Petition for Writ of Certiorari — Jeffrey Andrews, Petitioner v. United States
Supreme Court briefNov 20, 2025
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No.
In the Supreme Court of the United States
_________
J EFFREY A NDREWS ,
Petitioner,
v.
U NITED S TATES OF A MERICA ,
Respondent.
_________
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit
_________
PETITION FOR WRIT OF CERTIORARI
_________
PAIGE E. G ILLIARD
FRANK D. G ARRISON
S EAN R ADOMSKI
Pacific Legal Foundation
3100 Clarendon Blvd.,
Suite 1000
Arlington, VA 22201
(202) 888-6881
CHARLES T. Y ATES
Counsel of Record
D AMIEN M. S CHIFF
Pacific Legal Foundation
555 Capitol Mall,
Suite 1290
Sacramento, CA 95814
(916) 419-7111
cyates@pacificlegal.org
Counsel for Petitioner
QUESTION PRESENTED
Petitioner Jeffrey Andrews resides on his family
farm in Connecticut. His farm contains a short reach
of an unnamed tributary to the Farm River, but no
portion of the farm has a continuous surface water
connection to that tributary or to the Farm River.
In 2020, the United States—acting on behalf of the
Environmental Protection Agency—brought an enforcement action alleging that Mr. Andrews’ earthmoving projects to improve his farm disturbed wetlands that qualify as “navigable waters” under the
Clean Water Act.
In Sackett v. Environmental Protection Agency, 598
U.S. 651 (2023), this Court held that EPA may only
regulate those wetlands that are “as a practical matter indistinguishable” from covered waters. The Second Circuit nevertheless upheld EPA’s authority over
Mr. Andrews’ farm by omitting Sackett’s indistinguishability requirement, and by holding that, even
after Sackett, EPA may regulate wetlands lacking a
continuous surface water connection to covered waters.
The question presented is:
Was the Second Circuit correct to uphold Clean
Water Act authority over wetlands that are not “as a
practical matter indistinguishable” from covered waters?
ii
PARTIES TO THE PROCEEDING
The parties to the proceeding are listed on the caption.
iii
STATEMENT OF RELATED CASES
These proceedings are directly related to the abovecaptioned case under Rule 14.1(b)(iii):
Andrews v. Hall, No. 3:22-cv-00267-MPS (D. Conn.
Mar. 28, 2022).
Andrews v. Hall, No. 3:22-cv-00269-MPS (D. Conn.
Mar. 28, 2022).
Andrews v. Hall, No. 3:22-cv-00280-MPS (D. Conn.
Mar. 28, 2022).
Andrews v. Vatti, No. 3:22-cv-00332-MPS (D. Conn.
Mar. 28, 2022).
Andrews v. Vatti, No. 3:22-cv-00333-MPS (D. Conn.
Mar. 28, 2022).
Andrews v. Vatti, No. 3:22-cv-00334-MPS (D. Conn.
Mar. 28, 2022).
Andrews v. Vatti, No. 3:22-cv-00335-MPS (D. Conn.
Mar. 28, 2022).
Andrews v. Shea, No. 3:22-cv-00950-KAD (D. Conn.
Oct. 28, 2022).
Andrews v. Bianco, No. 3:22-cv-01335-KAD (D.
Conn. Nov. 28, 2022).
Andrews v. Hall, Nos. 22-1298, 22-1299, 22-1300,
22-1301, 22-1302, 22-1303, 2023 WL 309609 (2d Cir.
Jan. 19, 2023).
Andrews v. Vatti, No. 22-01308 (2d Cir. Jan. 19,
2023).
Andrews v. Hall, No. 22-02564 (2d Cir. Feb. 3,
2023).
United States v. Andrews, No. 3:20-cv-01300-JCH,
677 F. Supp. 3d 74 (D. Conn. Jun. 12, 2023).
Andrews v. Dooley, No. 3:22-cv-01185-VAB (D.
Conn. Jul. 11, 2023).
iv
Andrews v. Grillot, No. 3:22-cv-00873-KAD, 2023
WL 5228179 (D. Conn. Aug. 15, 2023), judgment entered Aug. 21, 2023.
Andrews v. United States, No. 1:24-cv-01088-EHM
(Ct. Fed. Cl. Feb. 28, 2025).
United States v. Andrews, No. 24-1479, 2025 WL
855763 (2d Cir. Mar. 19, 2025).
Andrews v. United States, No. 25-1926 (Fed. Cir.
Sep. 29, 2025).
v
TABLE OF CONTENTS
Petition for Writ of Certiorari .................................... 1
Opinions Below ........................................................... 1
Jurisdiction ................................................................. 1
Statutory Provision Involved ..................................... 1
Introduction ................................................................ 1
Statement of the Case ................................................ 5
A. EPA and the Corps target Jeffrey
Andrews’ projects to improve his
family farm .................................................. 5
B. The CWA and decades of unlawful
wetlands regulation ..................................... 8
C. The United States sues Mr. Andrews ....... 13
D. This Court’s decision in Sackett ................ 14
E. The district court rules against
Mr. Andrews ............................................... 15
F. The Second Circuit affirms EPA and
the Corps’ broad claim of authority to
regulate Mr. Andrews’ farm ...................... 17
Reasons for Granting the Petition ........................... 18
I. The decision below is irreconcilably in
conflict with Sackett ........................................ 18
A. The decision below ignores Sackett’s
requirement that regulable wetlands
must be indistinguishable from
covered waters ............................................ 18
1. Indistinguishability is the central
requirement of Sackett’s test ................ 18
2. The Second Circuit’s failure to
acknowledge—let alone apply—the
indistinguishability requirement
conflicts with Sackett ............................ 19
vi
B. The decision below contradicts Sackett’s
requirement that there must be a
continuous surface water connection
between a wetland and covered water ...... 22
1. Regulable wetlands must have a
continuous aquatic surface
connection to covered waters—the
Second Circuit’s holding to the
contrary conflicts with Sackett ............. 22
2. The Second Circuit’s emphasis on
the regulatory definition of
“wetlands” compounds its conflict
with Sackett .......................................... 25
II. The Court should intervene now lest the
decision below stand as an endorsement
of EPA and the Corps’ continued refusal
to conform their conduct to the CWA ............. 26
III. Mr. Andrews’ petition provides an excellent
vehicle for this Court to correct EPA and
the Corps’ continued refusal to conform
their conduct to the CWA ................................ 31
IV. The Court may wish to consider summary
disposition to correct the Second Circuit’s
grievous misapprehension of Sackett ............. 32
Conclusion ................................................................. 34
vii
APPENDIX
Summary Order, U.S. Court of Appeals for
the Second Circuit, filed March 19, 2025 ........... 1a
Ruling on Motion for Summary Judgment,
U.S. District Court for the District of
Connecticut, filed June 12, 2023 ......................... 8a
Default and Final Judgment, U.S. District
Court for the District of Connecticut,
filed May 3, 2024 ............................................... 39a
Order denying petition for panel rehearing,
U.S. Court of Appeals for the Second Circuit,
filed July 24, 2025 ............................................. 47a
viii
TABLE OF AUTHORITIES
Cases:
CNH Indus. N.V. v. Reese,
583 U.S. 133 (2018) ............................................. 33
Glynn Env’t Coal., Inc. v. Sea Island
Acquisition, LLC,
146 F.4th 1080 (11th Cir. 2025) .......................... 24
Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc.,
484 U.S. 49 (1987) ................................................. 9
Lewis v. United States,
88 F.4th 1073 (5th Cir. 2023) .............................. 27
Marmet Health Care Ctr., Inc. v. Brown,
565 U.S. 530 (2012) ............................................. 33
Pakdel v. City & Cnty. of San Francisco,
594 U.S. 474 (2021) ........................................ 32-33
Rapanos v. United States,
547 U.S. 715 (2006) .... 2-4, 10-12, 15-16, 18, 21-26,
30-32
Sackett v. U.S. Env’t Prot. Agency,
566 U.S. 120 (2012) ............................................. 27
Sackett v. U.S. Env’t Prot. Agency,
598 U.S. 651 (2023) ............ 2-4, 9-12, 14-15, 18-27,
30-33
Solid Waste Agency of Northern Cook Cnty. v.
U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) ................................... 3, 11, 26
U.S. Army Corps of Eng’rs v. Hawkes Co.,
578 U.S. 590 (2016) ......................................... 9, 27
United States v. Ace Black Ranches, LLP,
No. 1:24-cv-00113, 2024 WL 4008545
(D. Idaho Aug. 29, 2024)...................................... 30
ix
United States v. Andrews,
677 F. Supp. 3d 74 (D. Conn. 2023) ............... 29-30
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985) ............................................. 10
United States v. Sharfi, No. 2:21-cv-14205,
2024 WL 4483354 (S.D. Fla. Sep. 21, 2024) ....... 30
United States v. Sharfi, No. 2:21-cv-14205,
2024 WL 5244351 (S.D. Fla. Dec. 30, 2024) ....... 30
United States v. Sweeney, No. 2:17-cv-00112,
2024 WL 4527260 (E.D. Cal. Oct. 18, 2024) ....... 30
United States v. Valentine,
751 F. Supp. 3d 617 (E.D.N.C. 2024) .................. 30
Statutes:
28 U.S.C. § 1254(1) ..................................................... 1
§ 1291 ................................................................... 17
§ 1292(a)(1) .......................................................... 17
§ 1331 ................................................................... 13
§ 1345 ................................................................... 13
33 U.S.C. § 1311 ........................................................ 13
§ 1311(a) ............................................................. 2, 8
§ 1318 ............................................................... 8, 13
§ 1342(a) ................................................................. 9
§ 1342(b) ................................................................. 9
§ 1344(a) ................................................................. 9
§ 1344(g) ................................................................. 9
§ 1344(g)(1) .......................................................... 19
§ 1362(7) .......................................................... 1-2, 8
§ 1362(8) ................................................................. 8
§ 1362(12) ........................................................... 2, 8
§ 1365 ..................................................................... 9
§ 2802(5) ............................................................... 23
x
Regulations:
33 C.F.R. § 328.3(a)(1) (2004) ................................... 10
§ 328.3(a)(3) (2004) .............................................. 10
§ 328.3(a)(5) (2004) .............................................. 10
§ 328.3(a)(7) (2004) .............................................. 10
§ 328.3(c) (2004) ................................................... 10
§ 328.3(c)(1) ......................................... 17, 20, 23-25
Other Authorities:
42 Fed. Reg. 37,122 (Jul. 19, 1977) .......................... 10
51 Fed. Reg. 41,206 (Nov. 13, 1986) ......................... 11
88 Fed. Reg. 3004 (Jan. 18, 2023) ............................ 24
Demarcate, Oxford Dictionary of English
(3d ed. 2010)......................................................... 21
Demarcate, Webster’s New World
College Dictionary (5th ed. 2014) ....................... 21
Federal Defendants’ Combined Memorandum
in Support of Their Motion for Summary
Judgment and Opposition to Plaintiffs’ and
Business Intervenors’ Motions for
Summary, West Virginia v. U.S. Env’t Prot.
Agency, No. 3:23-cv-00032
(D.N.D. Apr. 26, 2024), ECF No. 210 ............. 27-29
Federal Defendants’ Combined Motion for
Summary Judgment and Opposition to
Plaintiffs’ Motions for Summary Judgment,
Texas v. U.S. Env’t Prot. Agency,
No. 3:23-cv-00017 (S.D. Tex. Apr. 2, 2024),
2024 WL 2980869 ........................................... 28-29
Gardner, Royal C., Waters of the United States:
POTUS, SCOTUS, WOTUS, and the
Politics of a National Resource
(Island Press 2024) .............................................. 19
xi
Kihslinger, Rebecca L., et al.,
Unpacking the Revised WOTUS Rule,
53 Env’t L. Rep. 10887 (2023) ............................. 20
Mandelker, Daniel R., Practicable Alternatives
for Wetlands Development Under the Clean
Water Act, 48 Env’t L. Rep. News &
Analysis 10894 (2018) ........................................... 9
Opposition to Plaintiff’s Motion for
Preliminary Injunction, White v. U.S. Env’t
Prot. Agency, 737 F. Supp. 3d 310
(E.D.N.C. 2024) (No. 2:24-cv-00013),
ECF No. 24 (May 7, 2024) ................................... 29
Parrillo, Nicholas R., Federal Agency Guidance
and the Power to Bind: An Empirical Study
of Agencies and Industries,
36 Yale J. on Reg. 165 (2019) ........................ 12, 26
Plaintiff’s Opposition to Defendant’s Motion
to Dismiss, United States v. Ace Black
Ranches, LLP, No. 1:24-cv-00113
(D. Idaho Jun. 7, 2024), 2024 WL 4816724 ........ 27
Plaintiff United States of America’s
Opposition to Defendants’ Motion for
Judgment on the Pleadings, United
States v. Valentine, 751 F. Supp. 3d 617
(E.D.N.C. 2024) (No. 5:22-cv-00512),
2024 WL 1495519 (Jan. 26, 2024).................. 28-29
Response Brief of Federal Appellees,
White v. U.S. Env’t Prot. Agency,
No. 24-1635 (4th Cir. Dec. 20, 2024),
2024 WL 5210158 ........................................... 27-28
xii
United States’ Opposition to Defendants’
Post-Judgment Motion Regarding Sackett
v. EPA, 598 U.S. 651 (2023), United States
v. Sweeney, No. 2:17-cv-00112
(E.D. Cal. Jan. 25, 2024),
2024 WL 5471328 ........................................... 28-29
United States’ Reply in Support of United
States’ Motion for Summary Judgment
and Opposition to Defendants’ CrossMotion for Summary Judgment, United
States v. Sharfi, No. 2:21-cv-14205
(S.D. Fla. Dec. 22, 2023), ECF No. 158 .......... 28-30
Waters, Webster’s New International Dictionary
(2d ed. 1934).................................................... 11-12
PETITION FOR WRIT OF CERTIORARI
Petitioner Jeffrey Andrews respectfully petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Second Circuit.
OPINIONS BELOW
The summary order of the Second Circuit is not reported but is available at 2025 WL 855763, and is reproduced in the Appendix beginning at 1a. The opinion of the United States District Court for the District
of Connecticut is reported at 677 F. Supp. 3d 74, and
is reproduced in the Appendix beginning at 8a. The
Second Circuit’s order denying rehearing is reproduced in the Appendix at 47a.
JURISDICTION
The date of the decision sought to be reviewed is
March 19, 2025. On July 24, 2025, the Second Circuit
denied a petition for rehearing. On September 24,
2025, this Court granted an application for an extension of time to file a petition for writ of certiorari, to
and including November 21, 2025. This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
33 U.S.C. § 1362(7): “The term ‘navigable waters’
means the waters of the United States, including the
territorial seas.”
INTRODUCTION
Petitioner Jeffrey Andrews is a poultry and cattle
farmer from rural Connecticut. For the last fifteen
years, Mr. Andrews has been subjected to enforcement
activity by the United States government. Mr. Andrews found himself in this position because the
2
United States Environmental Protection Agency and
the United States Army Corps of Engineers contend
that his family farm is subject to federal authority under the Clean Water Act (CWA). According to these
agencies, Mr. Andrews is liable for as much as $2 million in civil penalties, see infra note 8, because, before
beginning various earthmoving projects to improve
his farm, he failed to obtain a CWA permit from the
Corps. EPA and the Corps have remained steadfast
in their position, even though no area where Mr. Andrews performed his projects is a “stream[], ocean[],
river[], [or] lake[],” Sackett v. U.S. Env’t Prot. Agency,
598 U.S. 651, 671 (2023) (quoting Rapanos v. United
States, 547 U.S. 715, 739 (2006) (plurality opinion)),
and even though the project areas are readily distinguishable from, and lack a continuous surface water
connection to, any such water body, see infra Reasons
Part III.
The CWA authorizes EPA and the Corps to regulate discharges of “pollutants” from “point sources”
into “navigable waters,” 33 U.S.C. §§ 1311(a),
1362(12)—defined to include “the waters of the United
States,” id. § 1362(7). This definition functions as an
absolute limitation on EPA and the Corps’ authority—
these agencies may regulate discharges of pollutants
to “navigable waters,” but no further. Between 1973
and 2023, however, the agencies steadily expanded
their claimed authority by broadly interpreting the
term “navigable waters” to the point where it reached
“almost all waters and wetlands” in the country.
Sackett, 598 U.S. at 669. As a result, ordinary citizens
seeking to make reasonable use of their property were
left “in a precarious position.” Id. Worse still, EPA
and the Corps pursued this course of conduct notwithstanding this Court’s intervening twice to rein in the
3
agencies’ extravagant view of their own authority. See
Rapanos, 547 U.S. 715; Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Eng’rs
(SWANNC), 531 U.S. 159 (2001).
In Sackett this Court again corrected EPA and the
Corps’ aggrandized view of their CWA regulatory authority. See Sackett, 598 U.S. at 657. In Sackett, this
Court unanimously rejected the test upon which the
agencies had most recently staked their authority to
broadly regulate—the so-called “significant nexus”
test. See id. at 684; id. at 715-16 (Kavanaugh, J., concurring in the judgment). And a majority set forth a
clear standard for CWA authority. Under Sackett,
EPA and the Corps may only regulate (1) “those relatively permanent, standing or continuously flowing
bodies of water ‘forming geographic[al] features’ that
are described in ordinary parlance as ‘streams,
oceans, rivers, and lakes,’” id. at 671 (quoting Rapanos, 547 U.S. at 739 (plurality opinion)); and (2)
“wetlands that are ‘as a practical matter indistinguishable’” from such waters, id. at 678 (quoting Rapanos, 547 U.S. at 755 (plurality opinion)).
Sackett necessitated a dramatic break from EPA
and the Corps’ historical practices. Yet even after
Sackett, landowners like Mr. Andrews find themselves
subject to expansive claims of CWA authority over
their properties. Indeed, in the wake of Sackett—in
Mr. Andrews’ case and others—the agencies have assiduously sought to minimize Sackett’s impact on
their authority to regulate. See infra notes 12-14.
This response demonstrates the lamentable continuation of a familiar pattern of agency insubordination.
As this Court observed, after every prior loss before
this Court, EPA and the Corps remained committed to
4
an overly broad view of their own authority. See Sackett, 598 U.S. at 666-67 (recounting this history).
The Second Circuit recently acquiesced in this renewed effort from the agencies. In affirming that Mr.
Andrews was liable for violating the CWA by discharging dredged and fill material into alleged wetlands, the Second Circuit disregarded Sackett’s requirement that regulable wetlands must be “as a practical matter indistinguishable” from covered waters.
See App. 5a. And—in defiance of Sackett’s express requirements—the Second Circuit held that EPA and
the Corps may continue regulating even those wetlands lacking a continuous surface water connection
to covered waters. See App. 5a.
This Court should again intervene to rein in the
claimed authority of two agencies “whose disregard
for the statutory language has been so long manifested.” Rapanos, 547 U.S. at 756 n.15 (plurality opinion). The decision below is irreconcilably in conflict
with Sackett. See infra Reasons Part I. Making matters worse, if left undisturbed, the Second Circuit’s decision will stand as a regrettable endorsement of the
pattern of intransigence that has come to characterize
EPA and the Corps’ attitude toward this Court’s decisions. See infra Reasons Part II. Finally, Mr. Andrews’ case is an excellent vehicle to end EPA and the
Corps’ continued refusal to heed the CWA’s requirements—the record is clear that the alleged wetlands
on Mr. Andrews’ farm are not regulable under Sackett’s test, properly construed. See infra Reasons Part
III.1
The Court may wish to consider summary disposition. Summary disposition is appropriate because the decision below rests
1
5
STATEMENT OF THE CASE
A. EPA and the Corps target Jeffrey Andrews’ projects to improve his family farm
In 2001, Jeffrey Andrews and his wife Lynn Cooke
Andrews purchased two adjoining parcels of land—
approximating 72 acres in Wallingford, Connecticut
(“northern parcel”), and North Branford, Connecticut
(“southern parcel”) (together, the “farm”). Local Rule
56(a)1 Statement in Support of Plaintiffs’ Motion for
Summary Judgment on Liability (SOUMF) at 1 ¶¶ 23, U.S. District Court District of Connecticut case no.
3:20-cv-01300, docket no. 224-2 (filed Oct. 21, 2022).2
Aside from being Mr. and Mrs. Andrews’ place of
residence, the farm is primarily maintained in
pasture for purposes of raising chickens and cattle.
Crossing the northern parcel is approximately 690
linear feet of an unnamed tributary of the Farm River
(the “unnamed tributary”). See App. 12a. The
unnamed tributary has a “well-formed” bank with an
ordinary high-water mark and is described by the
government’s expert as perennial. Declaration of
Raymond Putnam in Support of Motion for
Preliminary Injunction (Putnam Decl.) at 12 ¶ 39,
U.S. District Court District of Connecticut case no.
3:20-cv-01300, docket no. 8-5 (filed Sep. 3, 2020).
Offsite lie two additional tributaries of the Farm
River. First, to the north lies a tributary flowing into
on a grievous legal error of great magnitude. See infra Reasons
Part IV.
On December 28, 2011, Mr. and Mrs. Andrews transferred
ownership of the farm to their children, Wesley W. Andrews,
Colton C. Andrews, and Ellery E. Andrews. See App. 11a-12a.
Mr. and Mrs. Andrews have, however, continued to reside on,
and farm, the property.
2
6
the unnamed tributary from the east (the “northeast
tributary”). See Exhibit A to Declaration of Peter M.
Stokely: Aerial Photography Interpretation and Geographic Information System Analysis of the Andrews’
Site in Wallingford, CT (Stokely Report) at 8-10, 21,
U.S. District Court District of Connecticut case no.
3:20-cv-01300, docket no. 224-4 (filed Oct. 21, 2022).
Second, to the south lies a tributary flowing southward to join the unnamed tributary (the “southern
tributary”). See id. The northeast tributary is described by the government’s expert as intermittent.
See Exhibit A to Declaration of T. Andrew Earles:
Analysis of Hydrology & Regulatory Status of Unnamed Tributary and Other Tributaries to the Farm
River and Riparian & Wetland Areas on Andrews’
Property (Earles Report) at 12, U.S. District Court
District of Connecticut case no. 3:20-cv-01300, docket
no. 224-6 (filed Oct. 21, 2022). The southern tributary
flows only during rainfall-runoff events and is described as ephemeral. See id.
Other than during rainfall-runoff events, no
surface water connection exists between the farm and
the unnamed tributary, and the farm and the
southern tributary. See Earles Report at 13-15, U.S.
District Court District of Connecticut case no. 3:20-cv01300, docket no. 224-6 (filed Oct. 21, 2022). There is
likewise no continuous surface water connection
between the farm and the northeast tributary. See id.
at 12 (observing intermittent flow and “drying up” in
the northeast tributary).
7
A graphic depiction of the farm showing the
unnamed tributary is as follows:
Exhibit A to Complaint, U.S. District Court District of
Connecticut case no. 3:20-cv-01300, docket no. 1-1
(filed Sep. 2, 2020).
From 2008 through 2020, Mr. Andrews performed
a variety of earthmoving and other projects to improve
the farm. See SOUMF at 5-6, ¶¶ 31-34, 38, U.S.
District Court District of Connecticut case no. 3:20-cv01300, docket no. 224-2 (filed Oct. 21, 2022).
Following a telephone call from a Town of Wallingford
wetland enforcement officer, on April 27, 2010, the
Corps opened an enforcement file as to these
activities. App. 16a. This was followed by a 2011 site
visit in which officials from the Corps entered the
farm and asserted that it contains “wetlands” subject
to regulation as “navigable waters” under the CWA.
App. 16a. These officials directed Mr. Andrews to
cease work until he obtained authorization from the
Corps. App. 16a. Following further investigation, on
November 12, 2017, the Corps referred the matter to
8
EPA for enforcement. App. 17a. The Corps then
issued a Notice of Violation and Cease and Desist
letter to Mr. and Mrs. Andrews on March 20, 2018.
App. 17a. And on May 16, 2018, EPA sent notification
letters to Mr. and Mrs. Andrews and their children
reiterating the Corps’ assertion of authority and
threatening enforcement for alleged violations of the
CWA. App. 17a.
EPA followed up with a series of information and
access requests issued pursuant to CWA section 308,
33 U.S.C. § 1318. App. 17a. EPA then secured an ex
parte administrative warrant, and between May 20,
2019, and June 17, 2019, conducted a series of site
visits. App. 17a-18a. Soon thereafter, EPA sent the
Andrews family a Notice of Clean Water Act
Violations, threatening further enforcement. App.
18a.
B. The CWA and decades
wetlands regulation
of
unlawful
The CWA regulates discharges of “pollutants” from
“point sources” to “navigable waters.” 33 U.S.C.
§§ 1311(a), 1362(12). The CWA defines “navigable
waters” as “the waters of the United States, including
the territorial seas.” Id. § 1362(7). Although the CWA
defines “territorial seas,” it does not define “the waters
of the United States.” Id. § 1362(8).
Nonexempt discharges to “navigable waters”
require a permit from either EPA (called a National
Pollutant Discharge Elimination System, or NPDES,
permit) or, if the discharge involves “dredged or fill
material,” from the Corps (commonly called a Section
9
404 permit). See 33 U.S.C. §§ 1342(a), 1344(a).3 In
practice, the CWA’s permitting regime is timeconsuming and expensive. See U.S. Army Corps of
Eng’rs v. Hawkes Co., 578 U.S. 590, 594-95 (2016)
(observing that a Section 404 permit typically takes
more than two years and $270,000 in consulting costs
to secure). Even if obtained, a permit can result in
significant changes to the applicant’s intended
operations and may substantially limit the use of the
property. See Daniel R. Mandelker, Practicable
Alternatives for Wetlands Development Under the
Clean Water Act, 48 Env’t L. Rep. News & Analysis
10894, 10913 (2018) (“The [Clean Water Act’s]
practicable alternatives requirement functions . . . as
a conditioned permit that requires project
modifications to reduce a development’s effect on
wetlands resources.”). A person who discharges
pollutants without a required permit, or who violates
permit conditions, risks administrative compliance
orders, administrative penalties, civil penalties and
injunctions, and even criminal prosecution. See
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc., 484 U.S. 49, 52-53 (1987). These
penalties are severe. See Sackett, 598 U.S. at 660
(“[The CWA] imposes what have been described as
‘crushing’ consequences ‘even for inadvertent
violations.’” (quoting Hawkes Co., 578 U.S. at 602
(Kennedy, J., concurring))). The CWA also authorizes
private citizen suits to enforce its requirements. See
33 U.S.C. § 1365.
The CWA authorizes the agencies to delegate their
permitting authorities to the states. See 33 U.S.C. §§ 1342(b),
1344(g).
3
10
The significant costs and liabilities that the CWA
can impose underscore the vital importance of clearly
demarcating its geographic reach—that is, the
meaning of the term “navigable waters.” See Sackett,
598 U.S. at 661. Unfortunately, since the early days
of the CWA’s implementation, EPA and the Corps
have construed their own authority in the broadest
and most vaguely opaque terms possible.
In the years immediately following the CWA’s
enactment, EPA and the Corps embarked upon a
series of rulemakings in which they purported to
extend the scope of “navigable waters” to the outer
limits of Congress’s power to regulate interstate
commerce. See Rapanos, 547 U.S. at 724 (plurality
opinion) (citing 42 Fed. Reg. 37,122, 37,144 n.2
(Jul. 19, 1977)). Thus, federal permitting authority
was asserted not just over interstate waters, but also
intrastate waters with various asserted relationships
to interstate or foreign commerce, as well as all
tributaries of such waters, and all “wetlands”
“adjacent” to, i.e., bordering, contiguous, or
neighboring, any regulated water. Id. (citing 33
C.F.R. § 328.3(a)(1), (a)(3), (a)(5), (a)(7), and § 328.3(c)
(2004)).
Between 1985 and 2006, this Court addressed the
geographic scope of the agencies’ authority three
times.
First, in United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121 (1985), the Court upheld the
agencies’ regulation of wetlands that were
immediately adjacent to, and “inseparably bound up
with,” navigable-in-fact waters. Id. at 131 & n.8, 134.
The agencies “responded to Riverside Bayview by
expanding their interpretations even further.”
11
Sackett, 598 U.S. at 665. Among other things, the
agencies stretched their claimed authority to cover
isolated waters used by migratory birds, under the socalled “Migratory Bird Rule.” Rapanos, 547 U.S. at
725 (plurality opinion) (citing 51 Fed. Reg. 41,206,
41,217 (Nov. 13, 1986)). This brought the agencies
back to this Court in 2001. That year, in SWANNC,
531 U.S. 159, the Court struck down the Migratory
Bird Rule, thereby rejecting the agencies’ attempted
regulation of “nonnavigable, isolated, intrastate
waters.” Id. at 166-69, 171.
Undeterred, and mere “[d]ays” after the Court
rendered its decision, EPA and the Corps “issued
guidance that sought to minimize SWANCC’s impact.”
Sackett, 598 U.S. at 666. This brought the agencies
before this Court yet again. In 2006, in Rapanos, 547
U.S. 715, a majority of the Court held the agencies’
broad interpretation of “navigable waters” to be
invalid insofar as it would reach all tributaries of
traditionally navigable waters and all wetlands
adjacent to such tributaries. Id. at 728 (plurality
opinion); id. at 759 (Kennedy, J., concurring in the
judgment). But no opinion explaining why the CWA
cannot be so construed garnered a majority of the
Justices’ votes.
Writing for three other members of the Court,
Justice Scalia argued that the scope of the agencies’
authority can extend no further than “waters,” id. at
731 (plurality opinion), and that the ordinary meaning
of “waters” includes “only those relatively permanent,
standing or continuously flowing bodies of water
‘forming geographic features’ that are described in
ordinary parlance as ‘streams[,] . . . oceans, rivers,
[and] lakes,’” id. at 739 (plurality opinion) (quoting
Waters, Webster’s New International Dictionary 2882
12
(2d ed. 1934)). As for wetlands, Justice Scalia argued
that “only those wetlands with a continuous surface
connection to bodies that are ‘waters of the United
States’ in their own right, so that there is no clear
demarcation between ‘waters’ and wetlands, are
‘adjacent to’ such waters and covered by the Act.” Id.
at 742.
Although Justice Kennedy provided the fifth vote
to support the Court’s judgment, he disagreed with
the plurality’s rationale. Id. at 759 (Kennedy, J.,
concurring in the judgment).
Justice Kennedy
concluded that the CWA does not necessarily foreclose
the regulation of occasionally flowing waters. Id. at
770-72. And he rejected the plurality’s standard for
wetlands authority, instead proposing a broad
“significant nexus” standard. Id. at 759. According to
this standard, a wetland could be regulated if it, either
alone or in combination with other “similarly
situated” wetlands in the “region,” significantly
affects the physical, chemical, and biological integrity
of a traditional navigable water. Id. at 779-80.
“In the decade following Rapanos, the EPA and the
Corps issued guidance documents that ‘recognized
larger grey areas and called for more fact-intensive
individualized determinations in those grey areas.’”
Sackett, 598 U.S. at 667 (quoting Nicholas R. Parrillo,
Federal Agency Guidance and the Power to Bind: An
Empirical Study of Agencies and Industries, 36 Yale
J. on Reg. 165, 231 (2019)). Then followed a “flurry,”
Sackett, 598 U.S. at 668, of unsuccessful rulemakings,
which—with limited exception—continued to broadly
construe the agencies’ authority, see id. at 668-69.
13
C. The United States sues Mr. Andrews
It was during this period of regulatory flux that the
government filed suit against the Andrews family. On
September 2, 2020, the United States—on behalf of
EPA—filed a civil enforcement action against Mr.
Andrews, his wife, and his children. See App. 18a.4
The government alleged that they had violated section
301 of the CWA, 33 U.S.C. § 1311, by discharging
dredged and fill material into wetlands allegedly
subject to federal authority, without a permit. See
App. 8a. The government also alleged that the
Andrews family had violated section 308 of the CWA,
33 U.S.C. § 1318, by failing to respond to EPA’s
information requests. See App. 8a.5
The government moved for summary judgment as
to liability.6
As to its section 301 claim, the
government argued that the farm historically
contained a 16.3 acre “wetland complex”; that this
wetland complex was “adjacent to” the unnamed
tributary such that it was in its entirety subject to
EPA and the Corps’ CWA authority; and that Mr.
The basis for jurisdiction in the district court was 28 U.S.C.
§§ 1331, 1345. See Complaint at 2 ¶ 4, U.S. District Court District of Connecticut case no. 3:20-cv-01300, docket no. 1 (filed
Sep. 2, 2020).
4
The Andrews family’s counsel withdrew from the matter in
late 2021, and Mr. Andrews represented himself pro se for the
remainder of the proceedings below. See App. 2a, 20a-21a. Mr.
Andrews’ wife and children did not enter pro se appearances, and
on May 31, 2022, had default entered against them. See App. 12a
n.1.
5
Proceedings in the district court were bifurcated into liability
and remedy phases. After the district court’s entry of summary
judgment as to liability, the district court then considered the
appropriate remedy. The remedy phase is ongoing. See App.
39a-45a.
6
14
Andrews therefore violated CWA section 301 by
discharging dredged and fill material into
approximately 13.3 acres of those wetlands without a
permit. See Memorandum in Support of Plaintiffs’
Motion for Summary Judgment on Liability at 26-36,
U.S. District Court District of Connecticut case no.
3:20-cv-01300, docket no. 224-1 (filed Oct. 21, 2022).
The government argued that the alleged 16.3-acre
wetland complex was subject to CWA authority under
both the Rapanos plurality’s test, and the significant
nexus test. See id. at 26-36. But as noted above, the
facts in the record demonstrate that, other than
during rainfall-runoff events, no surface water
connection exists between the alleged wetlands and
the unnamed tributary. See Earles Report at 13-15,
U.S. District Court District of Connecticut case no.
3:20-cv-01300, docket no. 224-6 (filed Oct. 21, 2022).
Accordingly, in arguing that the alleged wetlands
were subject to federal authority under the Rapanos
plurality’s test, the government took the position that
the test “does not require surface water to be
continuously present between the wetland and the
tributary,” much less that the wetland be
indistinguishable
from
the
tributary.
See
Memorandum in Support of Plaintiffs’ Motion for
Summary Judgment on Liability at 34-35, U.S.
District Court District of Connecticut case no. 3:20-cv01300, docket no. 224-1 (filed Oct. 21, 2022).
D. This Court’s decision in Sackett
While Mr. Andrews’ case was pending in the district court, EPA was back at this Court. On May 25,
2023, in Sackett, 598 U.S. 651, this Court concluded
“that the Rapanos plurality was correct: the CWA’s
15
use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of
water “forming geographic[al] features” that are described in ordinary parlance as “streams, oceans, rivers, and lakes.”’” Id. at 671 (quoting Rapanos, 547
U.S. at 739 (plurality opinion)).
As for wetlands, the Court concluded that “wetlands must qualify as ‘waters of the United States’ in
their own right.” Id. at 676. Thus, EPA and the Corps
may regulate only those wetlands that are “‘as a practical matter indistinguishable from waters of the
United States,’ such that it is ‘difficult to determine
where the “water” ends and the “wetland” begins.’” Id.
at 678 (quoting Rapanos, 547 U.S. at 742 (plurality
opinion)). This “occurs when wetlands have ‘a continuous surface connection to bodies that are “waters of
the United States” in their own right, so that there is
no clear demarcation between “waters” and wetlands.’” Id. (quoting Rapanos, 547 U.S. at 742 (plurality opinion)).
E. The district court rules against Mr. Andrews
Just eighteen days after this Court issued its decision in Sackett, on June 12, 2023, the district court
granted summary judgment against Mr. Andrews as
to liability for his alleged violations of CWA section
301. See App. 24a-36a.7 In so doing, the district court
determined that the unnamed tributary is a “relatively permanent” water and therefore covered under
Sackett. App. 32a-33a. It also determined that the
entire 16.3-acre alleged “wetland complex” is subject
The district court also granted summary judgment as to Mr.
Andrews’ alleged CWA section 308 violations. See App. 36a-37a.
7
16
to federal authority. App. 31a-33a. In reaching this
conclusion, the district court determined that the Rapanos plurality’s test (and thus Sackett’s) requires
only a “‘continuous physical connection’ to covered waters.” App. 33a (quoting Rapanos, 547 U.S. at 747, 751
n.13, 755 (plurality opinion)). Accordingly, the district
court concluded that the alleged wetlands
“abut[ting],” App. 31a-32a, the unnamed tributary—
along with the existence of “continuous surface flow
paths link[ing] the wetlands with the Unnamed Tributary” during rainfall-runoff events, App. 33a—was
sufficient.
On May 3, 2024, the district court entered a default
and final judgment.8 App. 39a-40a. Mr. Andrews
then timely appealed to the Second Circuit. App. 3a.
The district court entered final judgment against Mr.
Andrews as to liability. App. 39a-40a. In light of the other
defendants’ prior default, the district court entered default
judgment against Lynn Cooke Andrews, Wesley Andrews, Colton
Andrews, and Ellery Andrews. App. 39a-40a. The district court
also, among other things, issued an injunction requiring the
Andrews family to restore the allegedly disturbed wetlands. See
App. 40a-45a. The district court will assess civil penalties
following completion of restoration. See App. 45a. These
penalties could be substantial. See Ruling and Order on Remedy
(Doc. No. 250) and Motion to Dismiss (Doc. No. 253) at 37, U.S.
District Court District of Connecticut case no. 3:20-cv-01300,
docket no. 256 (filed Mar. 27, 2024) (“[A] penalty of $2 million
against Mr. Andrews for the section 301 violations . . . is
appropriate, subject to possible reduction . . . .”).
8
17
F. The Second Circuit affirms EPA and the
Corps’ broad claim of authority to regulate Mr. Andrews’ farm
At the Second Circuit, the government continued to
argue that Sackett does not require a continuous surface water connection and that a wetland’s mere
“physical abutment” to a covered water will suffice.
See United States’ Answering Brief at 25-27, Second
Circuit case no. 24-1479, docket no. 44 (filed Sep. 24,
2024).
On March 19, 2025, the Second Circuit agreed,9
holding tersely that “the CWA does not require surface water but only soil that is regularly ‘saturated by
surface or ground water.’” App. 5a (quoting 33 C.F.R.
§ 328.3(c)(1)).10
On July 24, 2025, the Second Circuit denied Mr.
Andrews’ petition for panel rehearing. App. 47a.
Before reaching the merits, the Second Circuit addressed its
jurisdiction. The Second Circuit noted that a finding of liability
is typically not treated as a final decision under 28 U.S.C. § 1291.
App. 3a-4a. Yet because the order appealed from entered
injunctive relief, the Second Circuit concluded that it had
appellate jurisdiction under 28 U.S.C. § 1292(a)(1). App. 4a.
9
10 The Second Circuit also affirmed Mr. Andrews’ liability for
the alleged violations of CWA section 308, App. 4a-5a, and it
rejected various arguments Mr. Andrews made under the
Submerged Lands Act and the United States Constitution, App.
5a-6a. Mr. Andrews does not seek this Court’s review as to those
issues.
18
REASONS FOR GRANTING THE PETITION
I. The decision below is irreconcilably in conflict with Sackett
A. The decision below ignores Sackett’s requirement that regulable wetlands must
be indistinguishable from covered waters
1. Indistinguishability is the central requirement of Sackett’s test
Key to Sackett’s test is that regulable wetlands
“must be indistinguishably part of a body of water that
itself constitutes ‘waters’ under the CWA.” 598 U.S.
at 676. “Wetlands that are separate from [regulable
waters,]” on the other hand, “cannot be considered
part of those waters, even if they are located nearby.”
Id. Sackett phrases this indistinguishability requirement in various ways. See id. at 678 (requiring “‘that
there is no clear demarcation between “waters” and
wetlands[]’” (quoting Rapanos, 547 U.S. at 742 (plurality opinion))); id. at 678-79 (“This requires the
party asserting jurisdiction . . . to establish . . . ‘that
the wetland has a continuous surface connection with
that water, making it difficult to determine where the
“water” ends and the “wetland” begins.’” (quoting Rapanos, 547 U.S. at 742 (plurality opinion))). But the
essential point is clear: “the CWA extends to only
those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’” Id. at
678 (quoting Rapanos, 547 U.S. at 755 (plurality opinion)). Indeed, so central is Sackett’s indistinguishability requirement that the Court’s ultimate conclusion
that the Sacketts’ property was not subject to federal
authority hinged on the distinguishability of the wetlands at issue. See id. at 684 (“The wetlands on the
19
Sacketts’ property are distinguishable from any possibly covered waters.”).
Sackett placed this emphasis on indistinguishability because the CWA seeks to protect “waters”—such
as rivers, lakes, and streams—so that features like
wetlands that are typically regarded as non-waters,
see id. at 674, can be regulated only when they “qualify as ‘waters of the United States’ in their own right,”
id. at 676. Accord Royal C. Gardner, Waters of the
United States: POTUS, SCOTUS, WOTUS, and the
Politics of a National Resource 95 (Island Press 2024)
(“But wetlands fell outside Justice Scalia’s constricted
view of ‘the waters’: Wetlands generally were not ‘waters of the United States.’”). That the CWA contains
an oblique reference to “wetlands adjacent” to certain
waters in a provision concerning permitting, 33 U.S.C.
§ 1344(g)(1), did not counsel otherwise. Rather, the
Court held that this reference to “adjacent wetlands”
must be “harmonize[d]” with the “operative” term
“waters.” Sackett, 598 U.S. at 676. Thus, to be regulated, an “adjacent wetland” must be “indistinguishably part of a body of water[.]” Id. In other words, regulation of “indistinguishabl[e]” adjacent wetlands is
permissible—but only incidentally to the CWA’s regulation of true “waters.” Cf. id.
2. The Second Circuit’s failure to
acknowledge—let alone apply—the indistinguishability requirement conflicts with Sackett
The Second Circuit ignored Sackett’s central indistinguishability requirement. Indeed, the Second Circuit’s recitation of Sackett’s test—and its application
20
of that test to the facts of this case—is stated entirely
as follows:
The CWA applies to wetlands that have “a continuous surface connection” with “relatively permanent bod[ies] of water connected to traditional
interstate navigable waters.” . . . So the CWA
does not require surface water but only soil that
is regularly “saturated by surface or ground water.” . . . And Andrews fails to rebut the expert
report concluding that his property had wetlands
connected to traditional navigable waters.
App. 5a (quoting respectively Sackett, 598 U.S. at 678,
and 33 C.F.R. § 328.3(c)(1)).
The Second Circuit’s reading—which entirely
omits Sackett’s central indistinguishability requirement—is plainly in conflict with Sackett. To recite
and apply Sackett’s test in such a manner as to completely elide the indistinguishability requirement
makes a wash of Sackett’s central holding: that the
CWA only regulates “waters,” Sackett, 598 U.S. at
671, so that features like wetlands that are typically
regarded as non-waters, see id. at 674, can be regulated only when they “qualify as ‘waters of the United
States’ in their own right,” id. at 676. Accord Rebecca
L. Kihslinger, et al., Unpacking the Revised WOTUS
Rule, 53 Env’t L. Rep. 10887, 10892 (2023) (emphasizing that the word “indistinguishable” in Sackett is “not
a mere rhetorical flourish”).
Indeed, the pared-down “continuous surface connection” test applied by the Second Circuit cannot be
reconciled with Sackett—no matter how one reads the
opinion. It is true that the word “indistinguishable”
occurs in a separate sentence from the phrase “continuous surface connection.” See Sackett, 598 U.S. at
21
678. It is also true that Sackett states “[t]hat [indistinguishability] occurs when wetlands have ‘a continuous surface connection to bodies that are “waters of
the United States” in their own right, so that there is
no clear demarcation between “waters” and wetlands.’” Id. (quoting Rapanos, 547 U.S. at 742 (plurality opinion)). This might excuse the omission of the
specific word “indistinguishable” from the Second Circuit’s recitation and application of Sackett’s test. But
it does not justify omission of the requirement that
there be “no clear demarcation” between water and
wetland. And the requirement that there be “no clear
demarcation” between water and wetland is functionally identical to the requirement that the water and
wetland be “indistinguishable.” See Demarcate, Webster’s New World College Dictionary 392 (5th ed.
2014) (“to mark the difference between; distinguish;
separate”); Demarcate, Oxford Dictionary of English
464 (3d ed. 2010) (“separate or distinguish from”).
A “continuous surface connection” test shorn of the
indistinguishability requirement also defies common
sense. It is possible for two features to have a continuous surface connection—which, the government contended below, can include a physical though nonaquatic connection, see United States’ Answering
Brief at 25-27, Second Circuit case no. 24-1479, docket
no. 44 (filed Sep. 24, 2024)—while still being distinguishable. For example, a wetland abutting a road is
clearly distinguishable from the road—even if there is
a continuous physical connection between wetland
and road. Cf. Sackett, 598 U.S. at 662 (“‘[W]etlands’
. . . on the other side of a 30-foot road.”). Likewise,
when placing one’s palm on a table, there is a continuous physical surface connection between palm and
table. Yet nobody would dispute that palm and table
22
are clearly distinguishable. Hence, when Sackett
states that a “wetland [must] ha[ve] a continuous surface connection with that water, making it difficult to
determine where the ‘water’ ends and the ‘wetland’ begins,” id. at 678-79 (quoting Rapanos, 547 U.S. at 742
(plurality opinion)), the Court is specifying a particular type of “continuous surface connection.” That is,
one where it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Id. (emphasis
added). In other words, indistinguishability is not
merely the outcome of a continuous surface connection—it is a central requirement of the test. The Second Circuit thus failed to qualify the “continuous surface connection” concept, as Sackett expressly qualified it.
The Second Circuit’s disregard for the central “indistinguishability” (or, alternatively, “no clear demarcation” or “difficult to determine”) requirement is irreconcilable with Sackett—no matter how one reads
Sackett.
B. The decision below contradicts Sackett’s
requirement that there must be a continuous surface water connection between a
wetland and covered water
1. Regulable wetlands must have a continuous aquatic surface connection to
covered waters—the Second Circuit’s
holding to the contrary conflicts with
Sackett
In determining that there is a “continuous surface
connection” between the alleged wetlands on the farm
and the unnamed tributary, the Second Circuit held
that “the CWA does not require surface water but only
23
soil that is regularly ‘saturated by surface or ground
water.’” App. 5a (quoting 33 C.F.R. § 328.3(c)(1)).
This position is contradicted by Sackett, which expressly contemplates that any surface connection between water and wetland must be aquatic. Sackett,
598 U.S. at 678 (contemplating that surface water
must be continuously present, absent “temporary interruptions . . . because of phenomena like low tides or
dry spells”); id. (referencing a wetland that has an
“unimpaired connection with the open sea up to the
head of tidal influence” as an example of a covered
wetland (quoting 33 U.S.C. § 2802(5)).
The Second Circuit’s rejection of an aquatic surface
connection requirement also further demonstrates its
disregard for Sackett’s central indistinguishability requirement. As discussed above, Sackett’s indistinguishability test “requires the party asserting jurisdiction over adjacent wetlands to establish . . . ‘that
the wetland has a continuous surface connection with
that water, making it difficult to determine where the
“water” ends and the “wetland” begins.’” Sackett, 598
U.S. at 678-79 (quoting Rapanos, 547 U.S. at 742 (plurality opinion)). A defining characteristic of a “water”
is the continuous presence of surface water. See id. at
671 (“the CWA’s use of ‘waters’ encompasses ‘only
those relatively permanent, standing or continuously
flowing bodies of water’” (quoting Rapanos, 547 U.S.
at 739 (plurality opinion))). On the other hand, while
some wetlands may contain continuously present surface water, “wetlands” as a class are not defined by the
presence of surface water. See 33 C.F.R. § 328.3(c)(1)
(“Wetlands means those areas that are inundated or
saturated by surface or ground water at a frequency
and duration sufficient to support . . . a prevalence of
vegetation typically adapted for life in saturated soil
24
conditions.”). See also 88 Fed. Reg. 3004, 3051
(Jan. 18, 2023) (“no scientific or regulatory definition
of wetlands demands year-round surface water”).
Thus, in the absence of the continuous presence of surface water, there can be no “difficult[y] . . . determin[ing] where the ‘water’ ends and the ‘wetland’ begins.” Sackett, 598 U.S. at 678-79 (quoting Rapanos,
547 U.S. at 742 (plurality opinion)) (emphasis added).
The Second Circuit’s position is even contradicted
by the separate opinions in Rapanos—which each understood the Rapanos plurality as requiring a water
connection. See Rapanos, 547 U.S. at 776 (Kennedy,
J., concurring in the judgment) (“when a surface-water connection is lacking, the plurality forecloses jurisdiction over wetlands that abut navigable-in-fact waters”). Cf. also id. at 805 (Stevens, J., dissenting)
(“Under this view, wetlands that border traditionally
navigable waters or their tributaries and perform the
essential function of soaking up overflow waters during hurricane season—thus reducing flooding downstream—can be filled in by developers with impunity,
as long as the wetlands lack a surface connection with
the adjacent waterway the rest of the year.” (emphasis
added)).11
The Second Circuit’s rejection of a surface water connection
requirement also conflicts with a recent decision from the Eleventh Circuit. See Glynn Env’t Coal., Inc. v. Sea Island Acquisition, LLC, 146 F.4th 1080, 1089-90 (11th Cir. 2025) (emphasizing
lack of a continuous flow of water through culverts and pipes, or
because of tidal exchange, in concluding that citizen-suit plaintiffs had failed to sufficiently allege that the wetland at issue was
subject to CWA regulation under Sackett’s test).
11
25
2. The Second Circuit’s emphasis on the
regulatory definition of “wetlands”
compounds its conflict with Sackett
In rejecting the argument that surface water must
be continuously present for a wetland to meet Sackett’s test, the Second Circuit relied heavily on EPA and
the Corps’ regulatory definition of “wetlands.” See
App. 5a. According to the Second Circuit, this definition “does not require surface water but only soil that
is regularly ‘saturated by surface or ground water.’”
App. 5a (quoting 33 C.F.R. § 328.3(c)(1)).
The Second Circuit’s reasoning compounds the conflict with Sackett. Whether an area meets the regulatory definition of a wetland is merely a predicate to
Sackett’s test. Sackett did not concern the agencies’
regulatory definition of “wetlands.” Rather, Sackett
was concerned with the test for identifying a smaller
class of wetlands—that is, jurisdictional wetlands.
See Sackett, 598 U.S. at 675 (“[S]ome wetlands must
qualify as ‘waters of the United States.’” (emphasis
added)).
At best, the Second Circuit confused the two discrete inquiries present in any CWA action—whether
the subject area contains “wetlands” as scientifically
defined in the agencies’ regulations versus whether
those wetlands are subject to federal authority. At
worst, the premium placed by the Second Circuit on
the regulatory definition of wetlands implies that the
mere presence of saturated soil—a necessary characteristic for all wetlands, see 33 C.F.R. § 328.3(c)(1)—is
enough to satisfy Sackett. That is not the law. See
Rapanos, 547 U.S. at 745-46 (plurality opinion) (“[A]
Comprehensive National Wetlands Protection Act is
26
not before us . . . [w]hat is clear, however, is that Congress did not enact one when it granted the Corps jurisdiction over only ‘the waters of the United States.’”).
II. The Court should intervene now lest the decision below stand as an endorsement of EPA
and the Corps’ continued refusal to conform
their conduct to the CWA
Now is the right time for the Court to again weigh
in on the scope of the CWA. As noted above, between
1973 and 2023, EPA and the Corps adopted an “essentially boundless view of the scope of [their] power,” Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring), emboldening themselves to exercise authority “that
would befit a local zoning board,” id. at 738 (plurality
opinion). Worse still, the agencies pursued this course
of conduct notwithstanding this Court’s intervening
twice to rein in their claimed authority to regulate.
See Rapanos, 547 U.S. 715; SWANNC, 531 U.S. 159.
The agencies’ failure to heed these prior decisions is
well documented. See Sackett, 598 U.S. at 667 (“In the
decade following Rapanos, the EPA and the Corps issued guidance documents that ‘recognized larger grey
areas and called for more fact-intensive individualized
determinations in those grey areas.’” (quoting Parrillo, supra at 231)); id. at 666 (“Days after our decision, the agencies issued guidance that sought to minimize SWANCC’s impact.”); Rapanos, 547 U.S. at 758
(Roberts, C.J., concurring) (“Rather than refining its
view of its authority in light of our decision in
SWANCC . . . the Corps chose to adhere to its essentially boundless view of the scope of its power.” (citing
SWANCC, 531 U.S. 159)). The outcome of the agencies’ intransigence was that ordinary citizens seeking
to make reasonable use of their property—and faced
27
with potentially “crushing,” Hawkes Co., 578 U.S. at
602 (Kennedy, J., concurring)), consequences—were
left “with little practical alternative but to dance to
the [agencies’] tune,” Sackett v. U.S. Env’t Prot.
Agency, 566 U.S. 120, 132 (2012) (Alito, J., concurring).
In Sackett, this Court intervened again to correct
this untenable situation. See Sackett, 598 U.S. at 657.
Yet within months of Sackett being decided, one court
had already observed the agencies’ familiar pattern of
defiance. See Lewis v. United States, 88 F.4th 1073,
1080 n.7 (5th Cir. 2023) (lamenting the Corps’ “utter
unwillingness to concede its lack of regulatory jurisdiction in this case following Sackett” and “admonish[ing]” the Corps not to pursue further action
against the Lewis family). EPA and the Corps’ continued intransigence then became further evident
through their subsequent litigation conduct. For example, the agencies have vigorously sought to minimize Sackett’s indistinguishability requirement—going so far as to characterize Sackett’s indistinguishability language as “nonessential information.” Response Brief of Federal Appellees at 16-17, White v.
U.S. Env’t Prot. Agency, No. 24-1635 (4th Cir. Dec. 20,
2024), 2024 WL 5210158, at *16-17.12 And just as the
See also Plaintiff’s Opposition to Defendant’s Motion to Dismiss at 11, United States v. Ace Black Ranches, LLP, No. 1:24cv-00113 (D. Idaho Jun. 7, 2024), 2024 WL 4816724 (“The word
‘indistinguishable’ is not a separate element of adjacency, nor is
it alone determinative of whether adjacent wetlands are ‘waters
of the United States[.]’”); Federal Defendants’ Combined Memorandum in Support of Their Motion for Summary Judgment and
Opposition to Plaintiffs’ and Business Intervenors’ Motions for
Summary Judgment at 42, West Virginia v. U.S. Env’t Prot.
Agency, No. 3:23-cv-00032 (D.N.D. Apr. 26, 2024), ECF No. 210
12
28
government did here, the agencies have universally
argued that they may continue to regulate wetlands
lacking even a continuous water connection to a regulable water. See Response Brief of Federal Appellees
at 23, White, No. 24-1635 (“Sackett does not mention,
much less require, a surface ‘water’ connection.”).13
(same); Federal Defendants’ Combined Motion for Summary
Judgment and Opposition to Plaintiffs’ Motions for Summary
Judgment at 44-45, Texas v. U.S. Env’t Prot. Agency, No. 3:23-cv00017 (S.D. Tex. Apr. 2, 2024), 2024 WL 2980869 (same); Plaintiff United States of America’s Opposition to Defendants’ Motion
for Judgment on the Pleadings at 10, United States v. Valentine,
751 F. Supp. 3d 617 (E.D.N.C. 2024) (No. 5:22-cv-00512), 2024
WL 1495519 (Jan. 26, 2024) (“Neither Sackett, the Rapanos plurality opinion, nor any other case has stated that wetlands must
be literally indistinguishable from open water.”); United States’
Opposition to Defendants’ Post-Judgment Motion Regarding
Sackett v. EPA, 598 U.S. 651 (2023) at 11, United States v.
Sweeney, No. 2:17-cv-00112 (E.D. Cal. Jan. 25, 2024), 2024 WL
5471328 (“The thrust of defendants’ motion is their incorrect assertion that ‘after Sackett, only wetlands that are indistinguishable from waters are regulated.’” (cleaned up; citations omitted));
United States’ Reply in Support of United States’ Motion for
Summary Judgment and Opposition to Defendants’ Cross-Motion for Summary Judgment at 30, United States v. Sharfi, No.
2:21-cv-14205 (S.D. Fla. Dec. 22, 2023), ECF No. 158 (“Sackett
does not state that the two must be indistinguishable[.]”).
See also Federal Defendants’ Combined Memorandum in
Support of Their Motion for Summary Judgment and Opposition
to Plaintiffs’ and Business Intervenors’ Motions for Summary
Judgment at 43, West Virginia, No. 3:23-cv-00032 (“Plaintiffs
and Intervenors mistakenly read Sackett to require a continuous
surface water connection between wetlands and covered waters.”); Federal Defendants’ Combined Motion for Summary
Judgment and Opposition to Plaintiffs’ Motions for Summary
Judgment at 45, Texas, No. 3:23-cv-00017 (same); Plaintiff
United States of America’s Opposition to Defendants’ Motion for
Judgment on the Pleadings at 14, Valentine, 751 F. Supp. 3d 617
13
29
The agencies appear to have treated the district
court’s early decision in this case as a windfall—repeatedly citing it to support their position on both of
these points.14
(No. 5:22-cv-00512) (“Sackett does not require the United States
to plead specifically that wetlands are ‘aquatic[.]’”); United
States’ Opposition to Defendants’ Post-Judgment Motion Regarding Sackett v. EPA, 598 U.S. 651 (2023) at 17, Sweeney, No.
2:17-cv-00112 (arguing that “Sackett did not” require “that there
be a ‘continuous surface water connection’”); United States’ Reply
in Support of United States’ Motion for Summary Judgment and
Opposition to Defendants’ Cross-Motion for Summary Judgment
at 29, Sharfi, No. 2:21-cv-14205 (“A continuous surface connection includes where a wetland actually abuts another covered
water[.]”).
See Opposition to Plaintiff’s Motion for Preliminary Injunction at 20-21, White v. U.S. Env’t Prot. Agency, 737 F. Supp. 3d
310 (E.D.N.C. 2024) (No. 2:24-cv-00013), ECF No. 24 (May 7,
2024) (“And lower courts applying the continuous surface-connection requirement agree that proof of physical abutment suffices.” (citing United States v. Andrews, 677 F. Supp. 3d 74, 8788 (D. Conn. 2023))); Federal Defendants’ Combined Memorandum in Support of Their Motion for Summary Judgment and Opposition to Plaintiffs’ and Business Intervenors’ Motions for Summary Judgment at 44-45, West Virginia, No. 3:23-cv-00032
(same); Federal Defendants’ Combined Motion for Summary
Judgment and Opposition to Plaintiffs’ Motions for Summary
Judgment at 47, Texas, No. 3:23-cv-00017 (same); Plaintiff
United States of America’s Opposition to Defendants’ Motion for
Judgment on the Pleadings at 12, Valentine, 751 F. Supp. 3d 617
(No. 5:22-cv-00512) (“[T]he court found no requirement to show
that the wetlands were literally ‘indistinguishable’ from waters
of the United States.” (citing Andrews, 677 F. Supp. 3d at 8788)); United States’ Opposition to Defendants’ Post-Judgment
Motion Regarding Sackett v. EPA, 598 U.S. 651 (2023) at 13,
Sweeney, No. 2:17-cv-00112 (citing Andrews, 677 F. Supp. 3d at
79); United States’ Reply in Support of United States’ Motion for
14
30
EPA and the Corps’ attempts to evade Sackett’s requirements have been met with mixed success. Some
lower courts have rejected the agencies’ post-Sackett
arguments. See United States v. Sharfi, No. 2:21-cv14205, 2024 WL 4483354, at *13 (S.D. Fla. Sep. 21,
2024), report and recommendation adopted, 2024 WL
5244351 (S.D. Fla. Dec. 30, 2024) (“Plaintiff ignores
this indistinguishability requirement, which becomes
meaningless if abutment alone establishes a ‘continuous surface connection.’”); United States v. Ace Black
Ranches, LLP, No. 1:24-cv-00113, 2024 WL 4008545,
at *4 n.2 (D. Idaho Aug. 29, 2024) (“The Government
still needs to connect any wetlands it believes Ace
Black Ranches’ has polluted with the River via a sufficient surface-water connection.”).
While other
courts—following the lead of the lower courts in this
case—have been more receptive. See United States v.
Valentine, 751 F. Supp. 3d 617, 623 (E.D.N.C. 2024)
(citing Andrews, 677 F. Supp. 3d at 88); United States
v. Sweeney, No. 2:17-cv-00112, 2024 WL 4527260, at
*4 (E.D. Cal. Oct. 18, 2024) (same).
The decision below stands as a regrettable endorsement of EPA and the Corps’ renewed effort to expansively define their own authority. This once again
“puts many property owners in a precarious position.”
Sackett, 598 U.S. at 669. EPA and the Corps’ intransigence should not be rewarded. This Court should
intervene now to again rein in the claimed authority
of two agencies “whose disregard for the statutory language has been so long manifested.” Rapanos, 547
U.S. at 756 n.15 (plurality opinion).
Summary Judgment and Opposition to Defendants’ Cross-Motion for Summary Judgment at 29, Sharfi, No. 2:21-cv-14205 (citing Andrews, 677 F. Supp. 3d at 87-88).
31
III. Mr. Andrews’ petition provides an excellent
vehicle for this Court to correct EPA and the
Corps’ continued refusal to conform their
conduct to the CWA
This Court can readily put a stop to EPA and the
Corps’ renewed intransigence. This case provides the
Court with the right vehicle for making that happen.
This is because the record is clear that the alleged wetlands on Mr. Andrews farm are not subject to federal
authority under Sackett’s test, properly construed.
The government did not argue below that the alleged wetlands on the farm are visually indistinguishable from the unnamed tributary. Instead, the government took the position that mere “physical abutment” between the wetlands and unnamed tributary—even in the absence of a continuous surface water connection—was sufficient. See United States’ Answering Brief at 25-27, Second Circuit case no. 241479, docket no. 44 (filed Sep. 24, 2024); Memorandum in Support of Plaintiffs’ Motion for Summary
Judgment on Liability at 34-35, U.S. District Court
District of Connecticut case no. 3:20-cv-01300, docket
no. 224-1 (filed Oct. 21, 2022). Indeed, according to
the government’s experts, the unnamed tributary to
which the alleged wetlands abut has a clearly discernable bank with an ordinary high-water mark. Putnam
Decl. at 12 ¶ 39, U.S. District Court District of Connecticut case no. 3:20-cv-01300, docket no. 8-5 (filed
Sep. 3, 2020) (observing “the presence of a well-formed
stream bank with an ordinary high-water mark”). It
is therefore doubtful that any reasonable person
would have “difficult[y] . . . determin[ing],” Sackett
598 U.S. at 678-79 (quoting Rapanos, 547 U.S. at 742
(plurality opinion)), where the unnamed tributary
32
ends and the alleged wetlands begin. The alleged wetlands are not “as a practical matter indistinguishable,” id. at 678 (quoting Rapanos, 547 U.S. at 755 (plurality opinion)), from the unnamed tributary.
Similarly, the undisputed facts in the record show
that there is no continuous surface water connection
between the alleged wetlands and the unnamed tributary. Instead, and as discussed above, other than
during rainfall-runoff events, any hydrologic connection between the alleged wetlands and the unnamed
tributary is limited to a subsurface connection. See
Earles Report at 13-15, U.S. District Court District of
Connecticut case no. 3:20-cv-01300, docket no. 224-6
(filed Oct. 21, 2022).15
IV.
The Court may wish to consider summary
disposition to correct the Second Circuit’s
grievous misapprehension of Sackett
In light of the Second Circuit’s plain failure to follow this Court’s controlling decision in Sackett, the
Court may wish to consider summary disposition.
Summary disposition is appropriate here because the
decision below rests on a clear legal error of great
magnitude. See Pakdel v. City & Cnty. of San Fran-
Given that proper application of Sackett’s test yields a different conclusion, it is also fundamentally unjust that Mr. Andrews should be forced to live with the Second Circuit’s error.
Mr. Andrews is currently subject to a mandatory injunction to
restore the alleged wetlands. See App. 40a-45a. And after that
restoration process is complete, he could face as much as $2 million in civil penalties. See Ruling and Order on Remedy (Doc. No.
250) and Motion to Dismiss (Doc. No. 253) at 37, U.S. District
Court District of Connecticut case no. 3:20-cv-01300, docket no.
256 (filed Mar. 27, 2024).
15
33
cisco, 594 U.S. 474, 479 (2021) (vacating and remanding where Ninth Circuit took an approach “contrary”
to the holding and reasoning of a recent Supreme
Court decision); CNH Indus. N.V. v. Reese, 583 U.S.
133, 134 (2018) (reversing and remanding because the
lower court’s decision “cannot be squared” with controlling Supreme Court precedent); Marmet Health
Care Ctr., Inc. v. Brown, 565 U.S. 530, 532 (2012) (vacating and remanding where the lower court’s “interpretation” of a federal statute “was both incorrect and
inconsistent with clear instruction in the precedents
of this Court”).
As discussed, the decision below cannot be squared
with Sackett, for two reasons. First, it ignored Sackett’s central indistinguishability requirement. See supra Part I.A. Second, it concluded that regulable wetlands need not have a continuous surface water connection to covered waters. See supra Part I.B.
Further counseling in favor of summary disposition
is that the undisputed facts show that the alleged wetlands on Mr. Andrews’ farm are distinguishable from,
and contain no continuous surface water connection
to, any possibly covered waters. See supra Part III.
The Second Circuit’s errors thus warrant reversal.
The consequences of the Second Circuit’s errors
also extend well beyond this case. In Sackett, this
Court intervened—for the third time in twenty-five
years—to correct the agencies’ aggrandized view of
their own power. See Sackett, 598 U.S. at 666-68. Yet
within months of Sackett being decided—in Mr. Andrews’ case and others—EPA and the Corps were already seeking to evade Sackett’s clear requirements.
See supra notes 12-14. In so doing, the agencies re-
34
peated a pattern of defiance characteristic of their response to each of this Court’s prior decisions reining
in their CWA authority. See supra Part II. The decision below stands as a regrettable endorsement of the
agencies’ post-Sackett conduct. Summary disposition
is thus appropriate to dissuade the agencies from continuing to pursue other property owners with unlawfully expansive claims of CWA authority.
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,
PAIGE E. G ILLIARD
FRANK D. G ARRISON
S EAN R ADOMSKI
Pacific Legal Foundation
3100 Clarendon Blvd.,
Suite 1000
Arlington, VA 22201
(202) 888-6881
CHARLES T. Y ATES
Counsel of Record
D AMIEN M. S CHIFF
Pacific Legal Foundation
555 Capitol Mall,
Suite 1290
Sacramento, CA 95814
(916) 419-7111
cyates@pacificlegal.org
Counsel for Petitioner
N OVEMBER 2025
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.