Amicus Curiae Brief — Jeffrey Andrews, Petitioner v. United States

No. 25-668

In the Supreme Court of the United States

JEFFREY ANDREWS,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE STATES OF

WEST VIRGINIA, NEBRASKA, AND 21 OTHER

STATES IN SUPPORT OF PETITIONER

MICHAEL T. HILGERS

Attorney General

CODY S. BARNETT

Solicitor General

NEBRASKA DEPARTMENT

OF JUSTICE

1445 K. Street, Room 2115

Lincoln, Nebraska 68509

cody.barnett@nebraska.gov

(402) 471-2683

JOHN B. MCCUSKEY

Attorney General

CALEB B. DAVID

Deputy Solicitor General

Counsel of Record

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25306

cdavid@wvago.gov

(304) 558-2021

Counsel for Amici Curiae

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 2

Reasons for Granting the Petition...................................... 3

I. States are—and always have been—the primary

water regulators. ..................................................... 3

II. The decision below exemplifies how lower courts

still misapply the jurisdictional test. ................... 10

III. “Watering down” Sackett tramples state

authority and imposes unnecessary costs. ......... 16

Conclusion ........................................................................... 23

II

TABLE OF AUTHORITIES

Page(s)

Cases

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ....................................................... 1, 7

California v. United States,

438 U.S. 645 (1978) ......................................................... 5

Citizens Bank v. Alafabco, Inc.,

539 U.S. 52 (2003) ........................................................... 6

Conservation L. Found., Inc. v. Town of

Barnstable,

No. 24-cv-11886-ADB, 2025 WL

1596278 (D. Mass. June 5, 2025) ................................. 15

Cooley v. Bd. of Wardens of Port of Phila.,

53 U.S. (12 How.) 299 (1851) .......................................... 5

D'Arcy v. Ketchum,

52 U.S. 165 (1850) ........................................................... 4

Escanaba & Lake Mich. Transp. Co. v.

City of Chicago,

107 U.S. 678 (1883) ......................................................... 4

Gibbons v. Ogden,

22 U.S. 1 (1824) ........................................................... 4, 6

Gilman v. City of Philadelphia,

70 U.S. (3 Wall.) 713 (1865) ............................................ 5

III

Glynn Env’t Coal., Inc. v. Sea Island

Acquisition, LLC,

146 F.4th 1080 (11th Cir. 2025) ................................... 13

Glynn Environmental Coalition, Inc. v.

Sea Island Acquisition, LLC,

No. CV 219-050, 2024 WL 1088585 (S.D.

Ga. Mar. 1, 2024) ........................................................... 13

Gregory v. Ashcroft,

501 U.S. 452 (1991) ....................................................... 10

Kansas v. Colorado,

No. 105, 1994 WL 16189353 (U.S. Oct. 3,

1994) ................................................................................. 5

Lewis v. United States,

88 F.4th 1073 (5th Cir. 2023) ................................. 12, 13

Martin v. Waddell’s Lessee,

41 U.S. 367 (1842) ........................................................... 4

McCready v. Virginia,

94 U.S. 391 (1876) ........................................................... 5

McCulloch v. Maryland,

17 U.S. 316 (1819) ........................................................... 6

N.J. Dep’t of Env’t Prot. v. Hexcel Corp.,

No. A-1889-22, 2024 WL 1693714 (N.J.

Super. Ct. App. Div. Apr. 19, 2024) ............................ 16

Pollard v. Hagan,

44 U.S. (3 How.) 212 (1845) ............................................ 5

IV

Precon Dev. Corp. v. U.S. Army Corps of

Eng’rs,

No. 2:24-cv-337, 2025 WL 510234 (E.D.

Va. Feb. 14, 2025) ......................................................... 15

Rapanos v. United States,

547 U.S. 715 (2006) ...............................................passim

Sackett v. EPA,

598 U.S. 651 (2023) ...............................................passim

Sibson v. State,

336 A.2d 239 (N.H. 1975) ............................................... 5

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ......................................................... 1

Spears v. Berle,

397 N.E.2d 1304 (N.Y. 1979) ......................................... 5

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) ....................................................... 11

United States v. Bobby Wolford Trucking

& Salvage, Inc.,

No. C18-0747 TSZ, 2023 WL 8528643

(W.D. Wash. Dec. 8, 2023) ........................................... 15

United States v. Lopez,

514 U.S. 549 (1995) ......................................................... 8

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985) ......................................... 6, 8, 11, 12

V

United States v. Sharfi,

No. 21-CV-14205, 2024 WL 4483354

(S.D. Fla. Sept. 21, 2024) ............................................. 12

United States v. Wise,

370 U.S. 405 (1962) ......................................................... 4

Vill. of Oconomowoc Lake v. Dayton

Hudson Corp.,

24 F.3d 962 (7th Cir. 1994) ........................................... 15

Waste Action Project v. Girard Res. &

Recycling LLC,

No. 2:21-cv-00443-RAJ-GJL, 2024 WL

4366978 (W.D. Wash. Sept. 4, 2024) ........................... 15

West Virginia v. EPA,

669 F. Supp. 3d 781 (D.N.D. 2023) ................................ 9

White v. EPA,

737 F. Supp. 3d 310 (E.D.N.C. 2024) .......................... 16

Constitutional Provisions

ALA. CONST. art I, § 24......................................................... 4

ALASKA CONST. art. VIII, § 14 ............................................ 4

COLO. CONST. of 1876, art. XVI, § 6.................................... 4

FLA. CONST. art. X, § 11....................................................... 4

MASS. CONST. art. XCVII .................................................... 4

MONT. CONST. art. IX, § 3 ................................................... 5

VI

N.M. CONST. of 1912, art. XVI ............................................ 4

U.S. CONST. art. I, § 8 .......................................................... 6

UTAH CONST. art. XIII, § 3 ................................................. 5

Statutes

2 R.I. GEN. LAWS ANN. § 2-1-18 .......................................... 6

32 PA. STAT. § 693.1 .............................................................. 6

33 U.S.C. § 1251 .................................................................... 7

33 U.S.C. § 1252 .................................................................... 7

33 U.S.C. § 1313 .................................................................... 7

33 U.S.C. § 1319 .................................................................... 7

33 U.S.C. § 1342 .................................................................... 8

33 U.S.C. § 1344 .............................................................. 8, 10

33 U.S.C. § 1362 .................................................................... 8

ALA. CODE § 9-7-10............................................................... 5

CAL. PUB. RES. CODE § 6303 ............................................... 5

CONN. GEN. STAT. § 22a-28.................................................. 5

DEL. C. tit. 7, § 6604 ............................................................. 5

FLA. STAT. § 373.016 ............................................................ 5

VII

GA. CODE § 12-5-280 ............................................................. 5

ILL. COMP. STAT. 830/1-1 ..................................................... 5

IND. CODE § 13-18-22-1 ........................................................ 5

IND. CODE § 13-30-10-6 ........................................................ 5

IOWA CODE § 456B.13 .......................................................... 5

LA. STAT. ANN. § 49:214.1 .................................................... 5

MASS. GEN. LAWS ch. 130, § 105 ......................................... 5

MD. CODE, ENV'T § 16-102 ................................................... 5

ME. REV. STAT. tit. 38, § 480-A ........................................... 5

MICH. COMP. LAWS § 324.30301 .......................................... 5

MINN. STAT. § 103G.221 ....................................................... 5

MINN. STAT. § 103G.245 ....................................................... 5

MISS. CODE § 49-27-9 ........................................................... 5

N.C. GEN. STAT. § 113A-113 ................................................ 6

N.D. CENT. CODE § 61-32-03 ............................................... 6

N.H. REV. STAT. § 482-A:1................................................... 5

N.J. STAT. § 13:9B-1 ............................................................. 5

N.Y. ENV’T CONSERV. LAW § 24-0103 ................................ 6

NEB. REV. STAT. § 81-1502 .................................................. 5

VIII

NEB. REV. STAT. § 81-1506 .................................................. 5

OHIO REV. CODE § 6111.021 ................................................ 6

OR. REV. STAT. § 196.800 ..................................................... 6

OR. REV. STAT. § 196.805 ..................................................... 6

S.C. CODE § 48-39-10 ............................................................ 6

S.C. CODE § 48-39-30 ............................................................ 6

VA. CODE § 62.1-44.5 ............................................................ 6

VT. STAT. tit. 10, § 905b ........................................................ 6

WASH. REV. CODE § 90.48.020 ............................................. 6

WASH. REV. CODE § 90.48.080 ............................................. 6

WIS. STAT. § 23.32................................................................. 6

WIS. STAT. § 61.351 ............................................................... 6

WIS. STAT. § 281.31 ............................................................... 6

WYO. STAT. § 35-11-308 ........................................................ 6

Regulations

33 C.F.R. § 328 ................................................................ 9, 14

58 Fed. Reg. 45036 (Aug. 25, 1993) ..................................... 8

80 Fed. Reg. 37054 (June 29, 2015) .................................. 11

IX

80 Fed. Reg. 37104 (June 29, 2015) .................................... 8

83 Fed. Reg. 5208 (Feb. 6, 2018) ......................................... 9

84 Fed. Reg. 56667 (Oct. 22, 2019) ...................................... 9

85 Fed. Reg. 22338 (Apr. 21, 2020) ..................................... 9

88 Fed. Reg. 3004 (Jan. 18, 2023) ........................................ 9

88 Fed. Reg. 3142 (Jan. 18, 2023) ........................................ 9

88 Fed. Reg. 61968 (Sept. 8, 2023) ...................................... 9

Other Authorities

EPA, CLEAN WATER ACT JURISDICTION

FOLLOWING THE U.S. SUPREME

COURT’S DECISION IN RAPANOS V.

UNITED STATES & CARABELL V.

UNITED STATES 1 (2008),

https://bit.ly/4jmyuds. .................................................... 9

Robert W. Adler, The Ancient Mariner of

Constitutional Law: The Historical,

Yet Declining Role of Navigability, 90

WASH. U. L. REV. 1642 (2013) ....................................... 6

Robin Kundis Craig, Beyond SWANCC:

The New Federalism and Clean Water

Act Jurisdiction, 33 ENVTL L. 113

(2003) ................................................................................ 7

INTRODUCTION AND INTERESTS

OF AMICI CURIAE1

Congress preserved State water regulatory authority

when it passed the Clean Water Act. And it limited federal

oversight to navigable waters. In this way, “[t]he Clean

Water Act anticipates a partnership between the States

and the Federal Government.” Arkansas v. Oklahoma,

503 U.S. 91, 101 (1992). Amici States have a substantial

interest in preserving this important partnership.

But for decades, federal officials have ignored

statutory text, constitutional order, and Congress’s intent

by assuming more power for themselves. And the

partnership weakened as federal power came to the fore.

The result? Federal agencies asserted the same authority

over the Mississippi River, “an abandoned sand and gravel

pit in northern Illinois,” and about everywhere in between.

Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps

of Eng’rs (SWANCC), 531 U.S. 159, 162 (2001).

It’s taken this Court several tries to keep the agencies

in-bounds. Repeatedly, it has reminded agencies—and

lower courts—that the “waters of the United States”

addressed by the Clean Water Act are not all waters in

the United States. Federal agencies were reminded that

States continue to hold “traditional and primary power

over land and water use” within their jurisdictions.

SWANCC, 531 U.S. at 174. Yet when federal agencies

ignored that message a second time, the Court pushed

back again. Rapanos v. United States, 547 U.S. 715 (2006)

(plurality op.). And when two more decades of fighting

and confusion continued anyway, the Court spoke up a

Under Supreme Court Rule 37.2(a), amici timely notified counsel

of record of their intent to file this brief.

1

2

third time to settle the debate on the Clean Water Act’s

narrow reach once and for all. Sackett v. EPA, 598 U.S.

651 (2023).

So now we have an answer. Sackett tells us that federal

authority extends only to wetlands that are “as a practical

matter indistinguishable” from covered waters. Id. at 678

(cleaned up). In other words, a wetland must have a

“continuous surface connection” with an adjacent covered

body of water. Id. (cleaned up). The test, then, is

straightforward: federally regulated waters must be

traditional navigable waters or so functionally inseparable

from those waters that it’s necessary to regulate them.

Still, judging from the decision below, lower courts are

still reluctant to embrace Sackett’s plain rule. Here, the

Second Circuit expanded the Clean Water Act’s scope to

pull in a Connecticut farmer’s land that has no continuous

surface connection to traditional navigable waters outside

“rainfall-runoff events.” Pet.6. That farmer may now be

liable for up to $2 million in civil penalties. Id. at 32 n.15.

The decision below does not respect Sackett. So this

Court should remind lower courts—again—that the Act

does not extend to everywhere water might be. The Court

should grant the petition and summarily reverse—and

reinstate the Clean Water Act’s state-federal relationship

once more.

SUMMARY OF ARGUMENT

Sackett resolved a decades-long argument. Yet lower

courts still stretch the Clean Water Act’s scope. The

Court should grant the petition to vindicate States’ rights,

remind lower courts how to apply Sackett, and correct a

clear error.

3

I. States have plenary authority to regulate waters

within their borders. The federal government has power

over water, too, but it’s not absolute.

Both the

Constitution’s structure and Congress’s authorization in

the CWA place real constraints on federal power. But

courts and agencies have often forgotten these first

principles. And this regulatory overreach upsets the

balance Congress struck.

II. Sackett restored order. The decision confirmed

what this Court already explained: The “waters of the

United States” encompasses only wetlands that are as a

“practical matter indistinguishable” from navigable

waters.

Unfortunately, though, some lower courts

continue to misapply Sackett—with the Second Circuit’s

decision here being a prime example. The court applied a

definition of “waters of the United States” that soaks up

virtually all wetlands in the country.

III. When lower courts “water down” Sackett, real

harms result. Regulated parties are forced to expend

substantial time and money. States, too, are compelled to

spend enormous sums. And for what? States have already

shown an appetite and ability to regulate waters within

their borders effectively.

The Court should grant the petition and summarily

reverse lest lower courts tread indefinitely on States’

water rights and this Court’s precedents.

REASONS FOR GRANTING THE PETITION

I.

States are—and always have been—the primary

water regulators.

Understanding the Clean Water Act starts with

understanding how water regulation has traditionally

functioned. After all, “statutes are construed by courts

4

with reference to the circumstances existing at the time of

the[ir] passage.” United States v. Wise, 370 U.S. 405, 411

(1962). In other words, “the law as it stood when the act

was passed must enter into [its] construction.” D'Arcy v.

Ketchum, 52 U.S. 165, 175 (1850). And here, that

background confirms that water regulation is not a topdown, federally controlled enterprise. Quite the opposite.

A. Since the Founding, States have had the power to

regulate waters within their borders. Gibbons v. Ogden,

22 U.S. 1, 70-75 (1824). As sovereigns, States hold the

“absolute right” to their “waters[] and the soil under

them.” See, e.g., Martin v. Waddell’s Lessee, 41 U.S. 367,

367 (1842). This plenary responsibility encompasses the

“full power to regulate” waters to “promote the peace,

comfort, convenience, and prosperity of [the States’]

people.” Escanaba & Lake Mich. Transp. Co. v. City of

Chicago, 107 U.S. 678, 683 (1883).

States take this responsibility seriously. Many have

enshrined this power in their constitutions. See, e.g., FLA.

CONST. art. X, § 11 (laying claim to “navigable waters

within the boundaries of the state” (cleaned up)); N.M.

CONST. of 1912, art. XVI (same). Others have granted

their citizens state water rights. See, e.g., CAL. CIV. CODE

of 1872 §§ 1410-1422 (water rights acquired by

appropriation); COLO. CONST. of 1876, art. XVI, § 6

(preserving the right to divert water). Still others have

even given their citizens specific guarantees. For

example, Alaska allows “[f]ree access to the navigable or

public waters of the State.” ALASKA CONST. art. VIII,

§ 14. Massachusetts assures a “right to clean … water.”

MASS. CONST. art. XCVII. And Alabama’s constitution

provides “[t]hat all navigable waters shall remain forever

public highways, free to the citizens of the state … without

tax, impost, or toll.” ALA. CONST. art I, § 24.

5

States have used their water rights to regulate

virtually every aspect of their water. They’ve regulated

tide-water beds, Pollard v. Hagan, 44 U.S. (3 How.) 212

(1845), harbor pilots, Cooley v. Bd. of Wardens of Port of

Phila., 53 U.S. (12 How.) 299 (1851), bridges, Gilman v.

City of Philadelphia, 70 U.S. (3 Wall.) 713, 729 (1865),

fisheries, McCready v. Virginia, 94 U.S. 391 (1876), and

canals, Kansas v. Colorado, No. 105, 1994 WL 16189353,

at *18 (U.S. Oct. 3, 1994). States have recognized rights

over “ditches, drains, flumes, … and aqueducts,” MONT.

CONST. art. IX, § 3, and exempted those areas from

property tax, UTAH CONST. art. XIII, § 3. They’ve even

managed water coming from federal reservoirs within

their jurisdictions. California v. United States, 438 U.S.

645 (1978). Thus, States have “always exercised” their

water regulation “power.” Gilman, 70 U.S. at 729.

Wetlands are no exception. Regulating “wetlands is

clearly within the scope of the police power of [a] State.”

Sibson v. State, 336 A.2d 239, 240 (N.H. 1975). It is

unsurprising, then, that many States have chosen to

exercise control over these valuable water resources for a

variety of welfare-promoting reasons like “flood,”

“storm,” “erosion,” pollution, and recreational control.

E.g., Spears v. Berle, 397 N.E.2d 1304, 1306 n.2 (N.Y.

1979). Indeed, at least 30 States directly regulate

wetlands in some form or fashion.2

See ALA. CODE § 9-7-10 et seq.; CAL. PUB. RES. CODE § 6303 et seq.;

CONN. GEN. STAT. § 22a-28 et seq.; DEL. C. tit. 7, § 6604; FLA. STAT. §

373.016 et seq.; GA. CODE § 12-5-280 et seq.; IND. CODE §§ 13-18-22-1,

13-30-10-6; IOWA CODE § 456B.13; 20 ILL. COMP. STAT. 830/1-1 et seq.;

LA. STAT. ANN. § 49:214.1 et seq.; ME. REV. STAT. tit. 38, § 480-A et

seq.; MD. CODE, ENV’T § 16-102 et seq.; MASS. GEN. LAWS ch. 130, §

105; MICH. COMP. LAWS § 324.30301 et seq.; MINN. STAT. §§ 103G.221,

103G.245; MISS. CODE § 49-27-9; NEB. REV. STAT. §§ 81-1502, 811506; N.H. REV. STAT. § 482-A:1 et seq.; N.J. STAT. § 13:9B-1 et seq.;

2

6

On the other hand, federal water regulation doesn’t

enjoy the rich plenary intrastate water history of its State

counterparts. To be sure, the Commerce Clause allows

Congress “[t]o regulate Commerce with foreign Nations,

and among the several States, and with the Indian

Tribes.” U.S. CONST. art. I § 8, cl. 3. Applying that power,

the Court has recognized that the federal government

holds a meaningful role in regulating “navigable waters.”

See Gibbons, 22 U.S. at 70-75; Robert W. Adler, The

Ancient Mariner of Constitutional Law: The Historical,

Yet Declining Role of Navigability, 90 WASH. U. L. REV.

1642, 1670-71 (2013). But many wetlands are not

“navigable in fact.” See, e.g., United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 129-30 (1985). That

does not mean all wetlands fall outside the ambit of the

Clean Water Act; as discussed below, traditional

navigability is not the sole metric used to properly cabin

the Act’s scope. But all exercises of federal regulatory

power must lie “within the scope of the [C]onstitution.”

McCulloch v. Maryland, 17 U.S. 316, 421 (1819). And “the

power to regulate commerce, though broad indeed, has

limits.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58

(2003) (cleaned up). Some wetlands lie beyond those limits

and outside the federal government’s regulatory reach.

B. The Clean Water Act didn’t try to upset the

historical balance between state and federal authority

over water. On the contrary, it expressly preserved State

sovereignty. Congress passed the CWA “to restore and

N.Y. ENV’T CONSERV. LAW § 24-0103 et seq.; N.C. GEN. STAT. § 113A113 et seq.; N.D. CENT. CODE § 61-32-03; OHIO REV. CODE § 6111.021;

OR. REV. STAT. §§ 196.800, 196.805; 32 PA. STAT. § 693.1 et seq.; 2 R.I.

GEN. LAWS ANN. § 2-1-18 et seq.; S.C. CODE §§ 48-39-10, 48-39-30 et.

seq.; VT. STAT. tit. 10, § 905b; VA. CODE § 62.1-44.5; WASH. REV. CODE

§§ 90.48.020, 90.48.080; WIS. STAT. §§ 23.32, 61.351, 281.31; WYO.

STAT. § 35-11-308 et seq.

7

maintain the chemical, physical, and biological integrity of

the Nation’s waters.” 33 U.S.C. § 1251(a). But Congress

also intended “to recognize, preserve, and protect the

primary responsibilities and rights of the States to

prevent, reduce and eliminate pollution, [and] to plan the

development and use … of land and water resources.” Id.

§ 1251(b). So Congress struck a balance. It commanded

the federal government to “co-operate” with States and

local agencies. Id. § 1251(g). The Act thus formed a

“partnership” among States and the federal government,

Arkansas, 503 U.S. at 101, one “grounded in the basic

constitutional requirements of federalism” and “a

complex statutory blend of state and federal power,”

Robin Kundis Craig, Beyond SWANCC: The New

Federalism and Clean Water Act Jurisdiction, 33 ENVTL

L. 113, 123 (2003).

In the CWA, Congress split up the relevant roles that

States and the federal government play to address water

pollution. Among other things, States “manage the

construction grant program” “and implement the permit

programs.” 33 U.S.C. §§ 1251(b), 1342, 1381-1388. They

set and revise their own water quality standards, see id.

§ 1313(b)-(c), identify waters for regulation, see id.

§ 1313(d), and maintain a regulatory plan, see id.

§§ 1313(e), 1329. By contrast, EPA “administer[s]” the

CWA in “consult[ation]” and “cooperation with the

States.” See id. § 1251(b), (d)-(e). It makes grants to

State and local agencies, id. §§ 1251(b), 1252(c), 12811302f, 1381-1389, develops programs, id. § 1252(a), and

sets permit standards, id. §§ 1341-1346, 1361-1377a. EPA

and the Army Corps of Engineers may also enforce some

of the provisions of the Act—at times in conjunction with

the States. Id. § 1319(a)(1).

8

Congress respected its constitutional limitations. It

anchored the federal government’s role to a jurisdictional

phrase: “navigable waters.”

See, e.g., 33 U.S.C.

§ 1342(a)(4). And it defined “navigable waters” as “the

waters of the United States, including the territorial

seas.” 33 U.S.C. § 1362(7). “[S]treams, oceans, rivers, and

lakes” are generally considered “waters” that might then

fall within the statute’s jurisdictional ambit. Sackett, 598

U.S. at 671 (cleaned up). That classification makes sense.

These geographic features are “traditional[ly] navigable.”

Id. at 672. So as “channels of interstate commerce,”

United States v. Lopez, 514 U.S. 549, 558-559, (1995), they

fit neatly into Congress’s commerce power.

C. A few years later, however, Congress amended the

CWA. The amendment allowed States to administer

discharge permit programs. 33 U.S.C. § 1344(g). But

Congress confined the States’ programs to “(1) any waters

of the United States, (2) except for traditional navigable

waters, (3) ‘including wetlands adjacent thereto.’”

Sackett, 598 U.S. at 675 (citing 33 U.S.C. § 1344(g)(1)).

The term “adjacent” wetlands sowed confusion—and

opportunism.

Courts agreed the term brought “something more than

traditional navigable waters” within the CWA’s

jurisdictional sweep. Rapanos, 547 U.S. at 731 (plurality

op.); see also Riverside Bayview, 474 U.S. at 133

(concluding that Congress intended to regulate “at least

some waters that would not be deemed ‘navigable’ under

the classical understanding of that term”). The tricky

question was where and how to draw the line.

EPA and the Corps tried their hand at it several times.

They have revised their definition of “waters of the United

States” more than seven times in the past 30 years. See,

e.g., 58 Fed. Reg. 45036 (Aug. 25, 1993); 80 Fed. Reg. 37104

9

(June 29, 2015); 83 Fed. Reg. 5208 (Feb. 6, 2018); 84 Fed.

Reg. 56667 (Oct. 22, 2019); 85 Fed. Reg. 22338 (Apr. 21,

2020); 88 Fed. Reg. 3142 (Jan. 18, 2023); 88 Fed. Reg.

61968 (Sept. 8, 2023). But they brushed aside States’

powers in the process. They effectively stretched “waters

of the United States” to encompass “virtually any land

feature over which rainwater or drainage passes and

leaves a visible mark.” Rapanos, 547 U.S. at 724-25 (citing

33 C.F.R. § 328.3(a) (2004)).

The path forward remained unclear after a fractured

opinion in Rapanos. A plurality of the Court rejected the

increasingly broad interpretation. Rapanos, 547 U.S. at

742. It recognized that such an overextension would

“impinge[]” state water regulatory rights. Id. at 738

(cleaned up). It maintained that those rights are a part of

“quintessential state and local power.” Id. But in a

concurring opinion, Justice Kennedy alone adopted a

“significant nexus” standard, which did “not align

perfectly with the traditional extent of federal authority.”

Id. at 782. Under his “significant nexus” test, wetlands

would be evaluated on a “case-by-case basis.” Id.

Decades of mass confusion ensued. Lower courts

struggled to apply a standard “plagued with uncertainty.”

West Virginia v. EPA, 669 F. Supp. 3d 781, 792-94, 801-04

(D.N.D. 2023). And EPA revised its regulations to include

the problematic “significant nexus standard,” which

encompassed “waters that, either alone or in combination

with similarly situated waters in the region, significantly

affect the chemical, physical, or biological integrity of

traditional navigable waters, the territorial seas, or

interstate waters.” Revised Definition of “Waters of the

United States,” 88 Fed. Reg. 3004, 3006 (Jan. 18, 2023);

see also EPA, CLEAN WATER ACT JURISDICTION

FOLLOWING THE U.S. SUPREME COURT’S DECISION IN

10

RAPANOS V. UNITED STATES & CARABELL V. UNITED

STATES 1 (2008), https://bit.ly/4jmyuds (adopting a factspecific analysis). This definition pushed federal authority

to a climax. Statutory jurisdiction was determined on a

“fact-specific” analysis, considering things like the “flow

characteristics and functions of the tributary” and

“hydrologic and ecological factors.” Id.

This

decades-long

evolution

disrupted

the

“constitutionally mandated balance of power between the

States and the Federal Government.”

Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991) (cleaned up). And it

contradicted the CWA’s stated intent to preserve State

regulatory authority, thereby displacing state regulators

despite their proven effectiveness.

II.

The decision below exemplifies how lower

courts still misapply the jurisdictional test.

A. Sackett should have restored constitutional order

and congressional restraints.

The Court drew a

definitive line—reaffirming that the term “navigable”

limits the federal government’s regulatory reach. See

Sackett, 598 U.S. at 671 (noting that the Court has

“refused to read ‘navigable’ out of the statute”).

Emphasizing the CWA’s “deliberate use of the plural

term ‘waters,’” this Court explained that the CWA was

primarily intended to encompass “those relatively

permanent, standing or continuously flowing bodies of

water forming geographical features that are described

in ordinary parlance as streams, oceans, rivers, and

lakes.” Id. (cleaned up). But, recognizing Congress’s

reference to “wetlands adjacent []to” navigable waters,

33 U.S.C. § 1344(g)(1), the Court concluded that

“statutory context shows that some wetlands qualify as

11

‘waters of the United States,’” Sackett, 598 U.S. at 675

(emphasis added).

Sackett squared this circle by holding that the CWA

applies to wetlands that “qualify as ‘waters of the United

States’ in their own right.” Id. at 676. In short, the CWA

encompasses wetlands that are “as a practical matter

indistinguishable from waters of the United States.” Id.

at 678 (quoting Rapanos, 547 U.S. at 742). Wetlands fall

into this category when they have a “continuous surface

connection” to a jurisdictional stream, lake, river, or

ocean such that it is “difficult to determine where the

‘water’ ends and the ‘wetland’ begins.” Id. (cleaned up).

In the absence of a “clear demarcation” between two

geographic water features, one of which is

unquestionably part of the “waters of the United States,”

the CWA applies.

Sackett’s “indistinguishable” test materially altered

the universe of CWA jurisdictional waters. Under the

previously prevailing “significant nexus” test, “almost all

… wetlands across the country” were theoretically

subject to CWA jurisdiction. Sackett, 598 U.S. at 667

(citing, inter alia, Clean Water Rule: Definition of

“Waters of the United States,” 80 Fed. Reg. 37054, 37056

(June 29, 2015)). It was not unheard of for federal

regulators to find a significant nexus between wetlands

and traditionally navigable waters hundreds of miles

away. E.g., U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590, 596 (2016). After Sackett, covered waters

bear a closer connection to traditional waters that

Congress first had in mind in 1972.

To be sure, determining where “water ends and land

begins” is still “often no easy task.” Riverside Bayview,

474 U.S. at 132. Indeed, it is because the transition from

“water to solid ground is not necessarily or even typically

12

an abrupt one,” id., that many wetlands—those that are

indistinguishable from a nearby covered river, stream,

lake, or ocean—will fall within the CWA’s jurisdictional

sweep. But many others will not. Some are quite

distinguishable.

B. After Sackett, some courts have now gotten the

message. In United States v. Sharfi, for example, the

approximately 4.5-mile gap between a “tidallyinfluenced” creek and wetlands on the defendant’s

property was enough to preclude CWA jurisdiction. No.

21-CV-14205, 2024 WL 4483354, at *11 (S.D. Fla. Sept.

21, 2024), report and recommendation adopted, 2024 WL

5244351 (S.D. Fla. Dec. 30, 2024). The record in Sharfi

included aerial video that showed “obviously dry

conditions” predominating between the site of the

wetlands and the jurisdictional creek miles away. Id. at

*3. This separation from traditional waters precipitated

the court’s conclusion that the “wetlands on [the]

Defendants’ property [were] distinguishable from any

possibly covered waters.” Id. at *14.

The Fifth Circuit reached a similar conclusion in

Lewis v. United States, 88 F.4th 1073 (5th Cir. 2023).

There, the court found no CWA jurisdiction over land

primarily used as a timber plantation despite the

presence of wetlands on portions of the property. Id. at

1076, 1078. The Army Corps of Engineers had found

jurisdiction by tracing a series of connections from those

wetlands. Id. at 1077. It started with a roadside ditch

connected to a culvert. Id. The culvert connected to an

unnamed ephemeral stream. Id. And that stream

connected to a relatively permanent named creek. Id.

Ultimately, the Corps traced the wetlands to a

traditionally navigable bay some 10 to 15 miles away. Id.

The Fifth Circuit, relying in part on photographs of the

13

property in question, found that it was “not difficult to

determine where the ‘water’ ends and any ‘wetlands’ on

[the landowner’s] property begin” because there was

“simply no connection whatsoever.” Id. at 1078. And

because the wetlands were not indistinguishable from an

undisputed water of the United States, there was “no

factual basis as a matter of law for federal Clean Water

Act regulation” of the property. Id.

Smaller gaps can also preclude jurisdiction. In Glynn

Environmental Coalition, Inc. v. Sea Island

Acquisition, LLC, a district court relied on images that

showed a “clear demarcation” between wetlands on the

property in question and a jurisdictional creek that was

only “hundreds of feet away.” No. CV 219-050, 2024 WL

1088585, at *5 (S.D. Ga. Mar. 1, 2024). The presence of

various intervening features meant that there was no

surface connection between the wetlands and the creek.

Id. Accordingly, the court concluded that those wetlands

were not “indistinguishable” from a jurisdictional water

under Sackett. Id.

The Eleventh Circuit affirmed.

The court

acknowledged that the wetlands sat “in some proximity”

to the jurisdictional creek, and the “flow of water moves

generally from wetland to creek.” Glynn Env’t Coal.,

Inc. v. Sea Island Acquisition, LLC, 146 F.4th 1080, 1089

(11th Cir. 2025). But record evidence showed that the

wetlands were separated from the creek by “sections of

upland and the roads.” Id. at 1090. And there was

nothing establishing a “continuous surface connection to

a water of the United States.” Id. Without any evidence

of such a connection—that is, without something that

made it difficult to distinguish between the wetlands and

a clearly jurisdictional water—CWA jurisdiction did not

lie. Id. at 1091.

14

C. While Sackett should have resolved any confusion

over the CWA’s regulatory scope—and has in many lower

courts—others continue to ignore it.

Take the decision below, which purports to apply

Sackett. Faithful application requires more than an empty

reference to controlling authority. The Second Circuit

pays lip service to this Court by citing Sackett. But its

implementation is mistaken at best. A critical takeaway

from Sackett is that existence of a surface connection,

standing alone, does not establish jurisdiction. Such a

connection is a necessary, but not sufficient, condition. It

may have been enough to create a “significant nexus.” See

Rapanos, 547 U.S. at 767 (Kennedy, J., concurring). But

Sackett requires more.

The Second Circuit’s decision does not adhere to

what Sackett requires. The court begins its brief outline

of the controlling rule by reciting the necessity of a

“continuous surface connection” (and dutifully citing

Sackett). Pet.App.5a (emphasis added). But things

quickly veer off course. The court makes no mention of

the indistinguishability requirement. Instead, it turns its

gaze to the regulatory definition of “wetlands.” Id. (citing

33 C.F.R. § 328.3(c)(1)). Relying on that definition, the

court proclaims—contrary to what it just said—that “the

CWA does not require surface water but only soil that is

regularly saturated by surface or ground water.” Id.

(cleaned up). And then, without further analysis, it

announces its conclusion: The connection between the

wetlands on Petitioner’s property and traditional

navigable waters establishes CWA jurisdiction.

The lack of fidelity to Sackett is obvious. The court

never tried to apply—nor even mention—Sackett’s

express indistinguishability holding. In its place is the

reference to the regulatory definition of wetlands and a

15

focus on groundwater. Contra Vill. of Oconomowoc Lake

v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994)

(“Neither the Clean Water Act nor the EPA's definition

asserts authority over ground waters, just because these

may be hydrologically connected with surface waters.”).

At best, that reference was unnecessary; it is undisputed

that there were wetlands on Petitioner’s property. At

worst, it was an attempt to provide cover for a recalcitrant

adherence to the now-discarded significant nexus test.

Either way, the decision below is wrong. Palpably so.

Unfortunately, the Second Circuit’s decision only

exemplifies a growing trail of post-Sackett errors.

Some courts still believe that wetlands with clear

separation from rivers fall within the CWA’s regulatory

sweep. For example, in Washington, one court held that

wetlands were under CWA jurisdiction despite a clear 30to 75-foot separation. See Waste Action Project v. Girard

Res. & Recycling LLC, No. 2:21-cv-00443-RAJ-GJL, 2024

WL 4366978, at *14 (W.D. Wash. Sept. 4, 2024). Another

court in the same district distinguished Sackett in a similar

way. United States v. Bobby Wolford Trucking &

Salvage, Inc., No. C18-0747 TSZ, 2023 WL 8528643, at *2

(W.D. Wash. Dec. 8, 2023). A court in Massachusetts tried

to create an escape hatch by claiming they couldn’t see

from “aerial photographs” “what infrastructure exists and

that could definitively form or sever a continuous surface

connection.” Conservation L. Found., Inc. v. Town of

Barnstable, No. 24-cv-11886-ADB, 2025 WL 1596278, at

*6 (D. Mass. June 5, 2025). And a court in Virginia refused

to reverse its earlier jurisdictional ruling where “four

miles” separated wetlands from traditional navigable

waters. Precon Dev. Corp. v. U.S. Army Corps of Eng’rs,

No. 2:24-cv-337, 2025 WL 510234, at *4 (E.D. Va. Feb. 14,

2025).

16

Still, other courts have resorted to “parsing” Sackett’s

language—rather than applying it—to evaluate EPA’s

jurisdictional reach. White v. EPA, 737 F. Supp. 3d 310,

326 (E.D.N.C. 2024). And a New Jersey court failed to

consider Sackett altogether. N.J. Dep’t of Env’t Prot. v.

Hexcel Corp., No. A-1889-22, 2024 WL 1693714, at *4-5

(N.J. Super. Ct. App. Div. Apr. 19, 2024). Such confusion

will only result in further splintered application.

This Court should grant review to correct these errors

and provide needed clarity. Sackett was intended to

resolve definitional confusion that “sparked decades of

agency action and litigation” and replace the competing

“array” of interpretations of the CWA’s reach with a

straightforward, relatively easy-to-administer rule. See

Sackett, 598 U.S. at 663, 666. The previous paradigm left

many landowners paralyzed by uncertainty about the

CWA’s jurisdictional sweep.

The only antidote is

consistent and predictable jurisdictional determinations.

That outcome is only possible if the lower courts faithfully

apply Sackett. The Second Circuit didn’t do so below, so

this Court should intervene.

III.

“Watering down” Sackett tramples state

authority and imposes unnecessary costs.

A. The CWA was always intended to be an exercise in

cooperative federalism. See pp. 3–7, supra; see also, e.g.,

Sierra Club v. U.S. Army Corps of Eng’rs, 909 F.3d 635,

647 (4th Cir. 2018). Indeed, it is “one of the” statutory

genre’s “clearest examples.” Damien Schiff, Keeping the

Clean Water Act Cooperatively Federal—or, Why the

Clean Water Act Does Not Directly Regulate

Groundwater Pollution, 42 WM. & MARY ENVTL. L. &

POL’Y REV. 447, 456 (2018). Decades of overreach by

federal regulators eroded the role that, properly

17

understood, the CWA reserves for the States. Enforcing

Sackett’s jurisdictional paradigm will restore the balance

that Congress originally intended.

Restoring that balance comes with numerous benefits.

At the threshold, “authority over water is a core attribute

of state sovereignty.” Kansas v. Nebraska, 574 U.S. 445,

480 (2015) (Thomas, J., concurring and dissenting in part).

States have a compelling interest in both the preservation

and productive use of water resources within their

territory. A properly cabined CWA ensures that States

are not deprived of this significant sovereign prerogative.

The resulting local control increase will also be

beneficial. The CWA’s “cooperative federalism framework

encourages states to experiment with different regulatory

approaches.” Naturaland Tr. v. Dakota Fin. LLC, 41

F.4th 342, 353-54 (4th Cir. 2022) (Quattlebaum, J.,

dissenting). The freedom to experiment, coupled with the

comparative ease of enacting and amending state-level

environmental laws, means “States are better equipped

than the federal government to quickly act to protect

[adjacent, non-adjoining] waterbodies” like wetlands.

John C. Colson, Implications for “Adjacent” Waterbodies

After Sackett v. EPA, 12 TEX. A&M L. REV. 1305, 1325

(2025). State regulators also benefit from familiarity and

local expertise that allow them to tailor regulation to the

“precise circumstances of each … watershed.” Id.; see

also Jonathan H. Adler, Wetlands, Waterfowl, and the

Menace of Mr. Wilson: Commerce Clause Jurisprudence

and the Limits of Federal Wetland Regulation, 29 ENVTL.

L. 1, 52 (1999) (“[T]he ecological value and function of a

wetland is going to be determined, in large part, by its

location and surroundings.”). This allows state regulatory

regimes to “respond to changing information about what

types of protections are worthwhile.” Wetlands,

18

Waterfowl, and the Menace, supra, at 50. And, ultimately,

this greater proximity makes “State and local wetland

regulation … more effective” than federal efforts. Id. at

53.

Thus, adherence to and enforcement of Sackett will not

leave our Nation’s many non-jurisdictional wetlands

unprotected. As Congress understood when it enacted the

CWA, States are ready and able partners, fully capable of

exercising stewardship over these vital resources.

B. Beyond the damage it does to the federal-state

balance of power, federal overreach like that seen here

also comes with a substantial price tag for States and

other regulated parties. “[N]o statute yet known pursues

its stated purpose at all costs.” Stanley v. City of Sanford,

606 U.S. 46, 58 (2025) (cleaned up). But in applying the

CWA too expansively, courts below sometimes act like it

does.

Despite Congress’s “laudable intent” in passing the

Act, President Nixon predicted long ago that it would

likely “br[eak] the budget.” Veto of the Federal Water

Pollution Control Act Amendments of 1972, 1 PUB.

PAPERS 990 (Oct. 17, 1972). Though he made this

prediction about the federal budget, he was more than

accurate when it came to state budgets.

Indeed,

economists estimate that the Clean Water Act has cost the

entire country an almost unimaginable $2.8 trillion (2017

USD). David A. Keiser & Joseph S. Shapiro, US Water

Pollution Regulation over the Last Half Century:

Burning Waters to Crystal Springs?, 33 J. ECON.

PERSPECTIVES

51

(2019),

available

at

https://tinyurl.com/cn55xt8. This staggering number

might be more palatable if the federal government bore

most of that cost. But federal spending only accounts for

$0.6 trillion. Id. at Online Appendix B, available at

19

https://tinyurl.com/2dxtknte. States, local municipalities,

and industry have shouldered the brunt of the load at $2.2

trillion. Id. And this number only considers overall

economic burdens.

Regulated parties suffer more acute pain. Parties who

“fill material in locations denominated ‘waters of the

United States’” must obtain relevant permits. Rapanos,

547 U.S. at 721; see also 33 U.S.C. §§ 1311, 1344,

1362(12)(A). These permits are expensive. For instance,

“[t]he average applicant for an individual permit” spent

more than $270,000 by 2001. Rapanos, 547 U.S. at 721

(citing David Sunding & David Zilberman, The Economics

of Environmental Regulation by Licensing: An

Assessment of Recent Changes to the Wetland Permitting

Process, 42 NAT. RES. J. 59, 74-76 (2002)). This can

aggregate to “over $1.7 billion” each year by the “private

and public sectors obtaining wetlands permits.” Id.

(cleaned up).

Landowners incur other significant costs. When

landowners fill in their properties with “dirt and rocks,”

Sackett, 598 U.S. at 662, for example, they may be

required to deal with onerous mitigation costs that could

stretch “to the tune of $770,000,” see Jason S. Johnston,

Environmental Permits: Public Property Rights in

Private Lands and the Extraction and Redistribution of

Private Wealth, 96 NOTRE DAME L. REV. 1559, 1567

(2021). Mere coverage under the Act devalues their home

prices at an average of 4% compared to non-regulated

properties. See, e.g., KATHERINE A. KIEL, THE IMPACT

OF WETLANDS RULES ON THE PRICES OF REGULATED

AND PROXIMATE HOUSES: A CASE STUDY 4 (2007). As a

result, developers eschew investment in these lands. See,

e.g., Hannah Druckenmiller et al., Extended Abstract:

20

Consequences of Land Use Regulation Under the Clean

Water Act 3 (Working Paper, 2025).

Yet, tangible burdens are not the only form of tax these

regulations extract. Regulated parties must pay with

their time as well. Just to obtain a permit, the process can

take over two years from start to finish. Rapanos, 547

U.S. at 721. Never mind other “disadvantage[s],”

Michigan v. EPA, 576 U.S. 743, 752 (2015), like “auditing,

insurance, financial, personnel, and other management

systems associated with” compliance, Becerra v. San

Carlos Apache Tribe, 602 U.S. 222, 228 (2024). Regulated

parties expend resources “learning about rights, rules,

and demands.” Aske Halling & Martin Baekgaard,

Administrative Burden in Citizen-State Interactions: A

Systematic Literature Review, 34 J. PUB. ADMIN.

RESEARCH & THEORY 180, 181 (2024). Indeed, they must

often overcome the subjective hurdles imposed by

government actors playing the role of “enlightened

despot[s].” Rapanos, 547 U.S. at 721. All these

disadvantages take time—and by extension, money.

One would expect these costs to come with

extraordinary results. But “it is unclear whether the

Clean Water Act has been effective or whether water

pollution has decreased at all.” Jonathan H. Adler, The

Clean Water Act at 50: Is the Act Obsolete?, 73 CASE W.

RESERVE L. REV. 207, 208 n.8 (2022) (quoting David A.

Keiser & Joseph S. Shapiro, Consequences of the Clean

Water Act and the Demand for Water Quality, 134 Q.J.

ECON. 349, 350 (2019)). Indeed, “the goal of eliminating

all surface water pollution within thirteen years of the

CWA’s adoption appears to be wildly aspirational, and

perhaps even to amount to foolhardy optimism.” Robert

L. Glicksman & Matthew R. Batzel, Science Politics, Law,

and the Arc of the Clean Water Act: The Role of

21

Assumptions in the Adoption of a Pollution Control

Landmark, 32 WASH. U. J. L. & POL’Y 99, 105 (2010).

“[T]he CWA in fact has come nowhere close to meeting its

goals.” JAMES SALZMAN & BARTON H. THOMPSON, JR.,

ENVIRONMENTAL LAW AND POLICY (CONCEPTS AND

INSIGHTS) 180 (5th ed. 2019). As this Court declared

before, it is not “rational ... to impose billions [never mind

trillions] of dollars in economic costs in return for a few

dollars in health or environmental benefits.” Michigan,

576 U.S. at 752.

Though it is still early to know the full extent Sackett

will relieve States, industry, and taxpayers of these

enormous and extra-statutorily imposed regulatory

burdens, early estimates are promising. For instance,

EPA initially opined that at least 1.2 million miles of

ephemeral streams and 63% of wetlands could be

impacted by Sackett. EPA, Public Webinar: Updates on

the Definition of “Waters of the United States,” at 24:0924:18, (YouTube, Sept. 12, 2023, 03:00 PM EST),

https://tinyurl.com/ywh6wsmp. Others estimate that up

to “eighty-two million acres … of nontidal wetlands” could

be outside the Clean Water Act’s jurisdiction after

Sackett. See, e.g., Adam C. Gold, Putting WOTUS on the

Map: Estimating the Implications of Sackett v. EPA on

Wetland Protections, 38 TUL. ENV’T L.J. 269, 273 (2025).

Assuming permit-seekers choose to develop all these

lands, and the lands would have been subject to EPA

mitigation requirements, see 33 C.F.R. § 332.4(c); 40

C.F.R. § 230.92, States and industry partners could expect

more than $5 trillion (2015 USD) in regulatory savings,

see EPA, ECONOMIC ANALYSIS OF THE EPA-ARMY

CLEAN WATER RULE 40 (2015) (“[A]verage unit costs

ranging from $41,572 to $111,985 per acre of wetlands

mitigated and from $95 to $1,000 per linear foot of stream

mitigation.”). And there are still potential economic

22

benefits from cultivating the land for residential,

commercial, and agricultural use.

As a matter of logic, these saving and investment

opportunities are unavailable when lower courts expand

the definition of “waters of the United States” back to

what it’s been for the past several decades. Such

definitions pull properties back into the Clean Water Act’s

regulatory eddy. See, e.g., Precon Dev. Corp., 2025 WL

510234, at *4. So the lower courts must strictly adhere to

Sackett, and this Court should keep careful watch to

prevent further erosion of the holding.

As parties spiral down this whirlpool, irrational costs to

the aggregate tune of trillions of dollars make

development prohibitively expensive. That cost explains

why many choose to stay out of businesses implicating

water issues completely. See Druckenmiller, supra, at 3

(finding higher developer request rates where similarly

situated land is outside the Clean Water Act’s

jurisdiction).

After Sackett, States and other parties shouldn’t have

any doubt what lands they may improve without incurring

inordinate regulatory costs. Still, farmers like Mr.

Andrews continue to face oppressive federal action when

his property only connects with other waters during

“rainfall-runoff events.” Pet.6. Such a temporary,

intermittent connection leaves no court wondering where

the water begins and where it ends. Yet, Mr. Andrews—

like States and so many others—may have to pay millions

of dollars for federal overreach. Id. at 32 n.15.

* * *

The Clean Water Act as implemented over the past 50

years has drained State reserves, industry resources, and

the average taxpayer. Sackett cleared the debris of

23

unlawful regulatory requirements, making way for lawful

regulatory savings and economic investment. But lower

courts continue to misapply—or ignore—Sackett’s

instructions.

State sovereignty and coffers need

intervention now. The Court should grant the petition to

remind the lower courts that they must not overextend

“waters of the United States” at state, industry, and

taxpayers’ economic demise.

CONCLUSION

The Court should grant the petition for certiorari and

summarily reverse.

24

Respectfully submitted.

MICHAEL T. HILGERS

Attorney General

JOHN B. MCCUSKEY

Attorney General

CODY S. BARNETT

Solicitor General

CALEB B. DAVID

Deputy Solicitor General

Counsel of Record

ZACHARY A. VIGLIANCO

Principal Deputy Solicitor MATT K. NIU

General

Caldwell Fellow

NEBRASKA DEPARTMENT

OF JUSTICE

1445 K. Street, Room 2115

Lincoln, Nebraska 68509

cody.barnett@

nebraska.gov

zachary.viglianco

@nebraska.gov

(402) 471-2683

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25306

cdavid@wvago.gov

mniu@wvago.gov

(304) 558-2021

Counsel for Amici Curiae

States of West Virginia and Nebraska

25

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

STEPHEN J. COX

Attorney General

State of Alaska

TIM GRIFFIN

Attorney General

State of Arkansas

JAMES UTHMEIER

Attorney General

State of Florida

CHRISTOPHER M. CARR

Attorney General

State of Georgia

RAÚL R. LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

BRENNA BIRD

Attorney General

State of Iowa

KRIS W. KOBACH

Attorney General

State of Kansas

RUSSELL COLEMAN

Attorney General

Commw. of Kentucky

LIZ MURRILL

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

CATHERINE HANAWAY

Attorney General

State of Missouri

DREW H. WRIGLEY

Attorney General

State of North Dakota

DAVE YOST

Attorney General

State of Ohio

GENTNER DRUMMOND

Attorney General

State of Oklahoma

26

ALAN WILSON

Attorney General

State of South Carolina

MARTY J. JACKLEY

Attorney General

State of South Dakota

JONATHAN SKRMETTI

Attorney General

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

KEITH G. KAUTZ

Attorney General

State of Wyoming