Amicus Curiae Brief — U.S. Army Corp of Eng'rs v. Hawkes Co., 136 S. Ct. 615 (2015) (No. 15-290)

In The

sSupreme Court of the United States

°

UNITED STATES ARMY CORPS OF ENGINEERS,

Petitioner,

Vz.

HAWKES CO., INC., et ai.,

Respondents.

°

On Writ Of Certiorari To The

United States Court Of

For The Eighth Circuit

¢

BRIEF OF THE STATES OF NORTH DAKOTA,

ALASKA, COLORADO, SOUTH DAKOTA,

NEBRASKA, AND IDAHO AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

¢

WAYNE STENEHJEM

Attorney General

JENNIFER L. VERLEGER

MARGARET I. OLSON

Assistant Attorneys General

OFFICE OF THE ATTORNEY GENERAL

500 N. 9th Street

Bismarck, ND 58501

PAUL M. SEBY

Counsel of Record

Special Assistant Attorney General

GREENBERG TRAURIG, LLP

1200 17th Street, Suite 2400

Denver, CO 80202

Telephone: 303.572.6584

SebyP@gtlaw.com

Counsel for Amicus Curiae

State of North Dakota

[Additional Amici Listed On Inside Cover]

_-

COCKLE LEGAL BRIEFS (800) 225-6464

WWW.COC KLELEGAL BRIEFS.COM

enamel

_ eee

CRAIG W. RICHARDS

Attorney General

123 Fourth Street

PO Box 110300

Juneau, AK 99811

Counsel for Amicus Curiae

State of Alaska

CYNTHIA H. COFFMAN

Attorney General

1300 Broadway, 10th Floor

Denver, CO 80203

Counsel for Amicus Curiae

State of Colorado

MARTY J. JACKLEY

Attorney General

STATE OF SOUTH DAKOTA

1302 E. Highway 14, Suite 1

Pierre, SD 57501

Counsel for Amicus Curiae

State of South Dakota

DOUGLAS J. PETERSON

Attorney General

DAVE BYDALEK

Deputy Attorney General

JUSTIN D. LAVENE

Assistant Attorney General

2115 State Capitol Building

PO Box 98920

Lincoln, NE 68509

Counsel for Amicus Curiae

State of Nebraska

LAWRENCE G. WASDEN

Attorney General

DOouGLAS M. CONDE

Deputy Attorney General

OFFICE OF THE

ATTORNEY GENERAL

1410 N. Hilton, 2nd Floor

Boise, ID 83706

Counsel for Amicus Curiae

State of Idaho

i

QUESTION PRESENTED

Whether the United States Army Corps of Engi-

neers’ determination that the property at issue con-

tains “waters of the United States” protected by the

Clean Water Act, 33 U.S.C. § 1362(7); see 33 U.S.C.

§ 1251 et seq., constitutes “final agency action for

which there is no other adequate remedy in a court,”

5 U.S.C. § 704, and is therefore subject to judicial

review under the Administrative Procedure Act, 5

U.S.C. § 701 et seq.

‘3

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES .....................cccceeeeeeeeee iv

INTEREST OF THE AMICI CURIAE.................... 1

SUMMARY OF THE ARGUMENT ....................... 4

SEITE cccscsinunienenisiniainsinimnmuniasuisampeniiinnennenenien 9

I. The WOTUS Rule underscores the critical

need for judicial review...................:ssseeeeeeees 9

A. Judicial review of jurisdictional deter-

minations will assist in implementing

ee isspsnctunreseniccneusiiinianienstitininmiiaininecin 10

B. The WOTUS Rule will not end the con-

troversy over the meaning of the term

“waters of the United States” and will

require extensive and highly contro-

versial case-by-case application............ 12

II. In the context of the WOTUS Rule, both

the Corps and courts have made findings

that official decisions of the Corps regard-

ing the scope of its jurisdiction determine

the “rights or obligations” of parties and

give rise to “legal consequences’ ................. 19

A. Across the political spectrum, there is

general agreement that jurisdictional

determinations are highly consequential

and impose significant restrictions....... 20

ii

TABLE OF CONTENTS -— Continued

Page

B. Courts considering the WOTUS Rule

have found, based on evidence pre-

sented, that assertions of jurisdiction

will result in immediate and signifi-

cant economic harms, as well as injury

to the authority of states to manage

their own lands and waters .................. 25

ITT Sicrinhciansinciniainniibdindeiccntintncenticnniasmménnsinnss 29

iv

TABLE OF AUTHORITIES

Page

CASES

UNITED STATES SUPREME COURT

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)........... 11

Bell v. New Jersey, 461 U.S. 773 (1983).................004. 12

Bennett v. Spear, 520 U.S. 154 (1997) ................... 5, 19

Hess v. Port Authority Trans-Hudson Corp.,

TEREST EEE eee nore 4,17

Pac. Gas & Elec. Co. v. State Energy Res. Con-

servation & Dev. Comm’n, 461 U.S. 190 (1983) ...... 11

Rapanos v. United States, 547 U.S. 715 (2006)11, 17, 29

Solid Waste Agency of N. Cook Cty. v. U.S.

Army Corps of Engineers, 531 U.S. 159

ais biiicinctiaiiaebbiniaiadbltettia ai sitiiaulelihitaitemninabial 4,5, 6,17

Thomas v. Union Carbide Agr. Products Co.,

RN HITT sis niiccttetesendgdnamnananiiiniediientionis 12

FEDERAL CIRCUIF COURT OF APPEALS

In re E.PA., 803 F.3d 804 (6th Cir. 2015).......... 6, 9, 26

Hawkes Co. v. U.S. Army Corps of Engineers,

782 F.3d 994 (8th Cir. 2015) ...........ccccsccceeeeeeeees 19, 23

FEDERAL DISTRICT COURT

North Dakota v. U.S. E.P.A., No. 3:15-cv-00059-

RRE-ARS, 2015 WL 5060744 (D.N.D. Aug.

27, 2015) (publication pending)...................... passim

Vv

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES

ic escciininiiciadiitibanicihcinnadieadaeidtiie passim

SANS ne ee ae Oe ORT RTI Ree 9

ERR SEENTEREEES Ee aoe Oe On renee 1, 17, 26

I i a a a 18

A cineca incscaiiencenlieicatiaeciiiil passim

FEDERAL REGULATIONS

LSTA NT SAO ORT TET 5,6

80 Fed. Reg. 37,054 (June 29, 2015), codified at

33 C.F.R. 328.1 et seg. (Waters of the United

I iccrscscciinsinsusoescnieaeinicieciaeiidiniaenineieinsiindl passim

STATE STATUTES

18 AAC 70 (Alaska Water Quality Standards).......... 18

18 AAC 83 (Alaska Pollutant Discharge Elimi-

nation System Program).................ccsssssseseeeees onenee 18

18 AAC 772 (Alaska wastewater disposal)................ 18

Alaska Stat. 46.03.050 et seq. ...............::0sceseeeeeseeeeeees 26

Ark. Code Ann. §§ 8-4-101 ef seq...........ccccccccecceseeeeeees 26

AS 46.03.100 (Alaska wastewater discharge

EEE a Oa 18

Mo. Rev. Stat. §§ 644.006 ef seq. ..............:cccceeeeeeeeeeees 26

Mont. Code Ann. §§ 75-5-101 et seq. ...............ccecceeeee 26

vi

TABLE OF AUTHORITIES — Continued

Page

N.D. Cent. Code §§ 61-28-01 et seq. .............cceeeeeeeeeee 26

N.M. Stat. Ann. §§ 74-6-4 et seq. .............ccccceeeeeeeeeeeeee 26

S.D. Codified Laws §§ 34A-2-1 et seq. ...............000000008 26

Wyo. Stat. Ann. §§ 35-11-301 et seq..................ccceeeeees 26

OTHER AUTHORITIES

Coral Davenport, Obama Announces New Rule

Limiting Water Pollution, N.Y. Times, May

27, 2015, available at http:?//www.nytimes.com/

2015/05/28/us/obama-epa-clean-water-pollution.

SORENSEN ES ETDS a oA Ace ee A ae 21

In re: Environmental Protection Agency and

Department of Defense, Case No. 15-3751

(6th Cir.), Motion by States of New York,

Connecticut, Hawaii, Massachusetts, Ore-

gon, Vermont, and Washington, and the Dis-

trict of Columbia, to Intervene in Support of

Respondents in Docket No. 15-3751 and In

Each of the Related Cases, Aug. 28, 2015,

a i ae ohinldiciepinnineds 24

Press Release, Sierra Club, Proposed Rule Will

Protect Drinking Water for 117 Million Ameri-

cans (March 25, 2014), available at http://

content.sierraclub.org/press-releases/2014/03/

sierra-club-praises-new-clean-water-safeguards........ 21

vii

TABLE OF AUTHORITIES — Continued

Page

Public Comment Letter, Re: Comments Of The

Attorneys General Of West Virginia, Nebraska,

Oklahoma, Alabama, Alaska, Georgia, Kansas,

Louisiana, North Dakota, South Carolina, And

South Dakota And The Governors Of Iowa,

Kansas, Mississippi, Nebraska, North Carolina,

And South Carolina On The Proposed Definition

Of “Waters of the United States” (Docket

No. EPA-HQ-OW-2011-0880) (dated Oct. 8,

2014), available at http://www.ago.wv.gov/

pressroom/Documents/WOTUS%20Comment%20

Letter%2010-8-FINAL. pdf ...............cccceeeeeeeeeeeeees 13, 22

Public Comment Letter, Re: Comments of the

State of North Dakota on the Proposed Defi-

nition of Waters of the United States (Docket

ID No. EPA-HQ-OW-2011-0880) (Nov. 14, 2014),

available at http://www.nd.gov/ndic/ic-press/

ee er III eicccccesccssnccsncccssccccsnccosececesees 23

Public Comment Letter of the Chamber of

Commerce, Re: Proposed Rule: Definition of

“Waters of the United States” Under the

Clean Water Act, 79 Fed. Reg. 22,188 (April

21, 2014); Docket No. EPA-HQ-OW-2011-0880

(Nov. 12, 2014), available at https://

www.uschamber.com/sites/default/files/11.12.14-_

multi-organization_comments_to_epa_and_usace_

on_proposed_rule_definition_of_waters_of_the_

I issn titiiciiciudsetnmisianidaeicininadtiinetidinannmases 22

vill

TABLE OF AUTHORITIES — Continued

Page

Public Comment of Hawaii Department of Trans-

portation (Docket ID No. EPA-HQ-OW-2011-

0880) (Oct. 20, 2014), Doc. 10184, available

at http:?//www.epa.gov/sites/production/files/2015-

06/documents/cwr_response_to_comments_6_

Resolution of the Western States Water Coun-

cil regarding Clean Water Act Jurisdiction,

Position No. 369 (July 18, 2014), available at

http://www. westernstateswater.org/wp-content/

uploads/2012/10/369_ WSWC-CWA-Jurisdiction-

Resolution_2014July18. pdf ..............ccccccccceeteeeee eens 23

U.S. General Accounting Office, Report to the

Chairman, Subcommittee on Energy Policy,

Natural Resources and Regulating Affairs,

Committee on Government Reform, House of

Representatives, Waters and Wetlands: Corps

of Engineers Needs to Evaluate Its District

Office Practices in Determining Jurisdiction,

NE IS I ts is sdsinctisasimiridliisanenneenienns 17

1

INTEREST OF THE AMICI CURIAE'

The Clean Water Act (“CWA”) establishes a sys-

tem of cooperative federalism that recognizes states

have the “primary responsibilities and rights” to “pre-

vent, reduce, and eliminate pollution, to plan the de-

velopment and use of land and water resources”

and to “consult with the administrator in the exercise

of [her] authority under this chapter.” 33 U.S.C.

§ 1251(b). This system of cooperative federalism au-

thorizes the Amici States (as defined below) to prom-

ulgate water quality standards, designate impaired

waters, issue total maximum daily loads, and certify

federal permits as compliant with state law.

The States of North Dakota, Alaska, Colorado,

South Dakota, Nebraska, and Idaho (collectively,

“Amici States”) are themselves property owners po-

tentially subject to CWA jurisdiction and also admin-

ister delegated permitting programs under the CWA.

The Amici States enforce their state laws regarding

clean water, land use, and permitting. The scope and

burden of the Amici States’ authority and obligations

under the CWA relies entirely upon the definition of

“waters of the United States” under the CWA.

‘ No party’s counsel authored any part of this brief. No per-

son other than the Amici Curiae contributed money intended to

fund the preparation or submission of this brief. All parties have

consented to the filing of this brief, and letters indicating

consent are on file with the Clerk.

2

An Army Corps of Engineers (“Corps”) dete-

rmination that it has jurisdiction over a particular

property or waterway deprives Amici States of their

historic authority to govern their own lands and

waters in accordance with their own laws and pri-

orities. At the same time, this jurisdictional determi-

nation places a significant administrative burden on

the Amici States, who must process permit appli-

cations, water quality certifications, and take other

administrative actions. Jurisdictional determinations

also directly impede state interests by requiring

states to apply for federal permits for much-needed

state and local infrastructure projects, burden these

projects with the need to prepare extensive Environ-

mental Impact Statements, require states to invest

significant amounts of time and money, and expose

the states to litigation risk.

The Corps and Environmental Protection Agency

(“EPA”) (collectively, “Agencies”) have recently issued

their Clean Water Rule: Definition of “Waters of the

United States,” 80 Fed. Reg. 37,054 (June 29, 2015),

codified at 33 C.F.R. 328.1 et seq. (““WOTUS Rule” or

“Rule”). Amici States and other states challenged the

WOTUS Rule on the grounds that (i) it exceeds the

authority granted to the Corps by Congress in the

CWA, (ii) that it was promulgated in violation of the

Administrative Procedure Act, 5 U.S.C. § 701 et seq.

(“APA”), as the WOTUS Rule itself is arbitrary and

capricious because the final rule that was adopted is

not a “logical outgrowth” of the proposed rule, and (iii)

because the Agencies did not comply with National

3

Environmental Policy Act (“NEPA”). On the eve of the

rule taking effect, a federal district court granted a

preliminary injunction, finding that the state chal-

lengers had a substantial likelihood of succeeding on

the merits and would suffer irreparable harm both to

their sovereign authority to manage their lands and

to their concrete financial and administrative inter-

ests. North Dakota v. U.S. E.PA., No. 3:15-cv-00059-

RRE-ARS, 2015 WL 5060744 at *4, *8 (D.N.D. Aug.

27, 2015) (publication pending). The Agencies elected

not to appeal.

The challenges to the WOTUS Rule demonstrate

that the question of which waters fall within the

scope of the CWA is one of enormous importance to

state governments as well as private citizens. The

need for judicial review of jurisdictional determina-

tions will only grow as the Agencies, the states, and

eventually the courts figure out how to apply the

WOTUS Rule to individual situations. Without ju-

dicial review, the Corps, often acting through individ-

ual local agents, will have the incentive to push the

boundaries of federal regulatory jurisdiction, secured

with the knowledge that challenging their assertions

of jurisdiction would be both expensive and risky.

And with each new jurisdictional determination, the

states’ traditional power to regulate their lands and

waters will shrink accordingly.

The WOTUS Rule magnifies this problem by as-

serting jurisdiction over a wide range of dry creek

beds and other features. It is clear from the public re-

action to the WOTUS Rule, both from state governments

4

and private citizens, and even from environmental

activists, that everyone understands that when the

Corps claims jurisdiction, the claim — for better or

worse — has a large and immediate impact on the

actual legal rights and options of everyone involved in

land use and planning.

The Amici States, which are potentially subject

to the Agencies’ expansive assertion of jurisdiction,

have a sovereign interest in protecting their ability to

govern their lands and waters in the manner chosen

by their citizens. Judicial review of jurisdictional

determinations by the Corps will provide an im-

portant protection for that interest. The Amici States

therefore urge this Court to affirm the holding of the

Eighth Circuit that jurisdictional determinations are

judicially reviewable under the APA.

°

SUMMARY OF THE ARGUMENT

“Regulation of land use is a function traditionally

performed by local governments[.]” Solid Waste Agency

of N. Cook Cty. v. U.S. Army Corps of Engineers, 531

U.S. 159, 174 (2001) (quoting Hess v. Port Authority

Trans-Hudson Corp., 513 U.S. 30, 44 (1994)). When the

CWA is interpreted expansively, “to claim federal

jurisdiction over ponds and mudflats” this “result({s]

in a significant impingement of the States’ traditional

and primary power over land and water use.” Jd. at

161.

The decision of the Eighth Circuit upholds a pow-

erful and important protection for state sovereignty

5

and the authority of local governments to make local

land use decisions without the permission of the

federal government. Judicial review is an indispens-

able bulwark against such “federal encroachment

upon a traditional state power.” Jd. at 173. To be

effective, however, it must actually enable litigants to

challenge the jurisdiction of the Corps over their

lands and waters — without having to first submit to

that jurisdiction and undergo a protracted and costly

permitting process or risk criminal prosecution. Amici

States urge this Court to affirm.

The parties and the Eighth Circuit all agree that

the question of whether an individual jurisdictional

determination under 33 C.F.R. 331.2 et seq., is a final

agency action subject to judicial review under the

APA turns on whether it is an agency action “by

which rights or obligations have been determined, or

from which legal consequences will flow.” Bennett v.

Spear, 520 U.S. 154, 177-78 (1997) (quotation omit-

ted). This question exists in the shadow of a larger

debate over a new rulemaking that articulates a

sweeping new definition of the statutory term “waters

of the United States.”

The Corps has shown a consistent pattern of

adopting an interpretation of the CWA that “invokes

the outer limits of Congress’ power,” rather than con-

struing the statute more narrowly to avoid potential

constitutional problems “unless such construction is

plainly contrary to the intent of Congress.” Solid

Waste Agency of N. Cook Cty., 531 U.S. at 172-73

(quotation omitted). And on June 29, 2015, the Corps

6

and the EPA issued the WOTUS Rule — thereby

effectively expanding the definition of “waters of

the United States” and dramatically displacing state

authority over water quality and land and water

resources. The question in this case — whether an in-

dividual jurisdictional determination under 33 C.F.R.

331.2 et seq., is a final agency action subject to judi-

cial review under the APA — thus exists in the shadow

of a larger debate over the WOTUS Rule’s sweeping

new definition of the statutory term “waters of the

United States.”

Amici States and other states have been at the

forefront of litigation over the WOTUS Rule, which

they are challenging in the District of North Dakota.

North Dakota v. U.S. E.PA., No. 3:15-cv-00059-RRE-

ARS. Last summer, that district court issued an order

granting a temporary injunction in that case, finding

that “[t]he States are likely to succeed on the merits

of their claim that the EPA has violated its grant of

authority in its promulgation of the Rule,” North

Dakota v. U.S. E.PA., No. 3:15-cv-00059-RRE-ARS,

2015 WL 5060744 at *4 (D.N.D. Aug. 27, 2015) (publi-

cation pending); there is “irreparable harm” because

“the States will lose their sovereignty over intrastate

waters” and will “incur monetary losses as a result of

an unlawful exercise of regulatory authority,” id. at

*7; and that the balance of harms favors the States

because the harm is “both imminent and likely,” id. at

*8. The Sixth Circuit has also granted a temporary

stay of the WOTUS Rule on the same grounds. Jn re

E.PA., 803 F.3d 804, 808-09 (6th Cir. 2015).

7

Whatever the outcome of these challenges, the

WOTUS Rule will inevitably spawn a new set of

controversies over the scope of CWA jurisdiction, as

parties challenge the validity of the WOTUS Rule and

its application in specific situations. If the WOTUS

Rule is invalidated, any new rule that is promulgated

will also ultimately require clarification and appli-

cation. But if the Court adopts the Corps’ position in

this case, there will be a long and unnecessary period

of confusion and frustration as parties wishing to

challenge new jurisdictional determinations under

the WOTUS Rule work their way through a costly

and complicated permit process — or face the risk of

monetary penalties and jail time. Allowing jurisdic-

tional determinations to be challenged as final agency

actions, on the other hand, will permit courts to ef-

ficiently and authoritatively answer important ques-

tions regarding the validity and proper scope of

federal regulatory authority. Such clarity is critical

for cooperative federalism, state sovereignty, and the

rights and responsibilities of everyday citizens.

The debates over the WOTUS Rule directly

address the issue before this Court — namely, whether

jurisdictional determinations give rise to legal conse-

quences such that they are subject to judicial review.

To be sure, in many ways, the WOTUS Rule is simply

a jurisdictional determination, applied nationwide,

that effectively expands the definition of “waters of

the United States” and provides vague, questionable

standards regarding how and when CWA jurisdiction

applies to different terrain across the country. Yet the

8

public reaction to the WOTUS Rule confirms that

jurisdictional determinations impose severe legal re-

strictions on their recipients. A Corps jurisdictional

determination — whether it be in the form of appli-

cation of the WOTUS Rule or an individual deter-

mination — is made without denying a permit or

imposing any immediate penalties that could other-

wise be challenged, yet both impose very real costs.

Thus, many of the statements made regarding the

sweeping effects of the WOTUS Rule apply equally to

ordinary jurisdictional rulings such as the one at

issue here. The debates surrounding the WOTUS

Rule, and the comments provided by parties on all

sides of the political spectrum, shed light on the legal

and economic effects of rulings regarding juris-

dictional waters and belie the Corps’ assertion that

no real legal consequences flow from its jurisdictional

determinations. This larger controversy also illus-

trates the very real economic and administrative

costs of the uncertainty surrounding CWA jurisdic-

tion, and the way that this uncertainty empowers

federal agency officials at the expense of both the

states and private actors.

Just as the WOTUS Rule imposes imminent and

substantial harms on Amici States and others, the

Hawkes Co., Inc. jurisdictional determination and

thousands of other jurisdictional rulings made by the

Corps have imminent and substantial legal effects on

their recipients — making them final agency actions

under the APA.

9

Amici States respectfully submit this brief to en-

sure the Court is aware of the other important recent

developments in this area of law, the importance that

judicial review takes on in this evolving area of ju-

risdiction, and the evidence that has emerged during

the debates over the WOTUS Rule that further dem-

onstrates the very real and immediate effects of the

Corps’ jurisdictional determinations.

¢

ARGUMENT

I. The WOTUS Rule underscores the critical

need for judicial review.

The ongoing legal challenges to the WOTUS Rule

are valid and ripe under the APA, whether or not

individual jurisdictional determinations are found to

be final agency actions, because it is a final rulemak-

ing that is intended to carry the force of law. 5 U.S.C.

§ 704.

The WOTUS Rule, which was scheduled to go

into effect on August 28, 2015, WOTUS Rule, 80 Fed.

Reg. at 37,054, has now been stayed and enjoined

temporarily by two courts. Jn re E.PA., 803 F.3d 804,

808-09 (6th Cir. 2015); North Dakota v. U.S. E.PA.,

No. 3:15-cv-00059-RRE-ARS, 2015 WL 5060744 at *8

(D.N.D. Aug. 27, 2015) (publication pending).

Under the WOTUS Rule, the Corps will not

reopen currently valid jurisdictional determina-

tions or revoke valid permits, but “jurisdictional

10

determinations and requests for authorization requir-

ing an approved jurisdictional determination issued

on or after the effective date of this rule will be made

consistent with this rule.” WOTUS Rule, 80 Fed. Reg.

at 37,074. Thus, depending on the outcome of the

legal challenges, the Corps will soom begin to issue

new jurisdictional determinations applying its new

and complicated regulation, or, if that is struck down,

applying existing law or whatever replacement regu-

lation is ultimately adopted.

If the WOTUS Rule is not invalidated, it will

spawn hundreds, perhaps thousands, of smaller chal-

lenges to clarify its application in particular circum-

stances, and a ruling in favor of the Corps in this case

would significantly impede judicial review of those

challenges.

A. Judicial review of jurisdictional deter-

minations will assist in implementing

the CWA.

Even if the WOTUS Rule is found to be properly

promulgated and consistent with the CWA as a whole

— not a result Amici States think likely — that does

not mean it will be found lawful as applied to each

particular situation. It will be necessary not only to

look at the WOTUS Rule in general and the question

of whether it is a reasonable interpretation of the

CWA, but also to determine whether the application

of the WOTUS Rule to a particular pothole or arroyo

exceeds the Corps’ jurisdiction under the CWA. “[T]he

11

entire land area of the United States lies in some

drainage basin, and an endless network of visible

channels furrows the entire surface, containing water

ephemerally wherever the rain falls, [and] [a]ny plot

of land containing such a channel may potentially be

regulated as a ‘water of the United States.’” Rapanos

v. United States, 547 U.S. 715, 722 (2006).

Allowing judicial review of jurisdictional deter-

minations will allow courts to authoritatively resolve

disputes over the WOTUS Rule without first wait-

ing years for permit applications to work their way

through the system or dealing with the complications

of heavy civil and criminal penalties. See Pac. Gas &

Elec. Co. v. State Energy Res. Conservation & Dev.

Comm'n, 461 U.S. 190, 201 (1983). Where the Corps

overreaches its jurisdiction, the courts may step in

and say so thereby establishing helpful precedent

that will guide future cases. Similarly, when the

Corps properly asserts its jurisdiction, the courts will

help prevent needless challenges to the Corps’ lawful

exercise of its authority. In a system that depends

largely on voluntary compliance, it is important for

the people who receive jurisdictional determinations

to be secure in the knowledge that the Agencies ap-

preciate the limits of their authority.

Either way, controversies can be considered and

efficiently resolved. In the presence of a sweeping and

controversial new rulemaking, “a pre-enforcement

challenge is calculated to speed enforcement.”

Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967).

When the government prevails, it has a binding

12

decision to encourage compliance, and if it loses it can

make prompt changes to the initial decision. Id., see

Thomas v. Union Carbide Agr. Products Co., 473 U.S.

568, 581 (1985) (“Doubts about the validity of [the

Federal Insecticide, Fungicide, and Rodenticide Act]’s

data-consideration and compensation schemes have

plagued the pesticide industry and seriously ham-

pered the effectiveness of FIFRA’s reforms of the reg-

istration process.”); see also Bell v. New Jersey, 461

U.S. 773, 780 (1983).

As the Corps, state governments, and landowners

grapple with the problem of interpreting and ap-

plying the WOTUS Rule, they will benefit from the

ability to obtain judicial review of jurisdictional

determinations without the complications that come

with the enforcement of civil and criminal penalties.

B. The WOTUS Rule will not end the con-

troversy over the meaning of the term

“waters of the United States” and will

require extensive and highly controver-

sial case-by-case application.

Judicial review will be necessary and valuable

even if, as the Agencies claim, the WOTUS Rule

ultimately does “provide[] greater clarity regarding

which waters are subject to CWA jurisdiction, reduc-

ing the instances in which permitting authorities

would need to make jurisdictional determinations on

a case-specific basis.” WOTUS Rule, 80 Fed. Reg.

at 37,054. Even well-written, straightforward rules

13

require interpretation when they deal with a question

as complicated as CWA jurisdiction, as new and un-

expected issues arise and need to be resolved.

But it is hard to believe the WOTUS Rule will

actually create the desired clarity. Many commenters

and others have expressed concern that the WOTUS

Rule raises as many questions as it answers; inev-

itably, these questions are likely to lead to further

litigation. See, e.g., Public Comment Letter, Re: Com-

ments Of The Attorneys General Of West Virginia,

Nebraska, Oklahoma, Alabama, Alaska, Georgia,

Kansas, Louisiana, North Dakota, South Carolina,

And South Dakota And The Governors Of Iowa,

Kansas, Mississippi, Nebraska, North Carolina, And

South Carolina On The Proposed Definition Of

“Waters of the United States” (Docket No. EPA-HQ-

OW-2011-0880) (dated Oct. 8, 2014), available at

http://www.ago.wv.gov/pressroom/Documents/WOTUS

%20Comment%20Letter%2010-8-FINAL. pdf.

As just one example, the district court in North

Dakota credited testimony that language in the WOTUS

Rule might cover previously non-jurisdictional prairie

and desert features, finding that the Rule would

involve “vast expenditures to map and survey large

portions of the state” and lead to “expansion of per-

mitting, oversight, technical and legal analysis for

reclamation and development projects.” North Dakota

v. U.S. E.P.A., No. 3:15-cv-00059-RRE-ARS, 2015 WL

5060744 at *7 (D.N.D. Aug. 27, 2015) (publication

pending).

14

The reasons for concern and confusion about the

WOTUS Rule’s new sweeping effects and consequences

are also obvious from the face of the Rule. The

WOTUS Rule declares that “[aJll waters which are

currently used, were used in the past, or may be sus-

ceptible to use in interstate or foreign commerce,

including all waters which are subject to the ebb and

flow of the tide” as well as “{aJll interstate waters,

including interstate wetlands” and “the territorial

seas” are per se jurisdictional waters. 80 Fed. Reg. at

37,104. All intrastate “tributaries” of primary waters

are per se jurisdictional waters. Jd. The term “tribu-

tary” has been one focus of the debate.

The WOTUS Rule defines “tributary” as “a water

that contributes flow, either directly or through an-

other water” to a primary water and “is characterized

by the presence of the physical indicators of a bed and

banks and an ordinary high water mark.” Id. at

37,105. A water is defined as a tributary even if it has

man-made or natural interruptions, or breaks, “so

long as a bed and banks and an ordinary high water

mark can be identified upstream of the break.” Jd. at

37,106. An “ordinary high water mark” (“OHWM_”) is

defined as “that line on the shore established by the

fluctuations of water and indicated by physical char-

acteristics such as a clear, natural line impressed on

the bank, shelving, changes in the character of soil,

destruction of terrestrial vegetation, the presence of

litter and debris, or other appropriate means.” Jd.

Thus, the WOTUS Rule’s definition of tributary

sweeps within the Agencies’ authority ephemeral

15

streams and channels that are usually dry. It also

makes man-made features such as ditches, not spe-

cifically excluded, per se jurisdictional by sweeping

them into the definition of tributary. Under the

WOTUS Rule, all intrastate waters “adjacent” to pri-

mary waters, impoundments, or tributaries are per

se jurisdictional. 80 Fed. Reg. at 37,104. “[A]djacent

waters” are waters “bordering, contiguous, or neigh-

boring” primary waters, impoundments, or tribu-

taries. Id. at 37,105. The category includes “waters

separated by constructed dikes or barriers, natural

river berms, beach dunes, and the like.” Jd. It also

includes wetlands within or abutting the ordinary

high water mark of an open water, such as a pond or

lake. Id.

These definitions are neither simple nor straight-

forward to apply, and they have already been chal-

lenged in the pending WOTUS Rule litigation as

incompatible with the language of the CWA and tra-

ditional state authority over land use and water. And

even if these definitions were perfectly clear, nu-

merous determinations are still left to case-by-case

application. The WOTUS Rule permits the Agencies

to exercise authority on a case-by-case basis over a

water not covered by any other part of the Rule — i.e.,

not already included in a per se category — that alone

or in combination with other similarly situated wa-

ters have a “significant nexus” to a primary water. 80

Fed. Reg. at 37,104-105.

This includes five enumerated geographic fea-

tures, including prairie potholes, regardless of how

16

remote they are to a primary water. The WOTUS

Rule also includes within federal jurisdiction, on a

case-by-case basis, “[a]ll waters [at least partially]

located within the 100-year floodplain of a” primary

water that have a significant nexus with a primary

water. Jd. at 37,105. It further includes, on a case-by-

case basis, “all waters [at least partially] located

within 4,000 feet of the high tide line or ordinary high

water mark of a” primary water, impoundment, or

tributary that have a significant nexus to a primary

water. Id.

The case-by-case test the Agencies will apply

under the WOTUS Rule is whether waters alone or in

combination with “similarly situated waters in the

region significantly affect{ ] the chemical, physi-

cal, or biological integrity” of a primary water. Id. at

37,106. “Region” is defined as “the watershed that

drains to the nearest [primary water].” Id. Waters

with only a shallow sub-surface connection or no hy-

drologic connection whatsoever to a primary water,

impoundment, or tributary can satisfy this test.

This new, complex patchwork of language will

inevitably give rise to a new set of applications for

jurisdiction determinations. Judicial review is the

only way to ensure that these disputes are handled

promptly and in an even-handed and consistent

fashion.

That is particularly true given that the Corps has

earned a reputation for using unclear rules to give its

local agents more discretion: “The Corps’ enforcement

17

practices vary somewhat from district to district be-

cause ‘the definitions used to make jurisdictional de-

terminations’ are deliberately left ‘vague.’” Rapanos,

547 U.S. at 727 (quoting U.S. General Accounting

Office, Report to the Chairman, Subcommittee on En-

ergy Policy, Natural Resources and Regulating Af-

fairs, Committee on Government Reform, House of

Representatives, Waters and Wetlands: Corps of

Engineers Needs to Evaluate Its District Office Prac-

tices in Determining Jurisdiction, GAO-04-297, at 22,

26 (Feb. 2004)). Judicial review of jurisdictional

determinations will provide important sideboards to

guide the Corps in its application of the WOTUS

Rule, facilitate uniformity across agencies, and pro-

vide a critical check on federal regulatory discretion.

As the CWA and the courts recognize, states have

a constitutional right to maintain their “traditional

and primary power over land and water use.” Solid

Waste Agency of N. Cook Cty., 531 U.S. at 174; see,

e.g., Hess, 513 U.S. at 44 (“[RJegulation of land use

[is] a function traditionally performed by local gov-

ernments”). Consistent with this authority, the states

have enacted comprehensive regulatory schemes to

protect, maintain, and improve the quality of waters

in their state, consistent with the CWA’s overall goal

to “restore and maintain the chemical, physical and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). Each time the Corps makes a jurisdictional

determination, it deprives the states of further

authority over their own land. And if the Corps’

18

jurisdictional determination is excessive, it wrongly

deprives states of that authority.

There are excellent reasons why state and local

governments are often better situated to determine

whether diverting a creek or draining a puddle is a

good balance between environmental protection and

economic development: They have greater familiarity

with the climate and geography of their own country-

side, and they are more answerable to the local

electorate and the needs of the people in their com-

munities. Alaska is but one salient example: The

State has over 174 million acres of wetlands — more

than all the other states combined — many of which

are remotely located far from any navigable

waterbody. Because Alaska’s wetlands comprise 43%

of the State’s surface areas, more often than not

important public infrastructure development projects

like water and sewer, roads, or airport projects in-

volve work in wetlands or non-navigable waters. And

many of the State’s wetlands are underlain with

permafrost, which form a nearly impervious frozen

layer of soil that creates seasonally saturated soil

conditions above the frozen layer during Alaska’s

short summer months. Alaska is the only state with

lands affected by pervasive permafrost conditions,

and has long protected these and other important

resources under its own statutory and regulatory

authority. See, e.g., 33 U.S.C. § 1341 (CWA Section

401 certification authority); AS 46.03.100 (waste-

water discharge permitting authority); 18 AAC 70

(Alaska Water Quality Stanards); 18 AAC 772

19

(wastewater disposal); and 18 AAC 83 (Alaska Pollu-

tant Discharge Elimination System Program (APDES)).

Judicial-review of jurisdictional determinations is

therefore necessary to preserve the proper balance

between state and federal authority that is funda-

mental to the scheme of cooperative federalism that

Congress enacted in the CWA.

Il. In the context of the WOTUS Rule, both the

Corps and courts have made findings that

official decisions of the Corps regarding

the scope of its jurisdiction determine the

“rights or obligations” of parties and give

rise to “legal consequences.”

A jurisdictional determination is a final agency

action, subject to judicial review under the APA, if it

“mark[s] the consummation of the agency’s decision-

making process [and is] one by which rights or

obligations have been determined, or from which

legal consequences will flow.” Bennett, 520 U.S. at 178

(quotation omitted). It is undisputed that a jurisdic-

tional determination is “the consummation of the

Corps’ decisionmaking process on the threshold issue

of the agency’s statutory authority.” Hawkes Co. v.

U.S. Army Corps of Engineers, 782 F.3d 994, 999 (8th

Cir. 2015); Brief for the Petitioner at 25. So, this case

turns on whether legal consequences flow from the

Corps’ determination that it has CWA jurisdiction.

In its opening brief, the Corps attempts to char-

acterize its jurisdictional determinations as helpful

20

suggestions — rather than legal decisions that impose

real obligations on their recipients. The horrified

reaction of these recipients when they receive this

“help,” however, is revealing. Nowhere is this more

clearly seen than in the public, and judicial, reaction

to the Corps’ WOTUS Rule.

The legal effects of the WOTUS Rule (particu-

larly its per se rules) are, in many respects, the same

as the legal effects of the jurisdictional determination

at issue here. The WOTUS Rule conclusively deter-

mines the existence of “waters of the United States”

and the application of the CWA, without itself being a

permit grant or an enforcement action. See 80 Fed.

Reg. at 37,056 (stating the Rule will replace the need

for jurisdiction determinations in many cases). “This

final rule does not establish any regulatory require-

ments, [but] [{i]nstead it is a definitional rule that

clarifies the scope of the ‘waters of the United

States.’” Id. at 37,054.

A. Across the political spectrum, there is

general agreement that jurisdictional

determinations are highly consequen-

tial and impose significant restrictions.

Although the Agencies describe the WOTUS Rule

as a “clarification” and repeatedly state that they do

not believe that it significantly expands jurisdiction,

this claim has been met with widespread skepticism.

It appears the Corps is the only one attempting to

argue the WOTUS Rule is inconsequential. Whether

21

they favor or oppose the WOTUS Rule, nearly every-

one agrees that a determination that a particular

wetland or ditch falls within the CWA jurisdictional

waters will have serious consequences for the parties

involved. Even the Agencies admit that the WOTUS

Rule would have significant consequences: “The rule

will ensure protection for the nation’s public health

and aquatic resources, and increase CWA program

predictability and consistency.” Jd.

Outside groups from all parts of the political

spectrum have not been shy about stating the very

substantial effects that this jurisdictional regulation

will have. The New York Times described it as “a

sweeping new clean water regulation meant to re-

store the federal government’s authority to limit

pollution in the nation’s rivers, lakes, streams and

wetlands.” Coral Davenport, Obama Announces New

Rule Limiting Water Pollution, N.Y. Times, May 27,

2015, available at http://www.nytimes.com /2015/05/

28/us/obama-epa-clean-water-pollution. html.

The Sierra Club issued a press release proclaim-

ing that “(t]he new rule will finally restore protec-

tions, as originally intended, to almost all of the

nation’s fresh waters — ensuring safe drinking water

for 117 million Americans.” Press Release, Sierra

Club, Proposed Rule Will Protect Drinking Water for

117 Million Americans (March 25, 2014), available at

http://content.sierraclub.org/press-releases/2014/0¥sierra-

club-praises-new-clean-water-safeguards. The Cham-

ber of Commerce, on behalf of 375 organizations,

worried that the WOTUS Rule would transform the

22

Corps into “a central authority that makes the key

decisions on many kinds of land and water uses.”

Public Comment Letter, Re: Proposed Rule: Definition

of “Waters of the United States” Under the Clean

Water Act, 79 Fed. Reg. 22,188 (April 21, 2014);

Docket No. EPA-HQ-OW-2011-0880 (Nov. 12, 2014),

at 2, available at https://www.uschamber.com/sites/

default/files/11.12.14-_multi-organization_comments_to_

epa_and_usace_on_proposed_rule_definition_of_waters_

of_the_united_states.pdf.

This intense interest in the Corps’ jurisdictional

determination is shared by state Attorneys General

and Governors, who fear that the Corps “seeks to

place the lions’ share of intrastate water and land

management in the hands of the Federal Govern-

ment.” Public Comment Letter, Re: Comments Of The

Attorneys General Of West Virginia, Nebraska, Okla-

homa, Alabama, Alaska, Georgia, Kansas, Louisiana,

North Dakota, South Carolina, And South Dakota

And The Governors Of Iowa, Kansas, Mississippi,

Nebraska, North Carolina, And South Carolina On

The Proposed Definition Of “Waters of the United

States” (Docket No. EPA-HQ-OW-2011-0880) (Oct. 8,

2014), available at http://www.ago.wv.gov/pressroom/

Documents/WOTUS%20Comment%20Letter%2010-8-

FINAL.pdf.

“Inclusion of a water as a ‘water of the United

States’ triggers the CWA’s onerous permitting re-

quirements an expensive and uncertain process,

which can take years and cost tens and hundreds of

thousands of dollars.” Id. “If a pollution event occurs,

23

it must be dealt with; however, this rule creates the

potential for federal permitting, penalties, and re-

sponsibility surrounding every waterbody|.]” Public

Comment Letter, Re: Comments of the State of North

Dakota on the Proposed Definition of Waters of the

United States (Docket ID No. EPA-HQ-OW-2011-

0880) (Nov. 14, 2014) at 3, available at http://www.

nd.gov/ndic/ic-press/WOTUS-comments. pdf. “EPA and

cooperating federal agencies are appropriating for

themselves the authority to become the arbiter of all

economic enterprises and the power to impede or vet

them at will.” Jd. at 3-4.’ “[A]ny efforts to redefine or

clarify CWA jurisdiction have, on their face, numer-

ous federalism implications that have the potential to

significantly impact states and alter the d:stribution

of power and responsibilities among the states and

the federal government([.]” Resolution of the Western

States Water Council regarding Clean Water Act

* The facts of this current case validate the concern that the

Corps can use its jurisdictional determination power to vet and

veto economic activity. “At a January 2011 meeting, Corps rep-

resentatives urged [Kevin] Pierce[, part owner of two companies

attempting to develop,] to abandon his plan, emphasizing the

delays, cost, and uncertain outcome of the permitting process

In March, the Corps sent a letter advising it had made a ‘prelim-

inary determination’ the wetland is a regulated water of the

United States and, ‘at a minimum,’ an environmental assess-

ment would be required. At an April meeting, a Corps repre-

sentative told Pierce a permit would take years and the process

would be very costly. During a site visit in early June, another

Corps representative told a Hawkes [Co. Inc. Jemployee that ‘he

should start looking for another job.’” Hawkes Co. v. U.S. Army

Corps of Engineers, 782 F.3d 994, 998 (8th Cir. 2015).

24

Jurisdiction, Position No. 369 (July 18, 2014), at 1,

available at http://www.westernstateswater.org/wp-content/

uploads/2012/10/369_WSWC-CWA-Jurisdiction-Resolution_

2014July18.pdf.

A particularly revealing comment was submitted

to the Corps from the Hawaii Department of Trans-

portation (“HDOT”), beseeching the Corps to clarify

that its municipal sewer system is not a water of the

United States because “[oJnce a ditch is under federal

jurisdiction, the Section 404 permit process can be

extremely cumbersome, time-consuming and expen-

sive, leaving HDOT vulnerable to citizen lawsuits if

the federal permit process is not significantly stream-

lined.” Public Comment of HDOT, (Docket ID No.

EPA-HQ-OW-2011-0880) (Oct. 20, 2014), Doc. 10184,

at 36 available at http://www.epa.gov/sites/production/

files/2015-06/documents/cwr_response_to_comments_6_

ditches. pdf.

There thus appears to be a public consensus,

from across the political spectrum, including both

private organizations and state governments, that

formal determinations of jurisdiction by the Corps

* Hawaii was one of seven states that filed a motion to

intervene in the Sixth Circuit in support of the WOTUS Rule.

See In re: Environmental Protection Agency and Department of

Defense, Case No. 15-3751 (6th Cir.), Motion by States of New

York, Connecticut, Hawaii, Massachusetts, Oregon, Vermont,

and Washington, and the District of Columbia, to Intervene in

Support of Respondents in Docket No. 15-3751 and In Each of

the Related Cases, Aug. 28, 2015, Doc. No. 19.

25

impose immediate and severe legal obligations on

state and local governments, landowners, and project

proponents. The Agencies appear to be almost alone

in their attempt to argue otherwise. Because these

jurisdictional determinations are formal and final de-

terminations with real and substantial consequences,

they ought to be treated as final agency action under

the APA.

B. Courts considering the WOTUS Rule

have found, based on evidence presented,

that assertions of jurisdiction will re-

sult in immediate and significant eco-

nomic harms, as well as injury to the

authority of states to manage their own

lands and waters.

Courts considering challenges to the WOTUS

Rule, similarly, have not had any difficulty concluding

that this jurisdictional rule would inflict a substantial

and immediate impact — an “irreparable injury” — on

both the states bringing the challenges and other

regulated parties. This injury would occur independ-

ent of any decision that the Corps might later make

regarding permits or enforcement actions.

When the District of North Dakota recently

enjoined the WOTUS Rule, it found the Rule would

result in irreparable injury. North Dakota v. U.S.

E.PA., No. 3:15-cv-00059-RRE-ARS, 2015 WL 5060744

at *7 (D.N.D. Aug. 27, 2015) (publication pending). The

Sixth Circuit reached a similar conclusion and stayed

the WOTUS Rule nationwide until jurisdictional

26

briefing could be completed. “(T]he sheer breadth of

the ripple effects caused by the Rule’s definitional

changes counsels strongly in favor of maintaining the

status quo for the time being.” Jn re E.PA., 803 F.3d

804, 808-09 (6th Cir. 2015). The District of North

Dakota specifically found that there would be irrepa-

rable injury to the sovereign interests of states, to

their direct financial interests, and to the taxpayers

and citizens. North Dakota v. U.S. E.PA., No. 3:15-cv-

00059-RRE-ARS, 2015 WL 5060744 at *7-8 (D.N.D.

Aug. 27, 2015) (publication pending). These same

types of injuries arise — on a smaller scale — from all

jurisdictional determinations.

First, and most importantly, each expansion of

federal jurisdiction comes at the expense of the ability

of state and local governments to control their own

lands and waters. The CWA establishes a system of

cooperative federalism that recognizes states have

the “primary responsibilities and rights” to “prevent,

reduce, and eliminate pollution, to plan the develop-

ment and use of land and water resources” and

to “consult with the administrator in the exercise

of (her) authority under this chapter.” 33 U.S.C.

§ 1251(b). When a water, or pothole, does not fall

under CWA jurisdiction, it is regulated under state

and local law. See Alaska Stat. 46.03.050 et seq.; N.D.

Cent. Code §§ 61-28-01 et seg.; Wyo. Stat. Ann. §§ 35-

11-301 et seg.; Mont. Code Ann. §§ 75-5-101 et seq.;

N.M. Stat. Ann. §§ 74-6-4 et seq.; S.D. Codified Laws

§§ 34A-2-1 et seqg.; Mo. Rev. Stat. §§ 644.006 et seq.;

Ark. Code Ann. § 8-4-101 et seq.

27

“Once the Rule takes effect, the States will lose

their sovereignty over intrastate waters that will

then be subject to the scope of the Clean Water Act.”

North Dakota v. U.S. E.PA., No. 3:15-cv-00059-RRE-

ARS, 2015 WL 5060744 at *7 (D.N.D. Aug. 27, 2015)

(publication pending). “Immediately upon the Rule

taking effect, the Rule will irreparably diminish the

States’ power over their waters.” Jd. An individual

jurisdictional determination similarly has the imme-

diate legal effect of displacing state authority -

whether er not the Corps ultimately grants a permit

or brings an enforcement action. That is a concrete

legal effect, no less than the impact of the WOTUS

Rule.

The district court in North Dakota also found

that the WOTUS Rule would inflict irreparable

monetary harm. Jd. “These losses are unrecoverable

economic losses because there is neither an alterna-

tive source to replace the lost revenues nor a way to

avoid the increased expenses.” Jd. The court made

this finding based on evidence submitted by state

officials charged with administering environmental

programs and programs that frequently require CWA

permits. For example, the North Dakota State Engi-

neer, who is charged with “managing and directing

all responsibilities of water appropriation, floodplain

management, regulation of dikes, dams, and drain-

age, and determination of the ordinary high water

mark and sovereign lands management” submitted a

declaration describing his experiences with the CWA

permitting system. North Dakota v. U.S. E.PA., No.

28

3:15-cv-00059-RRE-ARS, at Doc. No. 33-8, at 1-2. He

explained that when a prairie pothole or drainage

wash is found to be a jurisdictional water, the need to

obtain a § 404 permit autometically triggers NEPA,

“which creates additional expense and delay for

state planning and infrastructure as the agency must

provide necessary information to support an Environ-

mental Impact Statement or Environmental Assess-

ment.” Jd. at 4. “The significant delays associated

with this process will interfere with the various

ongoing infrastructure projects throughout the state.”

Id.

Similar declarations were submitted by environ-

mental and infrastructure agencies in several other

states as well, describing the very significant finan-

cial and regulatory burdens imposed by the CWA

upon a finding of jurisdiction.

The WOTUS Rule’s adverse financial impacts on

state and local governments further reflect the real-

world consequences flowing from the Corps’ assertion

of federal regulatory authority. Local officials have no

choice but to react to the claim of federal jurisdiction

and respond to it. For the Agencies to suggest this

does not impose a “legal consequence,” or determine

“rights and obligations,” defies reality. That is no less

true when the Corps asserts federal authority pursu-

ant to a jurisdictional determination. Judicial review

therefore should be, and indeed must be, available

under the APA.

29

The Corps mistakenly contends that “[a]n affir-

mative jurisdictional determination states the Corps’

conclusion that waters of the United States are

present at the relevant site, but it does not direct the

landowner to take or refrain from taking any particu-

lar action, and it does not affect the landowner’s

ability to seek and obtain a permit.” Brief for the

Petitioner at 17. But at the end of the day, “[tJhe

burden of federal regulation on those who would

deposit fill material in locations denominated ‘waters

of the United States’ is not trivial.” Rapanos, 547 U.S.

at 721. As this Court has recognized, a jurisdictional

determination confers on the Corps “the discretion of

an enlightened despot{.]” Jd. And when the Corps

flexes its extraordinary regulatory muscle in this

manner — regardless of whether it has properly

exercised that authority — it alters the legal land-

scape, compromises a landowner’s interest in his or

her property, undermines a state’s sovereign regula-

tory authority, and triggers real and immediate costs

and consequences that merit judicial review under

the APA.

+

CONCLUSION

The Eighth Circuit correctly decided that juris-

dictional determinations are final agency actions,

with immediate and serious legal consequences, and

subject to review. This review will be particularly

30

important in the next few years, as the Corps moves

to implement it new regulatory scheme.

Respectfully submitted,

WAYNE STENEHJEM

Attorney General

JENNIFER L. VERLEGER

MARGARET I. OLSON

Assistant Attorneys General

OFFICE OF THE ATTORNEY GENERAL

500 N. 9th Street

Bismarck, ND 58501

Pau. M. SEBY

Counsel of Record

Special Assistant Attorney General

GREENBERG TRAURIG, LLP

1200 17th Street, Suite 2400

Denver, CO 80202

Telephone: 303.572.6584

SebyP@gtlaw.com

Counsel for Amicus Curiae

State of North Dakota

CraiGc W. RICHARDS

Attorney General

123 Fourth Street

PO Box 110300

Juneau, AK 99811

Counsel for Amicus Curiae

State of Alaska

31

CYNTHIA H. COFFMAN

Attorney General

1300 Broadway, 10th Floor

Denver, CO 80203

Counsel for Amicus Curiae

State of Colorado

MARTY J. JACKLEY

Attorney General

STATE OF SOUTH DAKOTA

1302 E. Highway 14, Suite 1

Pierre, SD 57501

Counsel for Amicus Curiae

State of South Dakota

DOUGLAS J. PETERSON

Attorney General

DAVE BYDALEK

Deputy Attorney General

JUSTIN D. LAVENE

Assistant Attorney General

2115 State Capitol Building

PO Box 98920

Lincoln, NE 68509

Counsel for Amicus Curiae

State of Nebraska

LAWRENCE G. WASDEN

Attorney General

DOouGLAS M. CONDE

Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL

DEPARTMENT OF

ENVIRONMENTAL QUALITY

1410 N. Hilton, 2nd Floor

Boise, ID 83706

Counsel for Amicus Curiae

State of Idaho