Petition for Writ of Certiorari — The Glynn Environmental Coalition, Inc., et al., Petitioners v. Sea Island Acquisition, LLC

Supreme Court briefJan 26, 2026

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No. 25-___

In the Supreme Court of the United States

THE GLYNN ENVIRONMENTAL COALITION, INC.,

CENTER FOR A SUSTAINABLE COAST, INC., AND

JANE FRASER,

Petitioners,

SEA ISLAND ACQUISITION, LLC,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

John A. Brunini

Laura D. Heusel

BUTLER SNOW LLP

1020 Highland Colony

Parkway, Suite 1400

Ridgeland, MS 39157

Kevin K. Russell

Counsel of Record

Daniel Woofter

RUSSELL & WOOFTER LLC

1701 Pennsylvania

Avenue NW, Suite 200

Washington, DC 20006

(202) 240-8433

kr@russellwoofter.com

QUESTION PRESENTED

The Clean Water Act generally prohibits filling in

wetlands that qualify as “waters of the United States.”

See 33 U.S.C. § 1311(a). Landowners who want to confirm

whether wetlands on their property fall within that

definition may obtain an “approved jurisdictional

determination” from the U.S. Army Corps of Engineers,

which is subject to judicial review. 33 C.F.R. § 331.2; see

U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590,

597-99 (2016). Landowners may also, however, forego

that process and simply seek a permit from the Corps

based on a “preliminary jurisdictional determination.”

See 33 U.S.C. § 1344(a); 33 C.F.R. § 331.2. Those who do

agree that “all wetlands and other water bodies on the site

affected in any way by that activity are jurisdictional

waters of the United States” and that accepting the

permit “precludes any challenge to such jurisdiction . . . in

any administrative or judicial compliance or enforcement

action, or in any administrative appeal or in any Federal

court.” Pet. App. 9a.

The question presented is:

Is a Clean Water Act permittee’s waiver of “any

challenge” to the jurisdictional status of a wetland “in any

Federal court” limited to government suits to enforce

permit conditions, thereby allowing jurisdictional

challenges in suits by states and private citizens under the

Act’s citizen suit provision?

PARTIES TO THE PROCEEDINGS

The caption contains all the names of all the parties

to the proceedings below.

STATEMENT OF RELATED PROCEEDINGS

The proceedings directly related to this petition are:

• The Glynn Environmental Coalition, Inc., Center

for a Sustainable Coast, Inc., Jane Fraser v. Sea

Island Acquisition, LLC, 146 F.4th 1080 (11th Cir.

2025).

•

The Glynn Environmental Coalition, Inc., Center

for a Sustainable Coast, Inc., Jane Fraser v. Sea

Island Acquisition, LLC, 26 F.4th 1235 (11th Cir.

2022).

•

The Glynn Environmental Coalition, Inc.; Center

for a Sustainable Coast, Inc.; and Jane Fraser v.

Sea Island Acquisition, LLC, No. CV 219-050

(S.D. Ga. Mar. 1, 2024).

RULE 29.6 STATEMENT

The Glynn Environmental Coalition, Inc., has no

parent corporation and no publicly listed company owns

10% or more of its stock. Center for a Sustainable Coast,

Inc., has no parent corporation and no publicly listed

company owns 10% or more of its stock.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ................................................ i

PARTIES TO THE PROCEEDINGS ............................. ii

STATEMENT OF RELATED PROCEEDINGS.......... ii

RULE 29.6 STATEMENT ................................................. ii

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

INTRODUCTION ............................................................... 1

OPINIONS BELOW ........................................................... 3

JURISDICTION .................................................................. 3

RELEVANT STATUTORY PROVISION ...................... 3

STATEMENT OF THE CASE ......................................... 4

Legal Background......................................................... 4

A. General scheme of the Clean Water Act .............. 4

B. Clean Water Act permitting................................... 7

C. Jurisdictional waivers ............................................. 8

II. Factual Background ..................................................... 9

III. Procedural History ..................................................... 11

REASONS FOR GRANTING THE PETITION ......... 14

The Eleventh Circuit’s construction of the waiver

language is wrong. ...................................................... 15

II. The question presented is important and should

be decided in this case. ............................................... 22

III. If necessary, the Court should call for the views

of the United States. ................................................... 25

CONCLUSION .................................................................. 26

APPENDIX A – OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED JULY 29, 2025

........................................................................................ 1a

APPENDIX B – ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA,

BRUNSWICK DIVISION, FILED MARCH 1,

2024.............................................................................. 32a

APPENDIX C – DENIAL OF REHEARING OF

THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT,

FILED AUGUST 29, 2025....................................... 46a

TABLE OF AUTHORITIES

Cases

Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008) .......................................................... 15

Boyle v. United States,

556 U.S. 938 (2009) .......................................................... 15

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981) ........................................................ 4, 6

Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.

Kirtz,

601 U.S. 42 (2024) ............................................................ 17

Dep’t of Hous. & Urb. Dev. v. Rucker,

535 U.S. 125 (2002) .......................................................... 16

Gallardo By & Through Vassallo v. Marstiller,

596 U.S. 420 (2022) .......................................................... 16

Glynn Env’t Coal., Inc. v. Sea Island

Acquisition, LLC,

26 F.4th 1235 (11th Cir. 2022) ........................................ 11

Graham Cnty. Soil & Water Conservation Dist.

v. United States ex rel. Wilson,

559 U.S. 280 (2010) .......................................................... 19

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc.,

484 U.S. 49 (1987) ............................................................ 21

Harrison v. PPG Indus., Inc.,

446 U.S. 578 (1980) .................................................... 16, 20

Massachusetts v. EPA,

549 U.S. 497 (2007) .......................................................... 17

Middlesex Cnty. Sewerage Auth. v. Nat’l Sea

Clammers Ass’n,

453 U.S. 1 (1981) ...................................................... 1, 7, 21

PUD No. 1 of Jefferson Cnty. v. Washington

Dep’t of Ecology,

511 U.S. 700 (1994) ............................................................ 4

Russell Motor Car Co. v. United States,

261 U.S. 514 (1923) .......................................................... 20

Sackett v. EPA,

598 U.S. 651 (2023) ...................................... 8, 9, 12, 14, 17

Schindler Elevator Corp. v. United States

ex rel. Kirk,

563 U.S. 401(2011) ........................................................... 19

Sebelius v. Cloer,

569 U.S. 369 (2013) .......................................................... 17

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

578 U.S. 590 (2016) ............................... i, 2, 7, 8, 19, 24, 25

U.S. Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) ........................................................ 1, 7

United States v. Gonzales,

520 U.S. 1 (1997) ........................................................ 15, 16

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ............................................................ 5

United States v. Stevens,

559 U.S. 460 (2010) .......................................................... 20

Statutes

Clean Water Act, 33 U.S.C. § 1251 et seq ... i, 1, 2, 3, 4, 6, 7,

10, 11, 13, 14, 25

33 U.S.C. § 1251(a)............................................................. 4

33 U.S.C. § 1251(a)(2) ........................................................ 4

33 U.S.C. § 1251(e)............................................................. 6

33 U.S.C. § 1311(a)...................................................... i, 6, 8

33 U.S.C. § 1319(d) ...................................................... 4, 21

33 U.S.C. § 1319(g)(6) ........................................................ 3

vii

33 U.S.C. § 1341(a)(1) ........................................................ 6

33 U.S.C. § 1344 ........................................................ i, 6, 14

33 U.S.C. § 1344(a)............................................................. 7

33 U.S.C. § 1344(e)(1) ........................................................ 7

33 U.S.C. § 1344(p) ............................................................ 6

33 U.S.C. § 1362(6)-(7)................................................... 6, 8

33 U.S.C. § 1362(12)(A) ................................................. 6, 8

33 U.S.C. § 1365(a)............................................... 2, 3, 7, 21

33 U.S.C. § 1365(a)(1) ........................................................ 7

33 U.S.C. § 1365(b)(1)(B) ................................................ 21

33 U.S.C. § 1365(c)(3) ...................................................... 22

33 U.S.C. § 1365(g) .................................................... 1, 2, 7

42 U.S.C. § 6972 ................................................................. 2, 7

Other Authorities

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation Of Legal Texts (2012) .... 18, 19

Charles A. Taylor & Hannah Druckenmiller,

Wetlands, Flooding, and the Clean Water Act,

112 Am. Econ. Rev. 1334 (2022) ....................................... 5

S. Rep. No. 92-414 (1971) ...................................................... 4

U.S. Army Corps of Eng’rs, Environmental

Program,

https://www.usace.army.mil/Missions/Environ

mental/............................................................................... 23

U.S. Army Corps of Eng’rs, Regulatory

Guidance Letter No. 16-01 ....................................... 3, 8, 9

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

https://www.iwr.usace.army.mil/Missions/Valu

e-to-the-Nation/Regulatory/RegulatoryPermits/............................................................................. 23

viii

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

Permits Database, https://permits.ops.

usace.army.mil/orm-public# .......................................... 23

U.S. EPA, EPA 843-F-01-002d, Threats to

Wetlands 1 (Sept. 2001) .................................................... 1

U.S. EPA, Off. of Rsch. & Dev., Connectivity of

Streams & Wetlands to Downstream Waters:

A Review & Synthesis of the Scientific

Evidence ES-2-3 (Jan. 2015) ............................................ 5

U.S. EPA, What is a Jurisdictional Delineation

under CWA Section 404?,

https://www.epa.gov/cwa-404/whatjurisdictional-delineation-under-cwa-section404 ...................................................................................... 24

U.S. EPA, Why are Wetlands Important?,

https://tinyurl.com/53ymcn89....................................... 1, 5

U.S. Fish & Wildlife Serv., Status and Trends of

Wetlands in the Coterminous United States

2009 to 2019 Report to Congress (2024) ........... 1, 5, 6, 25

Webster’s Third New International Dictionary

(1976) ................................................................................. 15

Regulations

Reissuance of Nationwide Permits,

77 Fed. Reg. 10184 (Feb. 21, 2012) ................................ 10

33 C.F.R. § 320.4(a) ............................................................. 10

33 C.F.R. § 320.4(a)(1) ........................................................... 7

33 C.F.R. § 331.2 .................................................................... 8

INTRODUCTION

The nation’s wetlands are one of its most important,

and vulnerable, resources. They act as filters for our

drinking water, buffers against rising sea levels and

seasonal flooding, and essential habitats for plants and

animals, including fully half of the country’s endangered

species.1 Yet, since the nation’s founding, we have lost

more than half of our original wetlands and what remains

is shrinking at an alarming and accelerating rate.2

Protecting our remaining wetlands is one of the

central purposes of the Clean Water Act, 33 U.S.C. § 1251

et seq. To that end, the statute generally prohibits filling

in wetlands falling within the statute’s purview, except as

permitted by the U.S. Army Corps of Engineers

(“Corps”), subject to important conditions and

limitations.

Congress understood that government

enforcement of these protections would be insufficient. It

therefore enacted a broad citizen suit provision,

deputizing affected members of the public to act as

“private attorneys general” to supplement the

government’s efforts. Middlesex Cnty. Sewerage Auth. v.

Nat’l Sea Clammers Ass’n, 453 U.S. 1, 16-17 (1981) (citing

33 U.S.C. § 1365(g)). And it defined states as “citizens”

entitled to enforce the Act through these citizen suit

provisions. See U.S. Dep’t of Energy v. Ohio, 503 U.S.

See U.S. EPA, EPA 843-F-01-002d, Threats to Wetlands 1 (Sept.

2001), https://tinyurl.com/4ppd54ra; U.S. Fish & Wildlife Serv.,

Status and Trends of Wetlands in the Coterminous United States

2009 to 2019 Report to Congress (2024) (“Status and Trends”),

https://tinyurl.com/mpv395w3; U.S. EPA, Why are Wetlands

Important?, https://tinyurl.com/53ymcn89 (last updated July 23,

2025) (“Why are Wetlands Important”).

See Status and Trends, supra, p. 17.

607, 614 n.5 (1992) (citing 33 U.S.C. § 1365(a), (g); 42

U.S.C. § 6972).

The Eleventh Circuit’s decision in this case will

impede the work of those private attorneys general as

well as the government itself. The question its decision

presents arises from a problem that occurs when a

landowner seeks a permit to fill a wetland without first

obtaining an official determination from the Corps as to

whether that water resource falls within the scope of the

Clean Water Act. Frequently, the work allowed by the

permit will make it difficult, if not impossible, to

determine after the fact whether the wetlands were

sufficiently connected to the nation’s navigable

waterways to fall within the Act’s jurisdiction. And that

would create real problems for proving jurisdiction in any

subsequent action alleging that the landowner

disregarded permit conditions or otherwise violated the

statute.

The Corps could have addressed this dilemma by

refusing to consider permit applications until the

landowner had obtained an approved jurisdictional

determination from the Corps. That process involves

“extensive factfinding by the Corps regarding the

physical and hydrological characteristics of the

property,” U.S. Army Corps of Eng’s v. Hawkes Co., 578

U.S. 590, 597 (2016), and preserves a record of the

relevant jurisdictional evidence, in the event of any future

dispute. But as an accommodation to landowners wishing

to avoid the delay and expense of that process, the Corps

instead accepts applications for permits without such a

determination, on the condition that permittees waive

“any challenge to such jurisdiction in any administrative

or judicial compliance or enforcement action, or in any

administrative appeal or in any Federal court.” U.S.

Army Corps of Eng’rs, Regulatory Guidance Letter No.

16-01, app. 2, ¶ 2(6) (Oct. 2016) (“RGL 16-01”).

In this case, the Eleventh Circuit engrafted two

extratextual limitations into that waiver. First, the court

held that the waiver applies only in actions to enforce the

permit’s conditions, thereby allowing a landowner to

contest jurisdiction in any other kind of proceeding (e.g.,

a government enforcement action alleging illegal

dumping of barrels of toxic waste into the wetland before

obtaining the permit). Pet. App. 10a-11a. Second, the

Eleventh Circuit held that the waiver does not apply to

citizen suits at all. Id. 11a-13a. Both limitations conflict

with the plain language of the waiver’s text and will

dramatically undermine enforcement of the statute

unless this Court intervenes.

OPINIONS BELOW

The decision of the court of appeals (Pet. App.

1a-31a) is reported at 146 F.4th 1080. The decision of the

district court (Pet. App. 32a-45a) is unreported but

available at 2024 WL 1088585.

JURISDICTION

The judgement of the court of appeals was entered

on July 29, 2025. Pet. App. 1a. The court of appeals

denied a timely petition for rehearing on August 29, 2025.

Id. 46a. Justice Thomas extended the time for filing this

petition through January 26, 2026. No. 25A582. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

Section 1365(a) of the Clean Water Act provides, in

relevant part:

Except as provided in subsection (b) of this

section and section 1319(g)(6) of this title, any

citizen may commence a civil action on his own

behalf-(1) against any person (including (i) the

United States, and (ii) any other

governmental instrumentality or agency to

the extent permitted by the eleventh

amendment to the Constitution) who is

alleged to be in violation of (A) an effluent

standard or limitation under this chapter or

(B) an order issued by the Administrator or

a State with respect to such a standard or

limitation . . . .

The district courts shall have jurisdiction,

without regard to the amount in controversy or

the citizenship of the parties, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such

act or duty, as the case may be, and to apply any

appropriate civil penalties under section 1319(d)

of this title.

STATEMENT OF THE CASE

Legal Background

General Scheme Of The Clean Water Act

In 1972, recognizing that prior federal efforts to

protect the nation’s water resources had “been

inadequate in every vital aspect,” Congress enacted what

is now known as the Clean Water Act. City of Milwaukee

v. Illinois & Michigan, 451 U.S. 304, 310 (1981) (quoting

S. Rep. No. 92-414, at 7 (1971)). The Act’s overarching

objective is “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters”

and to ensure “the protection and propagation of fish,

shellfish, and wildlife” that depend on those waters. 33

U.S.C. § 1251(a), (a)(2); see also PUD No. 1 of Jefferson

Cnty. v. Washington Dep’t of Ecology, 511 U.S. 700, 704

(1994).

This includes checking the runaway destruction of

wetlands. See, e.g., United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 132-33, 136-39 (1985). After

slowing to an extent in the middle of the last century, net

wetland losses accelerated during the first decades of this

century.3 The U.S. Fish and Wildlife Service reports that

the annual “rate of net wetland loss” “accelerated by over

50%” between studies covering 2004-2009 and 2009-2019.4

Those losses are catastrophic. Wetlands serve as filters

for the nation’s waters, preventing agricultural runoff

and other pollutants from reaching larger rivers and

water sources. 5 They also afford vital protection for

flood-prone areas, absorbing and slowly releasing heavy

rains and storm surges. 6 It is estimated that wetland

losses between 2001 and 2016 cost taxpayers more than

$600 million each year in claims against the National

Flood Insurance Program alone.7 Filtering rain and flood

waters through wetlands also slows and limits the

transport of sediment downstream, helping slow erosion

and the filling of navigation channels. 8 In addition,

Status and Trends, supra, p. 8.

Id. p. 17.

See, e.g., id. p. 28; Why are Wetlands Important, supra; U.S.

EPA, Off. of Rsch. & Dev., Connectivity of Streams & Wetlands to

Downstream Waters: A Review & Synthesis of the Scientific

Evidence ES-2-3 (Jan. 2015) (“Connectivity Report”).

See Connectivity Report, supra, pp. ES-2-3; see also Charles A.

Taylor & Hannah Druckenmiller, Wetlands, Flooding, and the Clean

Water Act, 112 Am. Econ. Rev. 1334, 1337, 1352 (2022).

Taylor & Druckenmiller, supra, p. 1356.

See Status and Trends, supra, p. 10; Why are Wetlands

Important, supra; Connectivity Report, supra, pp. ES-2-3.

“[r]oughly half of the species protected under the U.S.

Endangered Species Act are wetland-dependent,

including the American crocodile, chinook salmon,

whooping crane, bog turtle, manatee, and several orchid

species.”9 About “80% of protected birds [also] depend on

wetlands.”10

To protect such vital resources, the Clean Water Act

“established a new system of regulation under which it is

illegal for anyone to discharge pollutants into the Nation’s

waters except pursuant to a permit.” City of Milwaukee,

451 U.S. at 310-11. In particular, the Act prohibits “the

discharge of any pollutant” into the “waters of the United

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

“Pollutants” include dredged or other fill materials. Id.

§ 1362(6). The Corps may issue permits for discharges,

including to fill in wetlands covered by the Act, but only

when certain conditions are met. Id. § 1344. 11 The

permit holder is shielded from enforcement actions by the

government and private plaintiffs for otherwise unlawful

discharges so long as the permit conditions are observed.

Id. § 1344(p).

Congress deemed essential public participation in

the creation—and enforcement—of clean water

standards. See 33 U.S.C. § 1251(e) (declaring that

“[p]ublic participation in the development, revision, and

enforcement of any regulation, standard, effluent

limitation, plan, or program established by the

Administrator . . . shall be provided for, encouraged, and

assisted by the Administrator and the States”).

Status and Trends, supra, p. 10 (citation and footnotes omitted).

Ibid. (footnote omitted).

The Corps typically will issue a permit only if the applicant has

also obtained the necessary certifications from the state in which the

project takes place. See 33 U.S.C. § 1341(a)(1).

Consistent with that philosophy, Congress provided for

citizen suits for violations of the statute’s most essential

provisions to supplement government efforts. See id.

§ 1365(a)(1). In bringing such actions, citizens operate as

“private attorneys general.” Nat’l Sea Clammers, 453

U.S. at 16-17. States are likewise authorized to enforce

the Act through the same provision by virtue of falling

under the Act’s definition of a “citizen.” See U.S. Dep’t of

Energy v. Ohio, 503 U.S. 607, 614 n.5 (1992) (citing 33

U.S.C. § 1365(a), (g); 42 U.S.C. § 6972).

Clean Water Act Permitting

The Corps issues individual and nationwide permits.

Individual permits are specific to a particular property

and may only be awarded after publication of the

application and an opportunity for public hearings. 33

U.S.C. § 1344(a). That process can be time-consuming

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

578 U.S. 590, 594-95 (2016). Accordingly, the Act also

allows the Corps to issue general nationwide permits for

certain categories of activities that “will cause only

minimal adverse environmental effects when performed

separately, and will have only minimal cumulative

adverse effect on the environment.”

33 U.S.C.

§ 1344(e)(1).

In deciding whether to issue either kind of permit,

the Corps considers “probable impacts, including

cumulative impacts, of the proposed activity and its

intended use on the public interest.”

33 C.F.R.

§ 320.4(a)(1). The Corps then “balance[s]” the “benefits

which reasonably may be expected to accrue from the

proposal . . . against its reasonably foreseeable

detriments.” Ibid.

Jurisdictional Waivers

Of course, a permit is required only if the affected

waters fall within the jurisdictional scope of the Act. The

statute regulates discharges into “navigable waters,”

defined as “the waters of the United States.” 33 U.S.C.

§§ 1311(a), 1362(7), (12)(A). The “waters of the United

States” include “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, as well as

any wetland having a continuous surface connection with

that water.” Sackett v. EPA, 598 U.S. 651, 671, 678 (2023)

(cleaned up). A continuous surface connection can exist

despite “temporary interruptions in surface connection”

caused, for example, by “low tides or dry spells.” Id. at

678. Moreover, “a landowner cannot carve out wetlands

from federal jurisdiction by illegally constructing a

barrier on wetlands otherwise covered by the [Act].” Id.

at 678 n.16.

Because it sometimes can be difficult to determine

whether a particular parcel of property contains

“jurisdictional waters,” landowners can ask the Corps to

issue an “‘approved jurisdictional determination’ stating

the agency’s definitive view on that matter.” Hawkes, 578

U.S. at 593; see also 33 C.F.R. § 331.2; RGL 16-01, supra.

An approved jurisdictional determination is subject to

judicial review. See Hawkes, 578 U.S. at 596-97, 602.

A landowner wishing to avoid the expense and delay

of obtaining an approved jurisdictional determination

may elect to seek a “preliminary jurisdictional

determination” through a truncated procedure. See RGL

16-01, supra, p. 3. At the end of that process, the Corps

will determine whether the property may contain

jurisdictional waters. See Hawkes, 578 U.S. at 595 (citing

33 C.F.R. § 331.2). The applicant can then decide to

either seek a formal, approved determination (and, if

necessary, judicial review of that decision) or to accept the

preliminary determination and apply for a permit. See

Sackett, 598 U.S. at 670-71.

If the landowner elects to apply for a permit, it

acknowledges that:

accepting a permit authorization . . . constitutes

agreement that all wetlands and other water

bodies on the site affected in any way by that

activity are jurisdictional waters of the United

States, and precludes any challenge to such

jurisdiction in any administrative or judicial

compliance or enforcement action, or in any

administrative appeal or in any Federal court.

Pet. App. 9a (emphasis added); see also RGL 16-01,

app. 2, ¶ 2(6).

II. Factual Background

Respondent Sea Island operates a hotel on St.

Simon’s Island in Georgia. Respondent wished to fill in

certain wetlands on its property and cover them with sod.

Pet. App. 6a. Water from those wetlands naturally flowed

into an adjacent salt marsh and, from there, into Dunbar

Creek, a traditionally navigable waterway. Id. 6a-7a. The

wetland and the marsh were artificially separated by a

private road built by respondent’s predecessor, but the

water flow between the two was maintained via culverts

and pipes. Id. 7a, 18a. The wetlands acted as a filter for

water making its way into Dunbar Creek and were home

to a variety of bird species, including egrets, herons,

cranes, gulls, osprey, and pelicans, as well as plant species

adapted to wetlands. Amended Complaint ¶ 44.12

The Amended Complaint is found beginning at page 237 of the

Eleventh Circuit Appendix, Volume II.

Because the project would require a permit unless

the wetlands fell outside the jurisdiction of the Clean

Water Act, respondent sought a preliminary

jurisdictional determination from the Corps. Pet. App.

2a. The Corps concluded that the wetland “might contain

‘waters of the United States.’” Ibid. Respondent elected

not to seek an approved jurisdictional determination,

from which it could have sought judicial review if it

believed that the wetlands fell outside the purview of the

Clean Water Act. Ibid. Instead, respondent applied for

a permit. See ibid.

Since no nationwide permit was available for filling

in wetlands for mere landscaping purposes, respondent

was required to seek an individual permit. Doing so

would have subjected its request to public notice and

comment. It also would have required respondent to

convince the Corps that the benefits of its landscaping

project outweighed the environmental damage of

eliminating a portion of the Island’s protective wetlands.

See 33 C.F.R. § 320.4(a) (requiring the Corps to conduct

a public interest review).

To avoid this scrutiny, respondent instead applied for

Nationwide Permit 39. Pet. App. 4a. That permit allows

landowners, under certain specified conditions, to fill

wetlands “for the construction . . . of commercial and

institutional building foundations and . . . attendant

features . . . necessary for the use and maintenance of the

structures.” Reissuance of Nationwide Permits, 77 Fed.

Reg. 10184, 10279 (Feb. 21, 2012). In creating that

Nationwide Permit, the Corps determined that when the

requirements of the permit are satisfied, the public

benefits of creating new commercial or institutional

facilities outweighs the environmental costs. See 33

C.F.R. § 320.4(a).

To obtain the permit, respondent falsely represented

that it intended to build a new office building and parking

lot over the filled-in wetland. See Amended Complaint

¶ 115. However, planning documents submitted to county

authorities immediately before and after requesting the

Clean Water Act permit showed no such building. See id.

¶¶ 126-28. Instead, the final construction plans given to

the county candidly identified the wetlands area proposed

to be impacted as “PERMANENT SODDING.” See id.

¶ 127.

After securing the permit, respondent filled in the

wetland and covered it with sod. Pet. App. 6a; Amended

Complaint ¶ 121. It never constructed any office building

or parking lot on the site. Pet. App. 6a. As a consequence,

it failed to comply with the requirements of Nationwide

Permit 39, which would not have been issued in the first

place but for respondent’s false representations.

III. Procedural History

Petitioners are local environmental groups and a

private citizen living near the now-destroyed wetland.

Had respondent filed for an individual permit, petitioners

would have been entitled to participate in public hearings

on whether the permit should be granted. And had

respondent told the truth about its plans, petitioners

could have opposed the application on the ground that the

environmental costs of the project far outweighed any

public benefit from replacing a diverse and vibrant

wetland with a lawn.

1. When it became apparent that respondent had no

intention of building on the site, and therefore had

obtained its permit through deception, petitioners filed

this action under the Act’s citizen suit provision. The

district court initially dismissed for lack of standing, but

the Eleventh Circuit reversed. See Pet. App. 7a; Glynn

Env’t Coal., Inc. v. Sea Island Acquisition, LLC, 26 F.4th

1235 (11th Cir. 2022). On remand, the district court again

dismissed, this time on the ground that the wetland was

not a part of the “waters of the United States” under this

Court’s intervening decision in Sackett v. EPA, 598 U.S.

651 (2023).

See Pet. App. 44a-45a.

The court

acknowledged petitioners’ argument that respondent had

waived the right to challenge the jurisdictional status of

the wetland in the course of obtaining its permit. Id. 40a41a. But the court believed that respondent’s challenge

“is an argument that cannot be waived.” Id. 41a.

2. Petitioners appealed but the Eleventh Circuit

affirmed. The court did not accept the district court’s

holding that respondent’s argument was non-waivable.13

The court further acknowledged that “[o]n its face, the

capacious language of the waiver would seem to

encompass citizen suits against violations of the permit.”

Pet. App. 10a. But it nonetheless concluded that the

waiver did not extend to this action for three reasons.

First, the court believed that because the waiver is

triggered by acceptance of a permit, that “framing

defines the scope of the waiver.” Pet. App. 10a. Although

applicants agree not to challenge jurisdiction in

“‘any . . . compliance or enforcement action,’” the court

believed that the “text is best read to mean any

enforcement of the permit.” Ibid. (emphasis in original).

Accordingly, the Eleventh Circuit held that even in an

enforcement action by the government, permittees are

free to challenge jurisdiction if the plaintiff alleges, for

example, that the landowner was discovered to have

dumped barrels of toxic waste into the wetland for years

before seeking the permit.

The Eleventh Circuit also rejected respondent’s arguments that

Sackett had deprived the district court of subject matter jurisdiction

and rendered the case moot. Pet. App. 15a.

Second, although the court acknowledged that a

“‘judicial compliance or enforcement action’” may

encompass actions brought by private citizens, it

nonetheless thought that the “phrases most naturally

mean administrative or compliance actions brought by the

Corps to enforce the permit.” Pet. App. 12a (emphasis

added). This precludes enforcing the waiver both in

citizen suits and in actions by agencies other than the

Corp, such as the Environmental Protection Agency, or a

state.

Third, excluding citizen suits was consistent with the

court’s view that permits “function like contracts between

the Corps and the permit holder.” Pet. App. 12a-13a

(finding that the waiver operates as a kind of quid pro quo

for “an expedited determination and a shortcut into the

permitting process” (cleaned up)). “And under general

contract law, only a party to a contract or an intended

third-party beneficiary may sue to enforce the terms of a

contract.” Id. 13a (cleaned up).

Accordingly, the Eleventh Circuit refused to enforce

the waiver against respondent and proceeded to decide

whether the complaint adequately alleged that the

subject wetland fell within the jurisdiction of the Clean

Water Act. The panel concluded that it did not, finding

that petitioners had failed to sufficiently allege a

continuous surface connection between the wetland and

Dunbar Creek. Pet. App. 17a. The court acknowledged

that petitioners had provided an expert report

documenting that when it rains, excess water from the

wetland enters the adjacent salt marsh, which is “‘directly

connected by surface and ground water to Dunbar

Creek.’” Id. 17a-18a. It further recognized that the

expert testified that “prior tidal exchange occurred

between Dunbar Creek and the wetland.” Id. 18a

(cleaned up). But the Court found this insufficient to

plausibly allege a “continuous” surface connection, noting

that at the time of the permit application, “the roads and

sections of upland already divided the wetland from the

salt marsh.” Ibid. The court did not point to anything in

the Complaint indicating that this road had been lawfully

constructed between the wetland and the marsh, and

respondents provided no evidence that a permit from the

Corps for such construction had ever been obtained. Id.

17a-21a; see Sackett, 598 U.S. at 678 n.16.

Judge Pryor wrote a concurrence to his own opinion

for the court, writing separately to express his view that

the Act does not “allow citizen suits to enforce permits

issued under section 1344,” a defense respondent had not

raised on appeal, the district court never addressed, and

no other member of the panel embraced. Pet. App. 23a.14

The panel subsequently denied a timely petition for

panel rehearing. Pet. App. 46a.

REASONS FOR GRANTING THE PETITION

The court of appeals misapplied this Court’s

precedents and the basic rules governing motions to

dismiss in determining that the subject wetlands fell

outside the jurisdiction of the Clean Water Åct. But the

Eleventh Circuit committed an even more fundamental

and far-reaching error in reaching that question in the

first place. The court acknowledged that the Corps has

reasonably provided that if a landowner desires a Clean

Water Act permit, it must either first obtain an official

determination from the Corps that the Act applies to the

subject waters or waive any challenge to such jurisdiction

in “any . . . . judicial compliance or enforcement action” in

After briefing was completed, the Court ordered the parties to

be prepared to discuss this question at oral argument. C.A. Doc. 45.

It then granted the parties’ motions to submit supplemental briefs on

the topic. C.A. Docs. 47 & 53.

“any administrative appeal or in any Federal court.” Pet.

App. 9a (emphasis added). By its plain terms that waiver

applies to all enforcement actions, including citizen suits.

The Eleventh Circuit nonetheless refused to give that

unmistakable language its unambiguous breadth.

That error is consequential and should be corrected

in this case. At the very least, if the Court has any doubts

about the court of appeal’s ruling or the importance of the

question presented, it should call for the views of the

United States, which has unique insights into both issues.

The Eleventh Circuit’s Construction Of The Waiver

Language Is Wrong.

The Eleventh Circuit acknowledged that “[o]n its

face, the capacious language of the waiver would seem to

encompass citizen suits against violations of the permit.”

Pet. App. 10a. After all, the waiver applies to “‘any’”

enforcement proceeding in “‘any Federal court,’” id. 9a,

which obviously includes this case brought under the

Act’s private attorney general provision. As this Court

has repeatedly explained, “[r]ead naturally, the word

‘any’ has an expansive meaning, that is, ‘one or some

indiscriminately of whatever kind.’” United States v.

Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third

New International Dictionary 97 (1976)); see also, e.g., Ali

v. Fed. Bureau of Prisons, 552 U.S. 214, 220 (2008)

(“Congress’ use of ‘any’ to modify ‘other law enforcement

officer’ is most naturally read to mean law enforcement

officers of whatever kind.”). Thus, the “term ‘any’

ensures that the definition has a wide reach.” Boyle v.

United States, 556 U.S. 938, 944 (2009).

The Eleventh Circuit gave three reasons for reading

“any” to mean “some,” but none has any merit.

1. First, the court reasoned that because the waiver

was required in exchange for a permit, it should be read

to apply only to actions for “enforcement of the permit.”

Pet. App. 10a (emphasis in original). Perhaps the Corps

could have decided that the waiver should be qualified in

that way, but that limitation is nowhere to be found in the

waiver’s text. See, e.g., Gonzales, 520 U.S. at 5 (where the

drafters “did not add any language limiting the breadth

of that word,” a court is not free to give the term “any”

less breadth than its plain meaning requires).

In similar circumstances, this Court has rejected

attempts to read such avowedly unrestricted language as

containing implicit qualifications. See Dep’t of Hous. &

Urb. Dev. v. Rucker, 535 U.S. 125, 130-31 (2002)

(“Congress’ decision not to impose any qualification in the

statute, combined with its use of the term ‘any’ to modify

‘drug-related criminal activity,’ precludes any knowledge

requirement.”); Gonzales, 520 U.S. at 9 (acknowledging

dissent’s policy concerns with broad reading, but

responding that “the straightforward language of § 924(c)

leaves no room to speculate about congressional intent”);

Harrison v. PPG Indus., Inc., 446 U.S. 578, 592-93 (1980)

(rejecting policy argument in favor of narrow reading of

phrase “any other final action” on ground that this “is an

argument to be addressed to Congress, not to this Court”

where giving language its natural reading “is not wholly

irrational”); see also Gallardo By & Through Vassallo v.

Marstiller, 596 U.S. 420, 433-34 (2022) (rejecting reliance

on “possible unfairness” of broad reading of “any rights”

to “payment for medical care” because interpretation is

“dictated by the Medicaid Act’s text, not our sense of

fairness” (cleaned up)).

Indeed, this Court has relied on the breadth of the

word “any” to reach results that it has acknowledged

Congress may not have intended, noting that the “fact

that a statute can be applied in situations not expressly

anticipated by Congress does not demonstrate ambiguity.

It demonstrates breadth.” Massachusetts v. EPA, 549

U.S. 497, 528 (2007) (citation omitted).

Here, in contrast, there is nothing surprising about

the Corps’ requirement that applicants waive the right to

challenge the jurisdictional status of the waters under

review in “any” future proceeding, even if the proceeding

was not brought by the Corps to enforce a permit. The

work a permit allows will often make it substantially more

difficult, perhaps impossible, to determine the prior

jurisdictional status of the waters. This case provides a

good example. Suppose that after the permit were issued

and the wetland filled, the Corps discovered that

respondent had been illegally burying barrels of toxic

chemicals from its hotel in the wetland for years.

Deciding whether the wetland used to have a “continuous

surface connection” with the adjacent marsh and Dunbar

Creek at the time of the dumping, see Sackett, 598 U.S. at

670-71, would be exceedingly difficult once the wetland

had been destroyed and most evidence of its original

water flow lost.

The Eleventh Circuit nonetheless suggested that

“any . . . compliance or enforcement action” should be

read to mean some subset of compliance or enforcement

actions because waivers require a “voluntary, intentional

relinquishment” of a “known right.” See Pet. App. 10a11a (quotation marks omitted). But the best way to

ensure that a waiver is knowing and voluntary is to

interpret it according to its unambiguous meaning. Even

in contexts in which courts strain to give waivers narrow

constructions—such as waivers of sovereign immunity—

they will still give the waiver a broad reading when “the

words of a statute are unambiguous, as they are here.”

Sebelius v. Cloer, 569 U.S. 369, 381 (2013) (cleaned up);

see also, e.g., Dep’t of Agric. Rural Dev. Rural Hous.

Serv. v. Kirtz, 601 U.S. 42, 58 (2024) (“[I]t is error to grant

sovereign immunity based on inferences from legislative

history in the face of clear statutory direction waiving

that immunity.”).

2. The court also believed that two canons of

construction supported its reading.

First, the panel noted that the waiver arises from a

“preliminary jurisdictional determination,” which it

viewed as “focus[ing] on enforcement actions by the

Corps.” Pet. App. 11a. Invoking the principle that “a ‘text

must be construed as a whole,’” the court concluded that

this meant that “there is little reason to think that the

waiver binds [respondent] in citizen suits.” Ibid. (quoting

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

Interpretation Of Legal Texts § 24, at 167 (2012)). That

is incorrect.

The whole-text canon might be implicated if

petitioners’ reading rendered some other part of the text

surplusage or gave the same terms different meanings in

the same document. See Scalia & Garner, supra, § 24, at

167. But the Eleventh Circuit identified no such

consequence here. The only aspect of the statute as a

whole that the panel cited was the fact that the waiver

arises from a permit application, which it seemingly took

as an indication that the purpose of the waiver was to

relieve the Corps from having to prove jurisdiction in

actions to enforce the permit. Pet. App. 11a. But that

reasoning represents the kind of “abuse” of the canon of

which Justice Scalia warned. See Scalia & Garner, supra,

§ 24, at 167-68 (“It is not a proper use of the canon to say

that since the overall purpose of the statute is to achieve

x, any interpretation of the text that limits the achieving

of x must be disfavored.”). As discussed above, the

context the Eleventh Circuit cited might, at most, provide

a reason why the Corps could have chosen to write a

narrower waiver; it is no basis for departing from the

waiver’s clear text.15

The panel also invoked the associated-words, or

noscitur a sociis, cannon. Pet. App. 12 (citing Scalia &

Garner, supra, § 31, at 195). It observed that the waiver

extends to a list of forums, some of which are limited to

actions brought by the Corps (e.g., an “‘administrative

. . . action’” or “‘administrative appeal’”). Pet. App. 12a.

From this, the court reasoned that although the

remaining forums are not so limited (i.e., “‘judicial

compliance or enforcement action’” in “‘any Federal

court’”), they should nonetheless be given a restrictive

reading to match the narrower scope of the other

references. Ibid. This reasoning fails as well.

As Justice Scalia explained, in applying the

associated-words canon, courts must identify a “common

quality” shared by all the words. See Scalia & Garner,

supra, § 31, at 196. Moreover, the “common quality

suggested by a listing should be its most general

quality—the least common denominator, so to speak—

relevant to the context.” Ibid. This Court has therefore

repeatedly reversed lower courts for invoking the cannon

to cherry pick a meaning shared by only some of the

words in a list to narrow the otherwise ordinary meaning

of a remaining term. See, e.g., Schindler Elevator Corp.

v. United States ex rel. Kirk, 563 U.S. 401, 409 (2011);

Graham Cnty. Soil & Water Conservation Dist. v. United

States ex rel. Wilson, 559 U.S. 280, 287-88 (2010).

The panel’s premise that preliminary jurisdictional

determinations are focused on government enforcement actions is

also wrong. Indeed, preliminary jurisdictional determinations play

no role in enforcement actions at all because they are not binding on

the Corps or the landowner. See Hawkes, 578 U.S. at 595.

In this case, what the items in the list have in

common—their least common denominator—is that each

is a forum in which a jurisdictional challenge could be

made. That some of the forums are limited to government

enforcement actions is not a basis for giving the other

terms an unnaturally restricted meaning nowhere else

suggested in the text.

In the end, no canon of construction can justify

departing from the plain and utterly unambiguous

language of the waiver provision the Corps wrote. “Rules

of statutory construction are to be invoked as aids to the

ascertainment of the meaning or application of words

otherwise obscure or doubtful.” Russell Motor Car Co. v.

United States, 261 U.S. 514, 519 (1923). “They have no

place, as this court has many times held, except in the

domain of ambiguity.” Ibid.; see, e.g., United States v.

Stevens, 559 U.S. 460, 474 (2010) (associated-words canon

applies only to interpretation of an “ambiguous term” and

is not applicable where text “contains little ambiguity”);

Harrison, 446 U.S. at 588-89 (refusing to apply closely

related ejusdem generis canon to construe phrase “any

other final action” because the cannon, “while firmly

established, is only an instrumentality for ascertaining

the correct meaning of words when there is uncertainty”

(cleaned up)).

3. Finally, the court of appeals concluded that

“permits

based

preliminary

jurisdictional

determinations function like contracts between the Corps

and the permit holder” and therefore should be

enforceable only by a “party” to that contract, which

excludes private parties and states invoking the citizen

suit provision. Pet. App. 12a-13a (emphasis added). The

analogy is inapt.

To begin, those who apply for, and obtain, a

government permit are not parties to a contract with the

government.

Instead, a permit represents the

government’s exercise of regulatory authority to control

pollution, not a negotiated exchange of promises between

equal parties. Permit holders are participants in a

regulatory regime, with the consequences of their

decisions dictated by regulations and other legal

materials that are interpreted in accordance with the

usual rules for construing legal texts—hence, the

Eleventh Circuit’s reliance on cannons of statutory

construction in interpreting the waiver.

Nor are petitioners mere bystanders to this

supposed “contract.” Congress expressly elevated the

role of affected citizens to that of “private attorneys

general” when they act to enforce certain statutory

obligations. Middlesex Cnty. Sewerage Auth. v. Nat’l Sea

Clammers Ass’n, 453 U.S. 1, 16-17 (1981). Acting in that

capacity, they perform a role more akin to a government

enforcer than a beneficiary to a contract. For example,

the plaintiff may seek civil penalties payable to the U.S.

Treasury. See 33 U.S.C. § 1365(a) (cross-referencing id.

§ 1319(d)); Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 53 (1987). Conversely,

consistent with their quasi-government enforcement role,

plaintiffs in a citizen suit may not seek personal,

backward-looking relief, such as damages. See Gwaltney,

484 U.S. at 59, 61; Nat’l Sea Clammers, 453 U.S. at 18.

The statute further provides that a citizen suit is not

permitted if the government itself has already

“commenced and is diligently prosecuting” an

enforcement action, see 33 U.S.C. § 1365(b)(1)(B),

reflecting that “the citizen suit is meant to supplement

. . . governmental action,” Gwaltney, 484 U.S. at 59-60

(duplicate citizen and government suits barred

“presumably because governmental action has rendered”

the citizen suit “unnecessary”). And when a citizen suit is

filed, the plaintiff must serve a copy of the complaint on

the Attorney General and Administrator, 33 U.S.C.

§ 1365(c)(3), who then have the option of intervening in

the litigation. Likewise, citizen plaintiffs must give the

government 45 days’ notice before entry of any consent

judgment, ibid., allowing the government to submit any

objections it may have to the decree.

Because citizen suits by private individuals and

states serve the same fundamental function as a

government enforcement action, it is entirely appropriate

that the waiver the Corps required to facilitate

enforcement of the statute would apply to a citizen suit as

well. The basic problem the waiver addresses—that once

the permit work is done, proving jurisdiction will be made

far more difficult, and perhaps impossible—applies

whether the enforcement action is initiated by the U.S.

Attorney General, a private attorney general, or a state.

The government’s enforcement interests are thus

frustrated if the waiver is not enforced as written,

regardless of who initiated the case. When meritorious

private suits are stymied because the defendant has

destroyed jurisdictional evidence after promising not to

contest jurisdiction in “any Federal court,” the

government loses the opportunity for the benefits of

appropriate enforcement (including the possibility of civil

penalties, injunctions, and settlements) and is saddled

with the task of having to undertake the litigation itself or

let potentially significant violations escape a remedy if it

lacks the resources to take over the case.

II. The Question Presented Is Important And Should

Be Decided In This Case.

The Court should not delay correcting the Eleventh

Circuit’s wrong and harmful decision.

1. Although it is difficult to find public information

on the number of waivers each year, it appears to be in

the thousands. As discussed, a waiver arises every time a

landowner applies for a permit without first seeking an

approved jurisdictional determination.

The Corps

reports issuing “90,000 permits a year” and making

some “50,000 jurisdictional determinations.” 17 Of those

jurisdictional determinations, only a few thousand appear

to be approved jurisdictional determinations—by

petitioners’ count, there were fewer than 4,000 in 2025.18

Accordingly, from all appearances, the vast majority of

the tens of thousands of permits issued each year are

based on preliminary jurisdictional determinations and

subject to the waiver provision at issue in this case.

As discussed above, the decision below diminishes

the effectiveness of those waivers—and, consequently,

enforcement of the statute—in two important ways.

First, the Eleventh Circuit held that “the waiver applies

only to actions to enforce the permit authorization.” Pet.

App. 10a. By its plain terms, that holding applies to any

enforcement action, brought by private parties, a state, or

the government. Moreover, the reasons the Eleventh

Circuit gave for its holding—that the waiver arises in the

context of a permit application and implicates permittees’

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

https://www.usace.army.mil/Missions/Environmental/ (last visited

Jan. 25, 2026).

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

https://www.iwr.usace.army.mil/Missions/Value-to-theNation/Regulatory/Regulatory-Permits/ (last visited Jan. 25, 2026).

This is based on a review of the Corps’ online database of

approved jurisdictional determinations. See U.S. Army Corps of

Eng’rs, USACE Regulatory Permits Database, https://permits.ops.

usace.army.mil/orm-public# (last visited Jan. 25, 2026). The

database does not include preliminary jurisdictional determinations.

right to make a “know[ing]” waiver, see Pet. App. 10a11a—do not turn on the identity of the plaintiff.

Accordingly, unless the Court intervenes, even the Corps

is now precluded from relying on the waiver in any action

to enforce provisions of the Act (say, those prohibiting

pollution prior to obtaining the permit) even if the

permittee has destroyed some or all of the jurisdictional

evidence through the work authorized by the permit (e.g.,

by filling in a wetland).

Second, the court held that the waivers do not apply

in citizen suits. Pet. App. 11a. That holding will impair

private and state enforcement of the statute in multiple

ways. As just discussed, it will allow landowners to obtain

a permit without the Corps undertaking an official

approved jurisdictional determination, destroy much of

the evidence needed for anyone (including states or

private attorneys general) to prove jurisdiction, then

contest jurisdiction in any state or private enforcement

action alleging noncompliance with the permit or the

statute.

As this Court has noted, it “is often difficult to

determine whether a particular piece of property contains

waters of the United States.” Hawkes, 578 U.S. at 594.

Identification of wetlands requires a landowner or a

consultant to document the presence of hydric soils,

hydrophytic vegetation, and the hydrology of the area, in

accordance with technical procedures published by the

Corps. 19 Identification of former soils, vegetation, and

hydrology is even more difficult, and may be impossible,

when the defendant has destroyed much of the

See U.S. EPA, What is a Jurisdictional Delineation under

CWA

Section

404?,

https://www.epa.gov/cwa-404/whatjurisdictional-delineation-under-cwa-section-404 (last visited Jan. 25,

2026).

jurisdictional evidence. And it is expensive, typically

requiring plaintiffs to hire experts to conduct extensive

surveys and studies to establish the connection between

wetlands and other waterways. Cf. Hawkes, 578 U.S. at

594-95 (discussing cost and time required to obtain

permits).

The unfortunate effects of the Eleventh Circuit’s rule

are particularly acute in cases like this. Here, the size of

the lost wetland is modest, making it difficult for

environmental plaintiffs to raise the funds necessary to

bring enforcement actions if required to prove the

jurisdictional status the landowner agreed not to

challenge when applying for the permit. Yet the

cumulative effect of such small-scale developments has

substantially contributed to the loss of more than half the

nation’s original wetlands since European settlement.20

The Court should act immediately to remove this

barrier to fulsome enforcement of the Clean Water Act to

protect the nation’s wetlands. Further percolation is

unnecessary. The Question Presented is purely legal and

entirely straightforward. The harm of waiting far

outweighs any potential benefit.

III. If Necessary, The Court Should Call For The Views

Of The United States.

If the Court is unsure whether the Eleventh Circuit

misconstrued the Corps’ waiver provision, or whether any

misconstruction warrants correction, it should call for the

views of the United States.

As discussed, the decision below established an

important limitation on the Government’s ability to

enforce the Act (as well as on the ability of states to

effectively use the citizen suit provision). The court did

See Status and Trends, supra, pp. 17, 24.

so without hearing from the United States, which has not

participated in the litigation to this point. Moreover, the

United States is obviously well positioned to address the

intended meaning of the waiver provision. And it could

provide the Court useful insight into the practical

implications of the decision below, including for the

Corps’ own enforcement program.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,