Amicus Curiae Brief — The Glynn Environmental Coalition, Inc., et al., Petitioners v. Sea Island Acquisition, LLC
Supreme Court briefMar 4, 2026
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No. 25-908
In The
Supreme Court of the United States
THE GLYNN ENVIRONMENTAL COALITION, INC., ET AL.,
Petitioners,
v.
SEA ISLAND ACQUISITION, LLC,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
MOTION FOR LEAVE TO FILE BRIEF AND
BRIEF OF GEORGIA CONSERVATION
VOTERS, SCIENCE FOR GEORGIA, AND
OGEECHEE RIVERKEEPER AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
Ruthanne M. Deutsch
Counsel of Record
Hyland Hunt
DEUTSCH HUNT PLLC
300 New Jersey Ave. NW
Suite 300
Washington, DC 20001
(202) 868-6915
rdeutsch@deutschhunt.com
MOTION FOR LEAVE TO FILE
BRIEF OF AMICI CURIAE
As provided for under Supreme Court Rule 37,
amici curiae move for leave to file the following Brief
of Amici Curiae Georgia Conservation Voters, Science
for Georgia, and Ogeechee Riverkeeper in Support of
Petitioners Glynn Environmental Coalition, Inc.,
Center for a Sustainable Coast, Inc., and Jane Fraser.
Counsel of record for all parties received notice of
amici’s intent to file their brief on February 25, 2026—
seven days before the filing deadline. Petitioners
consented to the filing of this brief. Respondent Sea
Island Acquisition, LLC, opposes the filing on notice
grounds, but will not respond to this motion. Amici
acknowledge that they did not provide notice of their
intent to file an amici curiae brief at least 10 days
before the filing deadline as required under Rule 37.2.
Good cause exists to allow amici to file their brief
notwithstanding the truncated notice period afforded
to the parties. The original counsel for amici curiae
were preparing for a trial scheduled to begin on
March 9, 2026, and lost sight of Rule 37.2’s
requirement in the press of business. They provided
notice as soon as they realized their mistake, on
February 25, 2026, and then withdrew from this
representation. Undersigned counsel agreed to
represent amici pro bono only a few days before filing,
so as to ensure their important perspectives on this
case could be brought to the Court.
There is no possibility of prejudice, as Respondent
has elected to waive a response. If the Court calls for
a response, it will reset the deadline for amicus briefs
(1)
2
and Respondent will have had more than the 10-days
notice required by the rules. In all events, if the Court
calls for a response, amici curiae could cure any defect
by refiling the brief on the new deadline.
Amici respectfully submit that if Respondent did
suffer any prejudice from a three-day delay in
receiving notice, it is outweighed by the interests in
providing the Court with amici’s unique perspectives
on the critical issues presented in the pending
Petition. As described more completely in their brief,
amici are Georgia-based environmental organizations
with a keen understanding of the crucial role of citizen
suits in Clean Water Act enforcement and the
immense and unfair burden foisted upon would-be
private attorneys general by the Eleventh Circuit’s
erroneous decision.
For these reasons, amici respectfully submit this
motion for leave to file the attached Brief of Amici
Curiae Georgia Conservation Voters, Science for
Georgia, and Ogeechee Riverkeeper in Support of
Petitioners.
Respectfully submitted,
Ruthanne M. Deutsch
Counsel of Record
Hyland Hunt
Deutsch Hunt PLLC
300 New Jersey Ave. NW
Suite 300
Washinton, DC 20001
(202) 868-6915
rdeutsch@deutschhunt.com
No. 25-908
In The
Supreme Court of the United States
THE GLYNN ENVIRONMENTAL COALITION, INC., ET AL.,
Petitioners,
v.
SEA ISLAND ACQUISITION, LLC,
Respondent.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
BRIEF OF GEORGIA CONSERVATION
VOTERS, SCIENCE FOR GEORGIA, AND
OGEECHEE RIVERKEEPER AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
Ruthanne M. Deutsch
Counsel of Record
Hyland Hunt
DEUTSCH HUNT PLLC
300 New Jersey Ave. NW
Suite 300
Washington, DC 20001
(202) 868-6915
rdeutsch@deutschhunt.com
TABLE OF CONTENTS
STATEMENT OF INTEREST ................................... 1
SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 4
I.
The Eleventh Circuit’s Decision Frustrates
the Critical Role of Citizen Suits in Clean
Water Act Enforcement. ...................................... 4
A. Citizen Suits Serve as a Supplementary
Enforcement Mechanism Critical to
Ensuring Compliance with the Text and
Statutory Purpose of the Clean Water
Act. ................................................................ 4
B. Private Citizens Are Uniquely Positioned
to Enforce the Clean Water Act Given
Their
Proximity
to
and
Lived
Experiences with Violations of the Act........ 7
C. Citizen Suit Enforcement of the Clean
Water Act Has Led to Important Strides
in Environmental Jurisprudence and the
Regulation
of
Environmentally
Destructive Practices. ................................ 10
D. The
Eleventh
Circuit’s
Decision
Jeopardizes the Continued Vitality of
this Private Enforcement Mechanism. ...... 13
II. Requiring Citizens to Prove Wetland
Jurisdiction Under the Clean Water Act Is
Impracticable and Wastes Litigant and
Judicial Resources. ............................................ 14
(i)
ii
III. The Eleventh Circuit’s Decision Transforms a
Jurisdictional
Waiver,
on
Which
a
Preliminary Jurisdictional Determination Is
Conditioned, into a Hollow Formality. ............. 18
CONCLUSION ......................................................... 20
iii
TABLE OF AUTHORITIES
Cases
Concerned Area Residents for the Env’t v. Southview
Farm,
34 F.3d 114 (2d Cir. 1994) ............................... 11, 12
Deschutes River All. v. Portland Gen. Elec. Co.,
249 F. Supp. 3d 1182 (D. Or. 2017) ........................ 7
Friends of the Earth v. Consol. Rail Corp.,
768 F.2d 57 (2d Cir. 1985) ...................................... 5
Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc.,
890 F. Supp. 470 (D.S.C. 1995) .............................. 5
Georgia v. City of East Ridge, Tennessee,
949 F. Supp. 1571 (N.D. Ga. 1996) ................... 9, 10
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc.,
484 U.S. 49 (1987) .................................................. 6
Nat’l Ass’n of Home Builders v. EPA,
786 F.3d 34 (D.C. Cir. 2015) ................................. 13
Okanogan Highlands All. v. Crown Res. Corp.,
544 F. Supp. 3d 1092 (E.D. Wash. 2021) ............. 10
The Piney Run Pres. Ass’n v. Cnty. Comm’rs of
Carroll Cnty., Md.,
523 F.3d 453 (4th Cir. 2008) ...................................... 6
Rapanos v. United States,
547 U.S. 715 (2006) ........................................ 14, 15
iv
Sackett v. EPA,
598 U.S. 651 (2023) .......................................... 3, 15
San Antonio Bay Estuarine Waterkeeper v. Formosa
Plastics Corp, Texas,
No. 6:17-CV-0047, 2019 WL 2716544
(S.D. Tex. June 27, 2019) ................................... 8, 9
852 F. App’x 816 (5th Cir. 2021) ............................. 9
Sierra Club v. Hamilton Cnty. Bd. of Cnty. Comm’rs,
504 F.3d 634 (6th Cir. 2007) .................................. 6
StarLink Logistics, Inc. v. ACC, LLC,
101 F.4th 431 (6th Cir. 2024) ................................. 6
U.S. Dep’t of Energy v. Ohio,
503 U.S. 607 (1992) ................................................ 7
Weiler v. Chatham Forest Prods.,
392 F.3d 532 (2d Cir. 2004) .................................... 6
Wilder v. Thomas,
854 F.2d 605 (2d Cir. 1988) .................................... 7
Statutes
33 U.S.C.
§ 1251 .................................................................. 4, 5
§ 1311 ...................................................................... 5
§ 1344 ...................................................................... 5
§ 1362 ............................................................ 4, 7, 11
§ 1365 .......................................................... 4, 5, 7, 8
v
Regulations
33 C.F.R. § 331.2....................................................... 13
40 C.F.R.
§ 122.23 ................................................................. 11
§ 122.42 ................................................................ 11
NPDES Permit Regulation and Effluent Limitation
Guidelines and Standards for CAFOs,
66 Fed. Reg. 2960 (Jan. 12, 2001) ........................ 12
NPDES Permit Regulation and Effluent Limitation
Guidelines and Standards for CAFOs,
68 Fed. Reg. 7176 (Feb. 12, 2003) ......................... 11
Revised Definition of “Waters of the United States,”
88 Fed. Reg. 3004 (Jan. 18, 2023) ........................ 15
Other Authorities
Animal Feeding Operations (AFOs), U.S. Envtl. Prot.
Agency (last visited Mar. 3, 2026) ....................... 11
Karl S. Coplan, Citizen Litigants Citizen Regulators:
Four Cases Where Citizen Suits Drove Development
of Clean Water Law, 25 Colo. Nat. Res., Energy &
Env’t L. Rev. 61 (2014) ..................................... 5, 12
First Am. Compl., Utah v. Envtl. Restoration, LLC,
No. 2:17-cv-00866-TS (D. Utah Jan. 4, 2018) ...... 10
Forest Stewards Guild & Flint Riverkeeper,
Restoring Georgia’s Wetland Forests
(Dec. 2021) ............................................................... 2
vi
Ga. Dep’t of Nat. Res., Env’t Prot. Div., Coastal
Stormwater Supplement to the Georgia Stormwater
Management Manual (1st ed. Apr. 2009) ............... 1
Oliver A. Houck & Michael Rolland, Federalism in
Wetlands Regulation: A Consideration of Delegation
of Clean Water Act Section 404 and Related
Programs to the States,
54 Md. L. Rev. 1242 (1995) ..................................... 6
Elise Pohl & Sang-Ryong Lee, Local and Global
Public Health and Emissions from Concentrated
Animal Feeding Operations in the USA: A Scoping
Review, 21 Int’l J. Env’t Res. & Pub. Health 916
(2024) ..................................................................... 11
Regulatory: Permits, U.S. Army Corps of Eng’rs (last
visited Mar. 3, 2026) ............................................. 19
S. Rep. No. 92-414 (1971), reprinted in 1972
U.S.C.C.A.N. 3668 .......................................... 3, 5, 8
S. Rep. No. 99-50 (1985) ............................................. 6
U.S. Army Corps of Eng’rs, Regulatory Guidance
Letter No. 08–02, Jurisdictional Determinations
(June 26, 2008) ..................................................... 13
U.S. Geological Survey, National Water Summary on
Wetland Resources,
Water Supply Paper 2425 (1996) ............................ 1
STATEMENT OF INTEREST1
Amici are Georgia Conservation Voters, Science
for Georgia, and Ogeechee Riverkeeper.2
Through their work, amici support wetland
protection efforts by equipping community members
and leaders with the knowledge needed to understand
and respond to the impacts of wetland loss. Georgia is
home to more than 7.7 million acres of wetlands—
about one-fifth of the state’s surface area.3 Wetlands
provide invaluable ecological and economic benefits to
Georgians—including flood control, sustainable
commercial harvesting, and recreation.4 Georgia
wetlands contribute not only to the ecological and
economic diversity of Georgia but provide a natural
resource of profound beauty that both locals and
tourists can and do appreciate. Despite their value to
1 As called for under Supreme Court Rule 37.6, amici curiae
state that no counsel for any party authored this brief in whole
or in part and that no entity or person, aside from amici curiae,
their members, and their counsel, made any monetary
contribution toward the preparation or submission of this brief.
Notice was provided to the parties seven days before the filing of
this brief and its accompanying Motion for Leave to File.
2 More information about the missions and activities of amici
can be found at their respective websites: gcvoters.org (Georgia
Conservation Voters); https://scienceforgeorgia.org/ (Science for
Georgia); and https://www.ogeecheeriverkeeper.org/ (Ogeechee
Riverkeeper).
3 U.S. Geological Survey, National Water Summary on Wetland
Resources, Water Supply Paper 2425,
https://pubs.usgs.gov/wsp/2425/report.pdf.
at
8
(1996),
4 Ga. Dep’t of Nat. Res., Env’t Prot. Div., Coastal Stormwater
Supplement to the Georgia Stormwater Management Manual, at
2-2 to 2-3, 2-5 to 2-6 (1st ed. Apr. 2009), https://bitly.cx/DFpaq.
(1)
2
the state, Georgia’s wetlands have historically been,
and continue to be, highly vulnerable. Many of the
state’s watersheds have experienced 25- to 30-percent
losses of original wetland acreage, and approximately
50 percent of the remaining wetlands are classified as
being only in fair to poor condition.5
Amici submit this brief in support of the Petition
because the issue it presents—whether a Clean Water
Act permittee’s waiver of “any challenge” to the
jurisdictional status of a wetland “in any federal court”
does not extend to citizen suits and is limited to
government suits to enforce permit conditions—is
significant to the missions and work of amici. The
Eleventh Circuit’s limitation on CWA citizen suits is
one that will directly impact Georgia communities and
beyond. By eroding CWA citizen suit enforcement, the
Eleventh Circuit’s decision undermines the clearly
stated objective of the CWA—to protect the waters of
the United States and our nation’s ecosystems. As
organizations that empower Georgians to advocate for
positive environmental change in their communities,
amici have a strong interest in seeing the decision of
the Eleventh Circuit reviewed and reversed.
5 Forest Stewards Guild & Flint Riverkeeper, Restoring
Georgia’s
Wetland
Forests,
at
4
(Dec.
2021),
https://bitly.cx/pRQUx.
3
SUMMARY OF ARGUMENT
Citizen suits play a vital role in ensuring
compliance with the CWA, permitting citizens to act
as private attorneys general and to prosecute
violations of the Act. Citizen suits both provide an
avenue for “vigorous enforcement” of the CWA where
the federal government “fail[s] to exercise [its]
enforcement responsibility,” S. Rep. No. 92-414, at 64
(1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3730,
and empower citizens to remedy how CWA violations
affect their lives. The Eleventh Circuit’s decision
endangers the continued vitality of this critical
enforcement mechanism.
In requiring citizens to prove the “continuous
surface connection” necessary to establish wetland
jurisdiction under Sackett v. EPA, 598 U.S. 651, 67879 (2023), when bringing CWA enforcement actions
against landowners, the Eleventh Circuit effectively
precluded enforcement of jurisdictional waivers
provided in conjunction with expedited permitting.
Given the practical difficulties of proving wetland
jurisdiction after permit-related activity has occurred
on the wetland, the Eleventh Circuit erected an
unnecessary—and in some cases, insurmountable—
barrier to private and state enforcement of the CWA.
What’s more, the Eleventh Circuit created a potential
enforcement gap that is readily susceptible to
exploitation. If the decision below is left standing,
landowners in the Eleventh Circuit can reap the
benefits of expedited permitting but later escape the
related regulatory obligations when citizens, states, or
anyone other than the Army Corps of Engineers seek
to enforce them.
4
Amici support Petitioners in full. This Court
should grant the Petition and reverse the decision
below to confirm that a jurisdictional waiver precludes
“any challenge” by a landowner to the jurisdictional
status of a wetland “in any federal court”—including
in an enforcement action brought by a citizen
pursuant to the CWA’s citizen suit provision.
ARGUMENT
I.
The Eleventh Circuit’s Decision Frustrates
the Critical Role of Citizen Suits in Clean
Water Act Enforcement.
The CWA aims “to restore and maintain the
chemical, physical, and biological integrity of the
Nation’s waters.” 33 U.S.C. § 1251(a). Achieving this
goal is dependent on private enforcement of the Act
through citizen suits. By refusing to enforce
jurisdictional waivers in the context of citizen suits,
the Eleventh Circuit’s decision significantly impedes
the fundamental objectives of the CWA.
A. Citizen Suits Serve as a Supplementary
Enforcement Mechanism Critical to
Ensuring Compliance with the Text and
Statutory Purpose of the Clean Water
Act.
The CWA authorizes any citizen, state, or local
agency to commence a civil action against any person
alleged to be in violation of “an effluent standard or
limitation.” See 33 U.S.C. §§ 1362(5), 1365(a)(1), (g).
As relevant here, an effluent standard or limitation
includes any permit regarding the discharge of
5
dredged or fill material. See id. §§ 1365(f), 1311(a),
1344.
Congress created this citizen suit provision in
recognition that federal governmental enforcement
was not enough, and that private and state
enforcement would be essential in achieving the
CWA’s statutory purpose. See 33 U.S.C. § 1251(e)
(“Public participation in the . . . enforcement of any
regulation, standard, effluent limitation, plan, or
program . . . shall be provided for . . . [and]
encouraged . . . by the Administrator and the
States.”). In so doing, Congress intended that citizens
be treated “as welcomed participants in the
vindication of environmental interests.” Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 890 F.
Supp. 470, 487 (D.S.C. 1995) (quoting Friends of the
Earth v. Consol. Rail Corp., 768 F.2d 57, 63 (2d Cir.
1985)). As pioneered by the Clean Air Act, citizen suit
provisions brought a “new constituency to the
regulatory bargaining table,” empowering states and
private individuals “to litigate personal interests in
environmental values” and advocate for the “full
enforcement of environmental standards.” Karl S.
Coplan, Citizen Litigants Citizen Regulators: Four
Cases Where Citizen Suits Drove Development of Clean
Water Law, 25 Colo. Nat. Res., Energy & Env’t L. Rev.
61, 63–64 (2014).
Citizen suits create an avenue for “vigorous
enforcement” of the CWA “if the Federal, State, and
local agencies fail to exercise their enforcement
responsibility.” S. Rep. No. 92-414, at 64, reprinted in
1972 U.S.C.C.A.N. at 3730. While “[t]he primary
responsibility for enforcement [of the CWA] lies with
6
the government,” see StarLink Logistics, Inc. v. ACC,
LLC, 101 F.4th 431, 447 (6th Cir. 2024), significant
costs and administrative burdens often hinder
government enforcement of the CWA, see, e.g., Oliver
A. Houck & Michael Rolland, Federalism in Wetlands
Regulation: A Consideration of Delegation of Clean
Water Act Section 404 and Related Programs to the
States, 54 Md. L. Rev. 1242, 1280–81 (1995)
(describing funding challenges related to Section 404
program assumption efforts by two states). Citizen
suits can thus “serve as a check to ensure the state and
federal government are diligent in prosecuting [CWA]
violations,” The Piney Run Pres. Ass’n v. Cnty.
Comm’rs of Carroll Cnty., Md., 523 F.3d 453, 456 (4th
Cir. 2008) (quoting Sierra Club v. Hamilton Cnty. Bd.
of Cnty. Comm’rs, 504 F.3d 634, 637 (6th Cir. 2007)),
allowing “citizens ‘to abate pollution when the
government cannot or will not command compliance,’”
id. (quoting Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987)).
In this way, the citizen suit provision establishes
a collaborative partnership between private citizens
and the government in protecting the nation’s
waters—encouraging the government to enforce
environmental
regulations
and
providing
a
supplementary enforcement mechanism where or
when the government fails to do so, “both spur[ring]
and supplement[ing] government enforcement
actions.” S. Rep. No. 99-50, at 28 (1985); accord
Weiler v. Chatham Forest Prods., 392 F.3d 532, 536
(2d Cir. 2004) (“Citizen suit provisions were designed
not only to ‘motivate government agencies’ to take
action . . . , but also to make citizens partners in the
7
enforcement of the Act’s provisions.” (quoting Wilder
v. Thomas, 854 F.2d 605, 613 (2d Cir. 1988))).
Crucially, Congress did not limit this enforcement
mechanism to individual members of the public.
Rather, “citizen” is defined to include individual
members of the public, nonprofit and other
nongovernmental organizations, and, as mentioned,
municipalities and states. 33 U.S.C. §§ 1362(5),
1365(g); see also U.S. Dep’t of Energy v. Ohio, 503 U.S.
607, 616 & n.9 (1992) (“A state is a ‘citizen’ under the
CWA . . . and is thus entitled to sue under
[§ 1365(a)].”); Deschutes River All. v. Portland Gen.
Elec. Co., 249 F. Supp. 3d 1182, 1191 (D. Or. 2017)
(“[S]tates do have authority to enforce any violation of
an effluent standard or limitation pursuant to the
citizen suit provision.”); cf. 33 U.S.C. § 1365(h)
(permitting state governor to commence civil action
under citizen suit provision where federal government
fails to enforce violation occurring in another state
that is causing an adverse effect on the public health
or welfare, or causing violation of water quality
requirement in the governor’s state).
B. Private
Citizens
Are
Uniquely
Positioned to Enforce the Clean Water
Act Given Their Proximity to and Lived
Experiences with Violations of the Act.
Private citizens are well-suited for enforcement
because they are often better positioned to identify,
and are directly impacted by, violations of the CWA.
By sharing their lived experiences, private citizens
give depth and humanity to CWA enforcement—
providing unique experiences and perspectives as
8
actual participants in and users of affected areas—
with access to information not necessarily captured in
public data or routinely presented to government
regulators. Congress has recognized the importance of
providing the public with “a genuine opportunity to
speak on the issue of protection of its waters,” noting
that “[t]he scrutiny of the public . . . is extremely
important in insuring expeditious implementation of
the [CWA].” S. Rep. No. 92-414, at 72, reprinted in
1972 U.S.C.C.A.N. at 3738. But under the Eleventh
Circuit’s ruling, the public has no opportunity to
speak. Not in the expedited permit process and—if the
jurisdictional waiver is so broadly applied—not in an
enforcement action under § 1365(a). Quick approval
on the front end with notice-and-comment avoided
becomes non-reviewable after-the-fact, and critical
voices are never given an opportunity to “speak on the
issue.”
Essential voices and critical evidence will be lost.
Consider, for example, San Antonio Bay Estuarine
Waterkeeper v. Formosa Plastics Corp, Texas, No.
6:17-CV-0047, 2019 WL 2716544 (S.D. Tex. June 27,
2019).
There,
a
community-based
nonprofit
organization sought declaratory relief against a
plastic manufacturing company, claiming it had
violated, and continued to violate, its National
Pollutant Discharge Elimination System (“NPDES”)
permit by illegally discharging plastic pollutants into
nearby water sources. Id. at *2. In prosecuting their
claim, the plaintiffs introduced nearly 2,500 samples
of pollutants they and their witnesses had collected
and stored in zip-lock bags, as well as photographs and
videos taken by the plaintiffs. Id. at *4. Further,
plaintiffs offered testimony of multiple community
9
members, including a named plaintiff, who provided
detailed accounts of their experiences with the
manufacturers’ plastic pollutants and the impact on
local aquatic life in the area. Id. at *4, *10. This
evidence was critical in establishing the plaintiffs’
claims, and their entitlement to the requested
declaratory relief, because the NPDES permit
prohibited “discharge of floating solids or visible foam
in other than trace amounts.” Id. at *3 (quoting
defendant’s permit). In light of the plaintiffs’ copious
evidence, the court found in favor of the plaintiffs and
granted their requested declaratory judgment. Id. at
*9–10.6
Similarly, in Georgia v. City of East Ridge,
Tennessee, 949 F. Supp. 1571 (N.D. Ga. 1996), the
plaintiffs—a group of citizens, the state, and several
state agencies—filed a citizen suit against a
municipality, alleging that a sewer owned and
maintained by the municipality had repeatedly
discharged raw sewage without a permit in violation
of the CWA. Id. at 1573–74. The citizens provided
credible eyewitness testimony and introduced into
evidence dated photographs and videos of the raw
sewage and other materials flowing from the sewer.
Id. at 1574, 1576–77. Based on this evidence, the
district court held that the plaintiffs established
6 This ruling was reversed and remanded on other grounds by
San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics
Corp. Texas, 852 F. App’x 816, 820 (5th Cir. 2021), where the
Fifth Circuit disagreed with the district court’s interpretation of
the parties’ consent decree. The Fifth Circuit’s decision, however,
does not call into question the evidentiary findings of the district
court or the significance of the plaintiffs’ extensive evidence.
10
multiple CWA violations by the municipality. Id. at
1579 & n.7.
These cases are but two of countless illustrations
of the irreplaceable role citizens’ stories play in
environmental litigation. In addition to the
evidentiary benefits, citizen involvement in CWA
enforcement empowers those citizens to share their
lived experiences in an actionable way.
Here, Petitioner Jane Fraser has lived and
worked near the now-destroyed wetland for over three
decades and cares about it deeply. As such, she brings
a unique, lived perspective to this matter and should
be given an opportunity to tell her story, and provide
a court with evidence of how Respondent’s actions
have contravened the Clean Water Act.
C. Citizen Suit Enforcement of the Clean
Water Act Has Led to Important Strides
in Environmental Jurisprudence and
the Regulation of Environmentally
Destructive Practices.
Citizen suits play a significant role in bringing
unregulated, environmentally harmful practices to
the forefront of the regulatory space. This type of
litigation includes states pursuing CWA citizen suits.
See Georgia, 949 F. Supp. at 1579 (holding that
Georgia and intervenor plaintiffs satisfied elements
required to establish CWA violation); see also, e.g.,
Okanogan Highlands All. v. Crown Res. Corp., 544 F.
Supp. 3d 1092, 1094 (E.D. Wash. 2021) (Washington
as § 1365 citizen-suit plaintiff); First Am. Compl.,
Utah v. Envtl. Restoration, LLC, No. 2:17-cv-00866-TS
11
(D. Utah Jan. 4, 2018), ECF No. 93 (Utah as § 1365
citizen-suit plaintiff).
Consider the example of Concentrated Animal
Feeding Operations (“CAFOs”)—agricultural facilities
where animals destined for slaughterhouses are kept
and fed until they reach market weight. See Animal
Feeding Operations (AFOs), U.S. Envtl. Prot. Agency,
https://tinyurl.com/bdcsbbut (last visited Mar. 3,
2026). CAFOs impact water quality through the
production and discharge of animal waste.7 Yet many
CAFOs largely evaded regulation by taking advantage
of certain regulatory exemptions—including the
agricultural stormwater discharge exemption, which
exempted certain discharges from regulation. See 33
U.S.C. § 1362(14); 40 C.F.R. §§ 122.23(e), 122.42(e).
That changed following Concerned Area Residents
for the Environment v. Southview Farm, 34 F.3d 114
(2d Cir. 1994) (“CARE”). There, the plaintiffs filed a
citizen suit against a dairy farm for water pollution
resulting from the farm’s extensive manure
operations. Id. at 115–16. The district court granted
judgment as a matter of law in the dairy farm’s favor,
7 EPA previously estimated that confined livestock and poultry
generates approximately 500 million tons of manure each year—
more than three times the amount of human sanitary waste
generated annually in the country. See NPDES Permit
Regulation and Effluent Limitation Guidelines and Standards
for CAFOs, 68 Fed. Reg. 7176, 7180 (Feb. 12, 2003); see also Elise
Pohl & Sang-Ryong Lee, Local and Global Public Health and
Emissions from Concentrated Animal Feeding Operations in the
USA: A Scoping Review, 21 Int’l J. Env’t Res. & Pub. Health 916
(2024), https://doi.org/10.3390/ijerph21070916 (“With more than
21,000 CAFOs in the USA, each can produce up to 1.6 million
tons of waste annually.” (footnotes omitted)).
12
in part based on the court’s belief that no reasonable
juror could find that certain discharges were not
exempted as agricultural stormwater discharges given
that crops were grown on fields adjacent to the dairy
cows. Id. at 122-23. The Second Circuit reversed and,
in so doing, narrowed the scope of the CAFO
agricultural stormwater discharge exemption. In its
view, crops must be grown in the same area in which
livestock is confined to exempt a facility from
regulation under the CWA. Id. at 123.
The NPDES program was subsequently expanded
as a direct result of CARE. See Coplan, supra, at 99 &
nn.134-36. In proposing revisions to the CAFO
regulations, the EPA expressly relied on CARE in
defining (and limiting) the scope of the agricultural
storm water discharge exemption. See id. at 99 &
n.134 (citing NPDES Permit Regulation and Effluent
Limitation Guidelines and Standards for CAFOs,
66 Fed. Reg. 2960, 3029 (Jan. 12, 2001)). Absent
citizen suit enforcement, the EPA presumably would
have continued adhering to its vague regulations and
pattern of inaction—both of which failed to serve the
CWA’s overarching regulatory purpose. This case,
among others, is representative of the substantial
body of environmental litigation that has driven
meaningful and measurable environmental change,
and serves as a reminder of the critical role citizen
suits play in developing regulatory agendas to further
CWA objectives.
13
D. The
Eleventh
Circuit’s
Decision
Jeopardizes the Continued Vitality of
this Private Enforcement Mechanism.
Citizen suits are, and should continue to be, a
constant in the changing tide of government
enforcement efforts under the CWA. But the Eleventh
Circuit’s decision risks eroding what remains of that
essential private enforcement tool.
As relevant here, a preliminary jurisdictional
determination (“PJD”) is a “written indication[] that
there may be waters of the United States on a parcel.”
33 C.F.R. § 331.2 (emphasis added). A PJD is typically
issued at the request of a landowner who wishes “to
voluntarily waive or set aside questions regarding
CWA[] jurisdiction over a particular site, usually in
the interest of allowing the landowner . . . to move
ahead expeditiously to obtain a Corps permit
authorization.” U.S. Army Corps of Eng’rs, Regulatory
Guidance
Letter
No.
08–02,
Jurisdictional
Determinations
3
(June
26,
2008),
https://tinyurl.com/y8ye7rey; see also Nat’l Ass’n of
Home Builders v. EPA, 786 F.3d 34, 37 (D.C. Cir.
2015). The PJD provides a “shortcut into the
permitting process,” allowing a landowner who is
willing to accept a PJD to proceed directly to
permitting without the delay and expense of a
definitive jurisdictional ruling. Nat’l Ass’n of Home
Builders, 786 F.3d at 37.
But this shortcut is not without a price. The U.S.
Army Corps of Engineers conditions the PJD-based
permit on the landowner’s agreement to a
jurisdictional waiver. See, e.g., Pet. App. 9a. The
jurisdictional waiver ensures that the landowner,
14
having taken a shortcut in the permitting process,
does not later deny that the permit-based activities
were subject to federal regulation in the first place.
This jurisdictional waiver is broad and “[o]n its
face . . . seem[s] to encompass citizen suits against
violations of the permit.” Pet. App. 10a. Yet the
Eleventh Circuit refused to enforce the waiver
accordingly. In so doing, the Eleventh Circuit erected
a significant barrier to vital citizen suit enforcement
actions, frustrated the fundamental objective of the
CWA, and set a harmful precedent for the future of
environmental litigation.
II. Requiring Citizens to Prove Wetland
Jurisdiction Under the Clean Water Act Is
Impracticable and Wastes Litigant and
Judicial Resources.
Requiring citizens to prove wetland jurisdiction
after permit-related activity has occurred—rather
than enforcing jurisdictional waivers as written—is
impracticable, inefficient, and technically and
financially burdensome.
The CWA prohibits the discharge of dredge or fill
materials into “navigable waters” without a permit,
but what constitutes “navigable waters” has been the
subject of much debate. In Rapanos v. United States,
547 U.S. 715 (2006), a plurality of this Court held that
“waters of the United States,” as that phrase is used
in the CWA, “includes only those relatively
permanent, standing or continuously flowing bodies of
water,” and that a wetland is covered by the CWA only
if it has “a continuous surface connection to bodies
that are ‘waters of the United States’ in their own
15
right, so that there is no clear demarcation between
‘waters’ and wetlands.” Id. at 739, 742. Justice
Kennedy, by contrast, concluded that “navigable
waters” include waters or wetlands that “possess a
‘significant nexus’ to waters that are or were navigable
in fact or that could reasonably be made so.” Id. at 759
(Kennedy, J., concurring in the judgment). Under this
test, wetlands are covered by the CWA “if the
wetlands, either alone or in combination with
similarly situated lands in the region, significantly
affect the chemical, physical, and biological integrity
of other covered waters more readily understood as
‘navigable.’” Id. at 780.
Following Rapanos, federal agencies elected to
apply the “significant nexus” test, which they deemed
“consistent with the statutory text and legislative
history” of the CWA. See, e.g., Revised Definition of
“Waters of the United States,” 88 Fed. Reg. 3004,
3006, 3143 (Jan. 18, 2023).
But in Sackett, this Court conclusively held that
the CWA extends to only those wetlands that are “as
a practical matter indistinguishable from waters of
the United States.” 598 U.S. at 678 (quoting Rapanos,
547 at 755 (plurailty opinion)). This requires the party
asserting jurisdiction over adjacent wetlands to
establish that (1) the adjacent body of water
constitutes “waters of the United States,” i.e., a
relatively permanent body of water connected to
traditional interstate navigable waters; and (2) “the
wetland has a continuous surface connection with that
water, making it difficult to determine where the
‘water’ ends and the ‘wetland’ begins.” Id. at 678–79
(quoting Rapanos, 547 U.S. at 742 (plurality opinion)).
16
This inquiry is technically demanding, often
requiring affidavits, reports, and testimony from
hydrological experts and submission and analyses of
historical documentation, including photographs,
topographical and hydrological maps, and surveys.
This burden is difficult enough when the wetland
exists. It becomes nearly impossible to satisfy where,
as here, permit-related activity has already occurred
such that the wetland no longer exists at all.
This case is illustrative. Petitioners alleged that
the subject wetland was within the same basin as
Dunbar Creek, a water of the United States, and that
the creek was downstream of the wetland. Pet. App.
6a-7a. Petitioners also submitted an expert affidavit
explaining that the wetland was connected to a nearby
salt marsh via culverts and pipes, and that the salt
marsh was adjacent to and directly connected by
surface and ground water to the creek. Id. at 17a-18a.
The expert affidavit further explained that, before the
permit-related activity on the wetland, the wetland
and creek were connected by tidal exchange, through
which the wetland supplied nutrients to the salt
marsh and to the creek. Id. at 18a. The expert affidavit
also explained the connection between the wetland
and creek following Sea Island’s permit-related
activity. Id.
Because the wetland has been filled in and
covered with sod, excess unabsorbed chemicals from
fertilizer are incorporated into both surface runoff and
ground water each time it rains. Pet. App. 17a. The
contaminated water then enters the salt marsh. And
because the salt marsh is tidal, the contaminated
17
water flows into the creek each time tidal flooding
occurs. Id. at 17a-18a.
Despite this detailed proffer, the Eleventh Circuit
deemed the expert affidavit insufficient to permit the
inference that there was a “continuous surface
connection” between the wetland and the creek. Pet.
App. 21a. If detailed expert analysis of the
hydrological connections between an extant wetland
and other bodies of water is insufficient, what hope do
citizen-plaintiffs have when the wetland has been
filled and sodded in violation of a nationwide permit?
The evidence that once might have established the
requisite continuous surface connection has been
destroyed by the very conduct the citizen-plaintiffs
seek to remedy—i.e., the filling of the wetland. And
while it may be theoretically possible to prove this
jurisdictional connection at the pleading stage with
historical documentation and expert analysis in some
cases, requiring private citizens to do so in every case
will be exceptionally expensive—and, realistically,
quixotic—at the outset of the case before the parties
have undertaken any discovery.
These burdens are precisely why the Corps
requires jurisdictional waivers in connection with its
expedited permitting process in the first place. And
these burdens apply equally—if not more forcefully—
where the enforcement action is initiated by an
individual member of the public, a nonprofit
organization, a state, or another interested person.
18
III. The Eleventh Circuit’s Decision Transforms
a Jurisdictional Waiver, on Which a
Preliminary Jurisdictional Determination
Is Conditioned, into a Hollow Formality.
The Eleventh Circuit’s decision turns the
carefully
crafted
regulatory
framework
for
preliminary jurisdictional determinationss on its
head: it allows a landowner to reap the benefits of
expedited permitting, and later escape the related
regulatory obligations when citizens—whether
individual members of the public, nonprofit
organizations, states, or other interested persons—
seek to enforce them. And because the CWA depends
heavily on enforcement by citizen suit given the
federal government’s limited resources and the
difficulty of detecting violations on private land, the
Eleventh Circuit’s decision, if allowed to stand, will
create a significant gap in CWA enforcement that will
create perverse incentives for landowners to seek
expedited permits where jurisdictional waivers are
but an empty promise.
More specifically, under the Eleventh Circuit’s
decision, a permittee may: (i) request a preliminary
jurisdictional determination regarding a wetland in
order to receive expedited permit approval; (ii) agree
to the jurisdictional waiver as a condition of permit
authorization; (iii) undertake activities on the wetland
under the protection of the permit; and (iv) if faced
with the prospect of citizen-suit enforcement, assert
that the wetland was never jurisdictional in the first
place under Sackett’s exacting inquiry. A permittee
thereby
avoids
the
repercussions
of
the
representations made to secure the permit, and
19
defeats enforcement actions by any private attorney
general while retaining the benefit of the permit.
This is not a hypothetical concern—it happened
here. And it will not be an isolated event. The Corps
makes tens of thousands of preliminary jurisdictional
determinations and thus requires tens of thousands of
jurisdictional waivers annually.8 The sheer volume of
such
expedited
permits
and
accompanying
jurisdictional waivers underscores a simple truth. If
the Eleventh Circuit’s decision stands that a
jurisdictional waiver is binding only in a Corpsinitiated permit enforcement action, then the
jurisdictional waiver is nothing more than a hollow
formality.
8 The Corps estimates that it issues approximately “90,000
permits” and “50,000 jurisdictional determinations” annually.
Regulatory:
Permits,
U.S.
Army
Corps
of
Eng’rs,
https://tinyurl.com/5s6mu22m (last visited Mar. 3, 2026).
20
CONCLUSION
The petition should be granted.
Respectfully submitted,
Ruthanne M. Deutsch
Counsel of Record
Hyland Hunt
Deutsch Hunt PLLC
300 New Jersey Ave. NW
Suite 300
Washinton, DC 20001
(202) 868-6915
rdeutsch@deutschhunt.com
Counsel for Amici Curiae
March 4, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.