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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0613%3A20. Public record. Not legal advice.