costs of such pollution to downstream States—precisely the interstate
problem that Congress sought to prevent through the
CWA. See Richard L. Revesz, Federalism and Interstate
Environmental Externalities, 144 U. Pa. L. Rev. 2341,
2343 (1996).
III. States Rely on the Significant Nexus
Standard, Which Is Workable and Not
Overly Burdensome.
The “significant nexus” test is a familiar one that
federal agencies, States, courts, and private parties have
relied on and applied for more than fifteen years. As the
EPA and Army Corps have explained, the agencies have
been applying CWA regulations dating back to 1986,
and have been doing so “consistent with the Supreme
Court’s decisions in SWANCC and Rapanos.” 84 Fed.
18 See Texas Parks & Wildlife Dep’t, Comment Letter on
Advance Notice of Proposed Rulemaking: Clean Water Act Regulatory Definition of “Waters of the United States” 7 (Apr. 15, 2003)
(EPA-HQ-OW-2002-0050) (limiting CWA coverage to traditional
navigable waters “would most likely result in more restrictive
discharge permit limits to those discharging into the navigable
waters to compensate for those dischargers who would no longer
be required to meet standards set by” the CWA); Indiana Dep’t of
Env’t Mgmt., Comment Letter on Advance Notice of Proposed
Rulemaking: Clean Water Act Regulatory Definition of “Waters of
the United States” 11 (April 16, 2003) (EPA-HQ-OW-2002-0050)
(noting impact on drinking water).
26
Reg. at 56,660. The agencies explained that they, “their
co-regulators, and the regulated community are thus
familiar” with the significant nexus analysis “and have
amassed significant experience operating under those
pre-existing regulations.” Id.
States have relied on the significant nexus test to
protect the quantity and quality of navigable waters;
the health, safety, and economic interests of state residents who use those waters; and the fish and other wildlife that rely on those waters. See supra, at 18-21.
Moreover, States have structured their own waterrelated regulations based on the settled understanding
that the CWA covers waters, including wetlands, with
a significant nexus to navigable waters and their tributaries. Many States rely on the CWA as the sole source
of legal protection for wetlands in their jurisdictions.
Other States rely in part on the CWA, augmenting those
federal protections with state laws and resources.19 If
19 Approximately twenty States and the District of Columbia
have specific wetland protection laws or regulations. See, e.g.,
California: Cal. Water Code § 13140; Cal. Code Regs tit. 23,
§ 2926. Connecticut: Conn. Gen. Stat. Ann. §§ 22a-28 et seq., 22a36 et seq., 22a-90 et seq., 22a-359. Florida: Fla. Stat. Ann.
§§ 373.403 et seq., 373.414. Indiana: Ind. Code Ann. §§ 13-11-2221.5, 13-18-22-1 et seq. Maine: Me. Rev. Stat. Ann. tit. 38, § 480A et seq. Maryland: Md. Code Ann., Env’t §§ 5-901 et seq., 16-101
et seq. Massachusetts: Mass. Gen. Laws ch. 131, § 40; see also id.
ch. 130, § 105. Michigan: Mich. Comp. Laws Ann. § 324.30301 et
seq. Minnesota: Minn. Stat. Ann. § 103G.221 et seq. New Hampshire: N.H. Rev. Stat. Ann. § 482-A:1 et seq. New Jersey: N.J.
Stat. Ann. §§ 13:9A-1 et seq., 13:9B-1 et seq. New York: N.Y. Env’t
Conserv. Law §§ 24-0101 et seq., 25-0101 et seq. North Carolina:
N.C. Gen. Stat. Ann. §§ 113A-100 et seq., 113-229–113-230. Ohio:
Ohio Rev. Code Ann. §§ 1506.01 et seq., 6111.021 et seq. Oregon:
Or. Rev. Stat. Ann. § 196.800 et seq. Pennsylvania: 32 Pa. Stat.
and Cons. Stat. § 693.1 et seq. Rhode Island: 2 R.I. Gen. Laws
(continues on next page)
27
federal jurisdiction under the CWA were restricted as
petitioners propose, many States would have to develop
new regulatory programs to fill the void. At a minimum,
this process would take time and money. And even
when operational, these substitutes for the CWA’s
uniform federal program would result in a patchwork
of regulatory requirements among the States—to the
detriment of downstream States and contrary to
Congress’s intent.
New York, for example, designed its Freshwater
Wetlands Act to work in tandem with the CWA by
applying distinct state-law protections to regulated
activities affecting certain larger freshwater wetlands.
See N.Y. Env’t Conserv. Law § 24-0107. New York relies
on federal protections under the CWA to protect freshwater wetlands that fall outside the scope of the Freshwater Wetlands Act. Massachusetts’s regulation of wetlands also relies on federal law. For example, wetlands
across Massachusetts—including specific wetlands
identified in Bolton and in Marlborough—are not
protected by Massachusetts state law because they do
not meet size and location thresholds.20 Such wetlands
Ann. § 2-1-18 et seq.; 46 R.I. Gen. Laws Ann. § 46-23-1 et seq.
Tennessee: Tenn. Code Ann. § 69-3-108. Vermont: Vt. Stat. Ann.
tit. 10, § 913 et seq. Virginia: Va. Code Ann. §§ 28.2-1300 et seq.,
62.1-44.5, 62.1-44.15. Washington: Wash. Rev. Code Ann.
§ 77.55.011 et seq. Wisconsin: Wis. Stat. Ann. § 281.36. District
of Columbia: D.C. Code §§ 2-1226.38(3), 8-103.06, 8-103.09(d).
Some States have statutory or regulatory regimes directed
towards only coastal wetlands. See, e.g., Alabama: Ala. Admin.
Code r. § 335-8-2-.02–335-8-2-.03. Georgia: Ga. Code Ann. § 12-5280 et seq. Louisiana: La. Stat. Ann. § 49:214.21 et seq.
Mississippi: Miss. Code Ann. § 49-27-1 et seq. South Carolina:
S.C. Code Ann. § 48-39-10 et seq.
20 See Decl. of Kathleen M. Baskin, supra, ¶ 14; see also 310
Code Mass. Regs. § 10.57.
28
would be outside of the CWA’s jurisdiction if this Court
were to require that wetlands have a surface-water
connection to navigable waters to be “waters of the
United States,” even though they are otherwise “inseparably bound up with the ‘waters’ of the United States.”
Riverside Bayview Homes, 474 U.S. at 134.
Petitioners and their amici are incorrect in
contending that the significant nexus analysis is
“unworkable.” See e.g., W. Va. Amicus Br. 5. As an
initial matter, certain categories of wetlands may
reasonably be inferred to have a significant nexus with
navigable waters without the need for case-specific
determinations. See, e.g., Rapanos, 547 U.S. at 780-81
(Kennedy, J., concurring in the judgment). Where necessary, the case-specific analysis simply calls for looking
at the facts to discern whether a wetland has hydrologic
or other connections that significantly affect navigable
waters or their tributaries. Such fact-specific inquiries
are routine both in the law generally and in environmental permit regimes specifically.21 Indeed, agencies,
courts, and private parties have routinely applied the
significant nexus test to the circumstances presented in
specific cases without great difficulty. For example, the
Sixth Circuit found a significant nexus between
wetlands and navigable waters where evidence showed
that the wetlands filtered acid runoff and sediment
from a nearby mine and that excavating and filling
those wetlands had increased flood peaks in down21 For example, New York courts routinely consider whether
wetlands fall within the scope of New York’s Tidal Wetlands Act
and local ordinances. See, e.g., Matter of Pletenik v. Town of Brookhaven, 70 A.D.3d 954 (N.Y. App. Div. 2010) (municipal ordinance);
Matter of Jack Coletta, Inc. v. New York State Dep’t of Env’t
Conservation, 128 A.D.2d 755 (N.Y. App. Div. 1987) (New York
Tidal Wetlands Act).
29
stream waters. Cundiff, 555 F.3d at 210-11. The Ninth
Circuit concluded that a pond had a significant nexus
to a navigable river because the pond waters seeped
“into the river through both the surface wetlands and
the underground aquifer,” which resulted in increased
chloride levels in the river. Northern Cal. River Watch,
496 F.3d at 1000-01. And in finding that groundwater
created a significant nexus between wetlands and a
navigable water, the Third Circuit observed that watertesting evidence had demonstrated that bromide and
dye dissolved into the wetlands complex then flowed
into downstream waters. United States v. Donovan, 661
F.3d 174, 186 (3d Cir. 2011). Although different cases
will present different facts relevant to the significant
nexus analysis, these cases make clear that the
significant nexus test is workable.
Indeed, contrary to the suggestion of petitioners
and their amici (see Pet. Br. 47; W. Va. Amicus Br. 2223), courts have repeatedly applied the significant nexus
test in concluding that the specific evidence presented
did not establish a significant nexus between the
waters at issue and navigable waters indisputably
subject to the CWA. Even before Rapanos, this Court
found that a significant nexus was not present in
SWANCC, concluding that a pond isolated from any
jurisdictional waters was not sufficiently connected to
such waters based solely on their use as migratory bird
habitat. 531 U.S. at 171-72. And applying the considerations set forth in Rapanos, appellate courts have
required concrete showings to establish a significant
nexus. For example, the Fourth Circuit concluded that
the evidence before it did not establish a significant
nexus between wetlands and a navigable river seven
miles away, where the administrative record contained
no evidence of the actual flow of adjacent tributaries
30
and little evidence to connect the wetlands to a navigable water. Precon Development Corp., 633 F.3d at 294.
And in other cases, courts have likewise concluded that
the evidence presented was too speculative to establish
the requisite significant nexus between wetlands and
navigable waters.22 The claims of petitioners’ amici (e.g.,
W. Va. Amicus Br. 12) that the significant nexus test
extends the CWA’s jurisdiction to waters that are
purportedly far removed from navigable waters ignores
the way the test is typically administered in practice.
The practical experience of Amici States also belies
the assertions of petitioners and their amici that the
significant nexus test is too onerous and unduly hampers commercial activity. Permitting authorities have
“considerable flexibility in establishing permit terms
and conditions.” Catskill Mountains Chapter of Trout
Unlimited, Inc. v. City of New York, 451 F.3d 77, 85 (2d
Cir. 2006) (quotation marks omitted); see 40 C.F.R.
§ 125.3. And general permits can be issued to “an entire
class of hypothetical dischargers in a given geographical region,” allowing covered discharges to commence
automatically without the time and expense of an
individualized application process. See Northwest Env’t
Advocates v. EPA, 537 F.3d 1006, 1011 (9th Cir. 2008)
(quotation marks omitted); see 40 C.F.R. § 122.28. In
fact, more than 97 percent of the regulatory workload
22 See also Orchard Hill Bldg. Co. v. United States Army Corps
of Eng’rs, 893 F.3d 1017, 1024-25 (7th Cir. 2018); Lewis v. United
States, No. 2:18-cv-1838, 2020 WL 4798496, at *9 (Aug. 18, 2020),
op. modified on denial of reconsideration, 2020 WL 6269931 (E.D.
La. Oct. 26, 2020), appeal docketed, No. 21-30163 (5th Cir. Mar. 25,
2021); Black Warrior River-Keeper, Inc. v. Drummond Co., 387 F.
Supp. 3d 1271, 1289-90 (N.D. Ala. 2019); Hawkes Co. v. United
States Army Corps of Eng’rs, No. 13-cv-107, 2017 WL 359170, at
*3, 7-11 (D. Minn. Jan. 24, 2017).
31
of the Army Corps is processed in the form of general
permits.23
Indeed, an overwhelming number of applications to
the Army Corps, the agency primarily responsible for
issuing permits for dredge and fill that typically involve
wetlands, result in permit issuance. As the Army Corps
has explained, “less than one percent of all requests for
permits are denied,” and the limited denials are usually
to applicants who “have refused to change the design,
timing, or location of the proposed activity” to accommodate the concerns raised by the Army Corps.24 And
“concerned landowners need not risk fines or endure
the permit-application process before deciding whether
to build on or alter their property” because they can
obtain a “jurisdictional determination” from the Corps
as to whether their property contains “waters of the
United States.” See 33 C.F.R. §§ 320.1(a)(6), 325.9,
331.2; Orchard Hill Bldg., 893 F.3d at 1020-21. States
thus rely on the CWA to protect wetlands that satisfy
the significant nexus standard, and that standard has
proved workable.
23 Congressional Rsch. Serv., The Army Corps of Engineers’
Nationwide Permits Program: Issues and Regulatory Developments 2 (2017).
24 U.S. Army Corps of Eng’rs, Regulatory Program Frequently
Asked Questions (n.d.).
32
CONCLUSION
The judgment of the United States Court of
Appeals for the Ninth Circuit should be affirmed.
Respectfully submitted,
LETITIA JAMES
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
JUDITH N. VALE
Deputy Solicitor General
MARK S. GRUBE
Assistant Solicitor General
barbara.underwood@ag.ny.gov
June 2022
* Counsel of Record
(Counsel listing continues on next page.)
33
ROB BONTA
BRIAN E. FROSH
Attorney General
State of California
1300 I St.,
Sacramento, CA 95814
Attorney General
State of Maryland
200 Saint Paul Pl.
Baltimore, MD 21202
WILLIAM TONG
MAURA HEALEY
Attorney General
State of Connecticut
165 Capital Ave.
Hartford, CT 06106
Attorney General
Commonwealth of
Massachusetts
One Ashburton Pl.
Boston, MA 02108
KATHLEEN JENNINGS
KEITH ELLISON
Attorney General
State of Delaware
820 N. French St.
Wilmington, DE 19801
Attorney General
State of Minnesota
75 Rev. Dr. Martin Luther
King Jr. Blvd.
St. Paul, MN 55155
HOLLY T. SHIKADA
MATTHEW J. PLATKIN
Attorney General
State of Hawai‘i
425 Queen St.
Honolulu, HI 96813
Acting Attorney General
State of New Jersey
25 Market St.
Trenton, NJ 08625
KWAME RAOUL
HECTOR BALDERAS
Attorney General
State of Illinois
100 West Randolph St.
Chicago, IL 60601
Attorney General
State of New Mexico
P.O. Drawer 1508
Santa Fe, NM 87504
AARON M. FREY
JOSHUA H. STEIN
Attorney General
State of Maine
6 State House Station
Augusta, ME 04333
Attorney General
State of North Carolina
Department of Justice
114 W. Edenton St.
Raleigh, NC 27603
(Counsel listing continues on next page.)
34
ELLEN F. ROSENBLUM
JOSHUA L. KAUL
Attorney General
State of Oregon
1162 Court St. N.E.
Salem, OR 97301
Attorney General
State of Wisconsin
17 W. Main St.
Madison, WI 53703
THOMAS J. DONOVAN, JR.
KARL A. RACINE
Attorney General
State of Vermont
109 State St.
Montpelier, VT 05609
Attorney General
District of Columbia
400 6th St., NW
Washington, D.C. 20001
ROBERT W. FERGUSON
Attorney General
State of Washington
P.O. Box 40100
Olympia, WA 98504
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