Amicus Curiae Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.

No. 18-260

In the

Supreme Court of the United States

________________

COUNTY OF MAUI,

v.

Petitioner,

HAWAI‘I WILDLIFE FUND, et al.,

________________

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

BRIEF FOR AMICI CURIAE KINDER

MORGAN ENERGY PARTNERS, L.P. AND

PLANTATION PIPE LINE COMPANY, INC.

IN SUPPORT OF PETITIONER

________________

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

C. HARKER RHODES IV

LAUREN N. BEEBE

KIRKLAND & ELLIS LLP

1301 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

Counsel for Amici Curiae

May 16, 2019

CORPORATE DISCLOSURE STATEMENT

Kinder Morgan Energy Partners, L.P. is 100%

owned by Kinder Morgan G.P., Inc., which is 100%

owned by Kinder Morgan, Inc. Plantation Pipe Line

Company, Inc. is 51% owned by Kinder Morgan

Energy Partners, L.P. and 49% owned by ExxonMobil

Corporation.

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............. i

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 6

I.

The CWA Does Not Apply To Discharges Into

Soil Or Groundwater ........................................... 6

A. Statutory Background. ................................. 6

B. The Text, Structure, and History of the

CWA All Confirm That the Statute Does

Not Regulate Soil or Groundwater

Pollution........................................................ 9

C. This

Court’s

Precedent

Likewise

Confirms That the CWA Does Not Reach

Discharges Into Soil and Groundwater ..... 17

II. Reading The CWA To Reach Discharges Into

Soil And Groundwater Would Create An

Unnecessary And Unworkable Regulatory

Scheme ............................................................... 19

A. Numerous State and Federal Regulatory

Regimes Already Cover Discharges Into

Soil and Groundwater ................................ 20

B. Extending the CWA to Groundwater

Pollution Would Create an Unworkable

and Incoherent Regulatory Scheme........... 26

CONCLUSION ......................................................... 34

iii

TABLE OF AUTHORITIES

Cases

Dodd v. United States,

545 U.S. 353 (2005)................................................ 20

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017).............................................. 9

Exxon Corp. v. Train,

554 F.2d 1310 (5th Cir. 1977).......................... 11, 15

Gwaltney of Smithfield, Ltd.

v. Chesapeake Bay Found.,

484 U.S. 49 (1987).................................................. 29

Kinder Morgan Energy Partners, L.P.

v. Upstate Forever,

No. 18-268 (U.S. filed Aug. 28, 2018) ...................... 2

Ky. Waterways All. v. Ky. Utils. Co.,

905 F.3d 925 (6th Cir. 2018).......................... passim

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014)................................................ 29

Meghrig v. KFC W., Inc.,

516 U.S. 479 (1996)................................................ 23

Or. Nat. Desert Ass’n v. U.S. Forest Serv.,

550 F.3d 778 (9th Cir. 2008).................................. 12

Rapanos v. United States,

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

Rice v. Harken Expl. Co.,

250 F.3d 264 (5th Cir. 2001)...................... 11, 14, 15

S. Fla. Water Mgmt. Dist.

v. Miccosukee Tribe of Indians,

541 U.S. 95 (2004).................................................. 12

iv

Sackett v. EPA,

566 U.S. 120 (2012)................................................ 28

Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133 (2005) ............................................. 13

Solid Waste Agency of N. Cook Cty.

v. U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001)............................................ 7, 15

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998).............................................. 5, 30

Tenn. Clean Water Network v. TVA,

905 F.3d 436 (6th Cir. 2018).......................... passim

Tri-Realty Co. v. Ursinus College,

124 F. Supp. 3d 418 (E.D. Pa. 2015) ..................... 13

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

136 S. Ct. 1807 (2016)........................................ 5, 28

Upstate Forever

v. Kinder Morgan Energy Partners, L.P.,

887 F.3d 637 (4th Cir. 2018).......................... passim

Vill. of Oconomowoc Lake

v. Dayton Hudson Corp.

24 F.3d 962 (7th Cir. 1994)........................ 11, 14, 15

Statutes

33 U.S.C. §1251(a) ................................................ 6, 12

33 U.S.C. §1251(b) ................................................ 7, 13

33 U.S.C. §1252(a) .................................................... 10

33 U.S.C. §1254(a) .................................................... 11

33 U.S.C. §1311 .................................................... 7, 31

33 U.S.C. §1329 ........................................................ 12

33 U.S.C. §1329(b) ................................................ 8, 21

v

33 U.S.C. §1342 .............................................. 9, 10, 12

33 U.S.C. §1362(7) ...................................................... 7

33 U.S.C. §1362(12) .......................................... passim

33 U.S.C. §1362(14) ........................................ 8, 11, 31

33 U.S.C. §1365(a) .................................................... 29

33 U.S.C. §2701(20) .................................................. 26

33 U.S.C. §2706 ........................................................ 26

42 U.S.C. §§6901 et seq. ............................................ 23

42 U.S.C. §300f et seq. .............................................. 25

42 U.S.C. §300h ........................................................ 26

42 U.S.C. §6903(3) .................................................... 23

42 U.S.C. §6903(27) ............................................ 24, 25

42 U.S.C. §6907(a) .................................................... 24

42 U.S.C. §9601 et seq. ............................................. 25

42 U.S.C. §9604(a) .................................................... 25

Ariz. Rev. Stat. §49-223 ............................................ 21

Ariz. Rev. Stat. §49-224 ............................................ 21

Ariz. Rev. Stat. §§49-241-252 ................................... 21

Colo. Rev. Stat. §25-8-103(19) .................................. 21

Colo. Rev. Stat. §25-8-501(1) .................................... 21

Ky. Rev. Stat. §224.1-300(6)..................................... 21

Ky. Rev. Stat. §224.70-110 ....................................... 21

Tex. Admin. Code §§350.1-.135 ................................ 22

Tex. Water Code Ann. §26.001(5) ............................ 22

Tex. Water Code Ann. §26.121(a) ............................ 22

W. Va. Code §22-11-3(23) ......................................... 22

W. Va. Code §22-11-8(b) ........................................... 22

vi

W. Va. Code §22-12-1 et seq. .................................... 22

Regulations

33 C.F.R. §323.2(h) ................................................... 28

40 C.F.R. §122.2........................................................ 10

80 Fed. Reg. 21,302 (Apr. 17, 2015) ................... 24, 25

84 Fed. Reg. 16,810 (Apr. 23, 2019) ................. passim

Other Authorities

118 Cong. Rec. 10,666 (1972) ................................... 14

EPA, Report to Congress, Disposal of

Hazardous Wastes (June 30, 1973)

available at https://bit.ly/2UTpxLI ....................... 24

EPA, Summary of Key Existing EPA

CERCLA Policies for Groundwater

Restoration, OSWER Directive 9283.1-33

(June 26, 2009), available at

https://bit.ly/2DE3bYO .......................................... 25

S. Rep. No. 92-414 (1971) ......................................... 14

State Contacts for Nonpoint Source (NPS)

Pollution Programs,

EPA, https://bit.ly/2GRKkLK

(last visited May 16, 2019) ................................ 9, 21

Superfund Groundwater Guidance and

Reports, EPA, https://bit.ly/2IRdm0r

(last visited May 16, 2019) .................................... 25

Water Pollution Control Legislation—1971

(Proposed Amendments to Existing

Legislation): Hearings before the Comm. on

Pub. Works, 92d Cong. 230 (1971)......................... 14

STATEMENT OF INTEREST 1

Amici are energy infrastructure companies with a

unique and substantial interest in the question

presented in this case. Indeed, amici have a pending

petition for certiorari (No. 18-268) raising the same

issue presented here and which was subject to a joint

invitation for the views of the Solicitor General. See

Order List (filed Dec. 3, 2018).

Kinder Morgan Energy Partners, L.P., is a

leading North American pipeline transportation and

energy storage company. Together with its corporate

parents and affiliates, it owns an interest in or

operates approximately 84,000 miles of pipelines that

transport natural gas, gasoline, crude oil, carbon

dioxide, and other products, and 157 terminals that

store and handle petroleum products and other

chemicals. Plantation Pipe Line Company, Inc.,

operates one of the largest pipelines for refined

petroleum products in the United States; its pipeline

network runs for approximately 3,180 miles from

Louisiana to Washington D.C., serving metropolitan

areas that include Birmingham, Alabama; Atlanta,

Georgia; and Charlotte, North Carolina. Amici thus

have a significant general interest in issues of federal

and state regulation that affect the energy

infrastructure industry.

1 Pursuant to Supreme Court Rule 37.6, amici curiae state that

no counsel for any party authored this brief in whole or in part

and that no entity or person, aside from amici curiae, their

members, and their counsel, made any monetary contribution

toward the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.3, counsel of record for all parties have

consented to this filing in letters on file with the Clerk’s office.

2

As noted, however, amici have a particular

interest in the issues raised here because they are the

petitioners in Kinder Morgan Energy Partners, L.P. v.

Upstate Forever, No. 18-268 (U.S. filed Aug. 28, 2018),

a pending petition that presents closely related

questions about the scope of the Clean Water Act

(“CWA”) as applied to discharges into soil and

groundwater. In that case, an underground pipeline

operated by amici developed a crack that leaked

gasoline and diesel into the surrounding soil and

groundwater. Amici fully repaired the leak within a

few days of discovering it and began extensive

remediation efforts under state supervision. Years

later, however, two environmental advocacy groups

sued amici under the CWA citizen-suit provision.

They alleged that the accidental discharge from the

pipeline into soil and groundwater violated the CWA

because that soil and groundwater were hydrologically

connected to nearby navigable waters; and they

claimed that this alleged violation was continuing,

even though the pipeline had been fully repaired years

earlier, because despite amici’s remediation efforts

some pollutants from the spill allegedly continued to

seep into nearby tributaries and wetlands.

The district court dismissed the complaint,

holding that the plaintiffs had failed to state any CWA

violation, let alone a continuing violation. But a

divided panel of the Fourth Circuit reversed, holding

that the CWA covers any discharge into groundwater

with a “direct hydrological connection” to navigable

waters, and that a CWA violation continues as long as

pollutants from the spill are still reaching navigable

waters. See Upstate Forever v. Kinder Morgan Energy

Partners, L.P., 887 F.3d 637 (4th Cir. 2018). The

3

pending Kinder Morgan petition seeks review of those

interrelated holdings. Because the resolution of those

questions turns on this Court’s interpretation of the

scope of the CWA, amici have an obvious and

substantial interest in the issues presented in this

case.

SUMMARY OF ARGUMENT

The CWA does not impose federal supervision

over any and all sources of pollution that conceivably

could affect any and all water quality. Instead,

Congress created a federal permitting system targeted

at a specific type of pollution released into a specific

type of water: the “discharge of pollutants,” meaning

“any addition of any pollutant to navigable waters

from any point source.” 33 U.S.C. §1362(12) (emphasis

added). For other forms of pollution, including diffuse

contamination of the soil and groundwater, Congress

made a deliberate judgment, informed by the nature

of our federal system, to leave the States with primary

responsibility to develop appropriate regulatory

programs tailored to local conditions.

The statutory text, structure, and history all

confirm that the CWA applies only to discharges from

a point source into navigable waters, not discharges

(or seepages) into soil or groundwater that eventually

filter into navigable waters. As a textual matter, the

statute covers only the addition of pollutants to

“navigable waters,” not soil or water seeping through

that soil deep underground.

And a number of

provisions of the CWA explicitly distinguish between

navigable waters and groundwater, making it even

more implausible to suggest that authority over the

former included authority over the latter. Reading the

4

statute to reach discharges into groundwater that

eventually pass into navigable waters would erase the

statutory distinction between those two concepts, as

well as the equally critical statutory distinction

between point-source and nonpoint-source pollution.

The history of the statute reinforces that

Congress consciously refrained from regulating

discharges into groundwater, choosing instead to

preserve traditional state authority over soil and

groundwater pollution. The usefulness of regulatory

authority over groundwater in regulating navigable

waters was not lost on the EPA when Congress was

debating the CWA. The then-Administrator made a

plea for broad authority over groundwater and was

rebuffed by a Congress disinclined to pursue the ends

of the CWA at the expense of basic principles of

federalism. Since that time, the agency responsible

for enforcing the statute has generally taken the same

view, interpreting the statute to categorically exclude

discharges into groundwater from its scope. And this

Court has already squarely rejected the broad-brush

approach to the CWA adopted by the Ninth Circuit

below and by the Fourth Circuit in Upstate Forever,

holding that Congress never meant for the CWA to

reach any and all water that happens to have some

hydrological connection to navigable waters. In short,

the traditional sources of statutory interpretation

uniformly demonstrate that the CWA covers only

discharges from a point source into navigable waters,

not soil and groundwater pollution.

That reading is further confirmed by

considerations both foundational and practical. Soil

and groundwater are not some jurisdictional no-man’s

5

land between pollution and navigable waters.

Instead, soil and groundwater are undoubted subjects

of traditional state and local regulation from time

immemorial. Thus, from a constitutional perspective

there is a world of difference between federal

regulation of navigable waters, and federal regulation

of soil and groundwater. State and local authority

over soil and groundwater is not just a matter of

constitutional theory. Numerous state and local

regulatory regimes (and even some federal ones)

already address soil and groundwater pollution,

making it unnecessary (and counterproductive) to

extend the CWA into that area. Still worse, the

atextual standards that the Fourth and Ninth Circuits

have proposed would create massive regulatory

confusion, aggravating the problems with this

“notoriously unclear” statute whose broad and illdefined scope has long proven to be “a cause for

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

136 S. Ct. 1807, 1816 (2016) (Kennedy, J., joined by

Thomas and Alito, JJ., concurring).

Distorting the CWA to reach discharges into

groundwater also leads to incongruous results, such as

the holdings in Upstate Forever and other cases that a

private plaintiff can allege an “ongoing violation” of

the CWA (and so can take advantage of the statute’s

citizen-suit provision) whenever some lingering

contamination is still seeping through groundwater

into navigable waters, even when the actual discharge

at issue ceased years ago. That problem has nothing

to do with Article III jurisdiction, see Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 91 (1998), and

everything to do with severing the link between the

discharge necessary for the statute to apply and

6

navigable waters covered by the CWA. And it creates

intractable practical problems as well, for the most

common circumstances in which the “hydrological

connection” theory has been employed (such as leaks

or coal ash ponds) do not involve any discharge at all,

but rather involve only the gradual migration or

seepage of pollutants into groundwater that

ultimately find their way to navigable waters. There

is no feasible way to “permit” the continuing migration

through groundwater of pollutants from a long-agoceased pipeline leak, or the diffuse seepage into soil of

pollutants at the bottom of an ash pond. Proving the

point, the remedy plaintiffs have sought in such cases

is not for the defendant to get the permit that they

have been sued for failing to obtain, but for a federal

court to wrest regulatory and remedial control from

the States.

In short, extending the CWA permitting regime to

a context for which it plainly was not designed will

create nothing but frustration and confusion for

regulators, regulated entities, and courts. This Court

should reject that impractical and statutorily

unsupported approach, reverse the decision below,

and restore the CWA to its intended scope.

ARGUMENT

I.

The CWA Does Not Apply To Discharges Into

Soil Or Groundwater.

A. Statutory Background.

Congress enacted the Clean Water Act to “restore

and maintain the chemical, physical, and biological

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

The statute creates a regulatory scheme that respects

our federal structure by dividing the authority to

7

regulate water pollution between the federal

government and the States. As Congress intended,

that scheme “protect[s] the primary responsibilities

and rights of States to prevent, reduce, and eliminate

pollution, [and] to plan the development and use … of

land and water resources,” id. §1251(b), while also

providing for direct federal regulation of navigable

waters, which are a classic—indeed, the classic—

channel of interstate commerce.

1. The CWA prohibits “the discharge of any

pollutant by any person,” except as otherwise

permitted by the Act. 33 U.S.C. §1311. Such a

“discharge of any pollutant” is the basic concept that

triggers the CWA’s coverage and the possibility of

obtaining a permit.

Not surprisingly, the Act

specifically defines that phrase as “any addition of any

pollutant to navigable waters from any point source.”

Id. §1362(12). As relevant here, that definition

establishes two important limitations on the scope of

federal regulation under the CWA.

First, the federal prohibition on the “discharge of

any pollutant” extends only to pollutants discharged

“to navigable waters,” which the CWA defines as “the

waters of the United States.” Id. §1362(7). While the

federal government has sometimes given that phrase

an expansive reading, this Court has repeatedly

cabined federal jurisdiction to maintain the balance

struck by Congress in enacting the CWA. See, e.g.,

Rapanos v. United States, 547 U.S. 715 (2006); Solid

Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Eng’rs (“SWANCC”), 531 U.S. 159 (2001).

The

statutory focus on navigable waters makes clear that

the CWA leaves the States with primary authority

8

over discharges of pollution into the soil and

groundwater, in accordance with the States’

traditional primacy over local land regulation and

with Congress’ understanding that soil and

groundwater pollution would be better supervised at

the local level. See, e.g., Interpretive Statement on

Application of the Clean Water Act National Pollutant

Discharge Elimination System Program to Releases of

Pollutants from a Point Source to Groundwater, 84

Fed. Reg. 16,810, 16,813 (Apr. 23, 2019) (recognizing

Congress’ “intent to leave the regulation of

groundwater wholly to the states”).

Second, the federal prohibition extends only to

discharges from a “point source,” which the CWA

defines as “any discernible, confined and discrete

conveyance … from which pollutants are or may be

discharged,” including but not limited to “any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft.” 33 U.S.C.

§1362(14).

That limitation codifies another

federalism-preserving dichotomy:

Point-source

discharges from discrete, identifiable conveyances to

navigable waters are covered by §1311 and regulated

through the federal permitting system in §1342

(described below).

By contrast, nonpoint-source

discharges such as surface runoff and diffuse

groundwater pollution are left to regulation by state

management programs, which are established by the

States subject to federal approval. See 33 U.S.C.

§1329(b); 84 Fed. Reg. at 16,813 (explaining that

“Congress reserved to states their exclusive role in

regulating nonpoint source pollution”). All 50 States

have adopted such programs. See State Contacts for

9

Nonpoint Source (NPS) Pollution Programs, EPA,

https://bit.ly/2GRKkLK (last visited May 16, 2019).

2. The CWA also establishes a federal permitting

program, known as the National Pollutant Discharge

Elimination System (“NPDES”), to allow regulated

discharges that otherwise would be prohibited under

§1311. 33 U.S.C. §1342. Like §1311, the NPDES

permitting requirements apply only to the “discharge

of any pollutant” as the statute defines that phrase—

that is, discharges from point sources to navigable

waters. See §1342(a). Conversely, discharges from

nonpoint sources and discharges into features other

than navigable waters do not require an NPDES

permit. Id. NPDES permits can be issued either

directly by EPA, §1342(a), or by the States through

EPA-approved state permitting programs, §1342(b).

B. The Text, Structure, and History of the

CWA All Confirm That the Statute Does

Not Regulate Soil or Groundwater

Pollution.

This case presents a simple question of statutory

interpretation:

whether the federal regulatory

scheme established by the CWA applies only to

discharges into navigable waters, or also extends to

discharges into soil or groundwater that eventually

find their way into navigable waters. That question

has an equally simple answer, as the text, structure,

and history of the CWA all confirm that the statute

reaches only the former and not the latter.

1. The statutory analysis “begin[s], as always,

with the text.” Esquivel-Quintana v. Sessions, 137

S. Ct. 1562, 1568 (2017). In this case, the statutory

text is straightforward: The CWA limits the scope of

10

its permitting requirement by expressly defining the

“discharge of a pollutant” to mean only the “addition

of any pollutant to navigable waters from any point

source.”

33 U.S.C. §1362(12) (emphasis added).

Under the plain language of that definition, a

discharge into soil or groundwater falls outside the

scope of the CWA because neither soil nor

groundwater constitutes “navigable waters.”

As noted above, the CWA defines “navigable

waters” as “the waters of the United States,” a term

whose “only plausible interpretation … includes only

those relatively permanent, standing or continuously

flowing bodies of water forming geographic features

that are described in ordinary parlance as streams,

oceans, rivers, and lakes.” Rapanos, 547 U.S. at 739

(plurality opinion) (alterations omitted).

While

“waters of the United States” may encompass some

features that would not be conventionally described as

“navigable”—such as permanent wetlands abutting

rivers or lakes, see id. at 734-35—it most certainly

does not encompass soil or water seeping through that

soil deep underground. On the contrary, the NPDES

permitting program regulates only discharges into

“navigable waters” and makes no mention whatsoever

of discharges into groundwater. 33 U.S.C. §1342; see

also 40 C.F.R. §122.2 (for purposes of the CWA,

“waters

of

the

United

States”

excludes

“groundwater”); 84 Fed. Reg. at 16,814-15 (analyzing

relevant statutory provisions).

That exclusion is telling, as several provisions of

the CWA expressly distinguish between “ground

waters” and “navigable waters.” See, e.g., 33 U.S.C.

§1252(a) (“navigable waters and ground waters”);

11

§1254(a)(5) (same); see also 84 Fed. Reg. 16,816-17

(discussing

CWA

provisions

that

address

groundwater). That textual distinction makes it

unsurprising that numerous courts have recognized

that the CWA does not “assert[] authority over ground

waters,” whether or not they are “hydrologically

connected with surface waters.” Vill. of Oconomowoc

Lake v. Dayton Hudson Corp. 24 F.3d 962, 965 (7th

Cir. 1994); see also, e.g., Rice v. Harken Expl. Co., 250

F.3d 264, 272 (5th Cir. 2001) (noting “Congress’s

decision to leave the regulation of groundwater to the

States”); Exxon Corp. v. Train, 554 F.2d 1310, 1324

(5th Cir. 1977) (explaining that “Congress meant to

stop short of establishing federal controls over

groundwater pollution” and allow the States to

“retain[] control of their own groundwater pollution

control programs”).

2. The statutory structure reinforces that

conclusion. Reading the CWA to cover the seepage of

pollutants through soil and groundwater would not

only erase the line that the CWA draws between

navigable waters and groundwater, but would also

disrupt the statute’s fundamental and federalismpreserving distinction between point- and nonpointsource pollution.

Congress carefully confined the CWA’s permitting

scheme to discharges “from any point source,” defined

as a “discernible, confined and discrete conveyance”

like a pipe or tunnel, as opposed to nonpoint sources

like rainwater runoff from roads or diffuse

underground seepage. 33 U.S.C. §1362(12), (14). Like

the distinction between groundwater and navigable

waters, the distinction between point and nonpoint

12

sources pervades the CWA. The statute expressly and

repeatedly distinguishes between point-source

pollution, which it regulates, and nonpoint-source

pollution, which it leaves to the States and other

statutes. See Or. Nat. Desert Ass’n v. U.S. Forest Serv.,

550 F.3d 778, 780 (9th Cir. 2008) (recognizing the

CWA’s “disparate treatment of discharges from point

sources and nonpoint sources” as an “organizational

paradigm of the Act”). For point sources, the CWA

establishes the NPDES permitting program, see 33

U.S.C. §1342; for nonpoint sources, the CWA gives the

States guidance on how to monitor such pollution, but

ultimately leaves the States free to undertake that

monitoring and remediation, id. §1329; see id.

§1251(a)(7) (urging States to adopt “programs for the

control of nonpoint sources of pollution”); 84 Fed. Reg.

at 16,813 (recognizing that the CWA “reserved to

states their exclusive role in regulating nonpoint

source pollution”).

Treating discharges into soil or groundwater that

then seep into navigable waters as point-source

pollution would eliminate that critical distinction. As

this Court has made clear, the defining feature of a

point source is that it “transport[s]” or “convey[s] the

pollutant to navigable waters.” S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 105

(2004). The diffuse movement of pollutants through

groundwater plainly does not fit that bill. To the

extent discharges into soil or groundwater find their

way to navigable waters, the only thing that “conveys”

them is the groundwater itself. But for the fact that

groundwater moves, the discharge would stay put.

But diffuse groundwater is hardly a “discernible,

confined and discrete conveyance,” which is why

13

numerous courts have recognized that “the CWA’s text

forecloses an argument that groundwater is a point

source.” Ky. Waterways All. v. Ky. Utils. Co., 905 F.3d

925, 933 (6th Cir. 2018); see also, e.g., Sierra Club v.

El Paso Gold Mines, Inc., 421 F.3d 1133, 1140 n.4

(2005) (“[g]roundwater seepage” is “nonpoint source

pollution, which is not subject to NPDES permitting”);

Tri-Realty Co. v. Ursinus College, 124 F. Supp. 3d 418,

472 (E.D. Pa. 2015) (“diffuse groundwater migration is

not point source pollution”). Reading the CWA to

reach discharges that are later carried by

groundwater into navigable waters would collapse the

distinction between point-source and nonpoint-source

pollution, upending the carefully calibrated division of

federal and state authority that Congress designed.

3. The history of the CWA likewise reinforces that

Congress never intended this statute to regulate

groundwater pollution. As the statute itself says, the

“policy of the Congress” in enacting the CWA was “to

recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce,

and eliminate pollution, [and] to plan the development

and use … of land and water resources.” 33 U.S.C.

§1251(b) (emphasis added). To that end, Congress

considered and specifically rejected proposals to

extend federal authority under the CWA to reach

discharges into groundwater.

For instance, then-EPA-Administrator William

Ruckelshaus

specifically

requested

statutory

authority to regulate discharges into groundwater in

order to better regulate the quality of navigable

waters by exercising “control over all the sources of

pollution, be they discharged directly into any stream

14

or through the ground water table.” Water Pollution

Control Legislation—1971 (Proposed Amendments to

Existing Legislation): Hearings before the Comm. on

Pub. Works, 92d Cong. 230 (1971) [hereinafter

Hearings] (emphasis added). Individual legislators

took the same view, suggesting that Congress should

authorize “Federally approved standards for

groundwaters which permeate rock[,] soil, and other

subsurface formations,” S. Rep. No. 92-414, at 73

(1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3739; see

also 118 Cong. Rec. 10,666 (1972) (proposal to extend

NPDES permitting to groundwater because “ground

water gets into navigable waters”).

But while

Congress recognized the connections between

groundwater and surface-water pollution, it

repeatedly rejected those requests, finding regulation

of groundwater pollution a matter better left to the

States. S. Rep. No. 92-414, at 73, reprinted in 1972

U.S.C.C.A.N. at 3739; see also, e.g., 118 Cong. Rec.

10,666, 10,669 (rejecting by a 34-86 vote an

amendment to “bring[] ground water into the subject

of the [CWA]”); 84 Fed. Reg. at 16,815-16 (discussing

relevant history).

Those proposals were rejected not because anyone

disputed the premise that jurisdiction over

groundwater would be useful in regulating navigable

waters, but because our federalist structure elevates

some values above regulatory efficiency, and Congress

consciously preserved our federalist system in the

CWA.

Congress “was aware that there was a

connection between ground and surface waters,” yet

unequivocally “[left] the regulation of groundwater to

the States.” Rice, 250 F.3d at 271-72; see Oconomowoc

Lake, 24 F.3d at 965. Particularly given that history,

15

the CWA cannot be read to achieve precisely the result

Congress worked so carefully to avoid based largely on

arguments Congress considered and rejected.

Interpreting the statute to reach every discharge that

finds its way to navigable waters, including discharges

directly into soil and groundwater, might well be the

most efficient regime for preserving the quality of

navigable waters, but it would also bring “virtually all

planning of the development and use of land and water

resources by the States under federal control,” and

“result in a significant impingement of the States’

traditional and primary power over land and water

use.” Rapanos, 547 U.S. at 737-38 (plurality opinion)

(alterations omitted) (quoting SWANCC, 531 U.S. at

174). Congress undoubtedly cared about promoting

water quality but manifestly did not intend to effect

such an “unprecedented intrusion into traditional

state authority.” Id. at 738.

4. That understanding of the text, structure, and

history of the CWA has been adopted not only by

numerous judicial opinions interpreting the CWA, see,

e.g., Tenn. Clean Water Network v. TVA, 905 F.3d 436,

442-46 (6th Cir. 2018); Ky. Waterways, 905 F.3d at

932-38; Rice, 250 F.3d at 268-72; Oconomowoc Lake,

24 F.3d at 964-66; Exxon Corp., 554 F.2d at 1318-31,

but (albeit after some equivocation) by the agency

responsible for enforcing the statute. In April 2019,

after providing notice and an opportunity for

comment, EPA issued an interpretive statement

explaining its view that the CWA “is best read as

excluding all releases of pollutants from a point source

to groundwater from NPDES program coverage,

regardless of a hydrologic connection between the

groundwater and jurisdictional surface water.” 84

16

Fed. Reg. at 16,810. The agency reached that

conclusion—intended to definitively resolve its own

“mixed record” on the issue—after conducting a

“holistic analysis of the statute, its text, structure, and

legislative history,” informed by “over 50,000

comments … from a wide audience representing state

governments, local governments, tribes, industry,

environmental organizations, academia, and private

citizens.” Id. at 16,810-11. Based on its own analysis

and its review of the numerous comments it received,

the agency concluded that interpreting the CWA to

exclude discharges into groundwater from the scope of

the NPDES program was “the best, if not the only,

reading of the CWA” and “more consistent with

Congress’s intent than other interpretations of the

Act.” Id. at 16,811.

In reaching that conclusion, EPA specifically

considered and disagreed with the reasoning of the

Ninth Circuit’s decision below and the Fourth

Circuit’s decision in Upstate Forever.

As EPA

explained, those decisions “expand the Act’s coverage

beyond what Congress envisioned,” “contravene

Congress’s intent to leave regulation of all releases of

pollutants to groundwater to states,” and “stretch the

Act’s carefully constructed program … beyond a point

that Congress would recognize.”

Id. at 16,823.

Instead, the text, structure, and history of the CWA

demonstrate that Congress “intentionally chose to

exclude all releases of pollutants to groundwater from

the NPDES program, even where pollutants are

conveyed to jurisdictional surface waters via

groundwater.” Id. at 16,811. That careful analysis by

the agency that Congress tasked with interpreting

and enforcing the CWA further confirms that the

17

statute cannot and should not be read to regulate

discharges into groundwater.

C. This

Court’s

Precedent

Likewise

Confirms That the CWA Does Not Reach

Discharges Into Soil and Groundwater.

Both the Ninth Circuit panel below and the

divided Fourth Circuit panel in Upstate Forever

sought support from this Court’s decision in Rapanos,

suggesting that the plurality opinion there endorses

the view that the CWA reaches discharges into soil or

groundwater that eventually seep into nearby

navigable waters. See Pet.App.21-22; Upstate Forever,

887 F.3d 649-50. That suggestion is sorely mistaken.

In Rapanos, this Court considered whether the

“waters of the United States” governed by the CWA

included certain wetlands. The Sixth Circuit found

those wetlands covered because there were

“hydrological connections between all three sites and

corresponding adjacent tributaries of navigable

waters.” 547 U.S. at 730. This Court reversed, with a

four-Justice plurality concluding that only wetlands

with a “continuous surface connection” to navigable

waters are covered by the CWA, id. at 757, and Justice

Kennedy concluding that a “significant nexus” is

required, id. at 759 (Kennedy, J., concurring in the

judgment). The plurality opinion explained that its

narrower interpretation was required by the statutory

text, as well as the need to preserve the federal-state

balance Congress intended. Id. at 731-39. The

plurality further explained that there was “no reason

to suppose” its interpretation would undermine

enforcement of the CWA because lower courts had

read the statute to apply “even if the pollutants

18

discharged from a point source do not emit ‘directly

into’ covered waters, but pass ‘through conveyances’ in

between.” Id. at 743.

As the context makes clear, the plurality was

making only the unremarkable point that a discharge

is covered by the CWA not only when the initial point

source discharges directly into navigable waters, but

also when the discharge travels through a series of

“conveyances”—i.e.,

other

point

sources—into

navigable waters. Id.; see Ky. Waterways, 905 F.3d at

936 (Rapanos plurality “explain[ed] that pollutants

which travel through multiple point sources before

discharging into navigable waters are still covered by

the CWA”). A pipe that discharges to a culvert that

discharges to a ditch that discharges to navigable

water is still within the scope of the CWA, even though

that pipe itself does not discharge into the stream. See

Rapanos, 547 U.S. at 743 (plurality opinion) (citing

examples of discharges from point sources into pointsource conveyances leading to navigable waters).

That is manifestly not the same thing as saying that

the CWA also extends to discharges into soil or

groundwater, neither of which constitute navigable

waters or discrete point-source conveyances into

navigable waters, and both of which (in

contradistinction from both navigable waters and

discrete conveyances into navigable waters) are

traditional objects of state and local regulation. See

Ky. Waterways, 905 F.3d at 936 (explaining that the

Rapanos plurality “sought to make clear that

intermediary point sources do not break the chain of

CWA liability,” not to extend the CWA to point-sourceto-nonpoint-source discharges); Tenn. Clean Water,

905 F.3d at 444-45 (same).

19

The actual holding of Rapanos, moreover,

forecloses reading the CWA to extend to discharges

into soil or groundwater that have a “fairly traceable”

connection or “direct hydrological connection” to

nearby navigable waters.

Contra Pet.App.21-24;

Upstate Forever, 887 F.3d at 649-51. After all,

Rapanos specifically reversed the Sixth Circuit for

holding that “hydrological connections” to nearby

navigable waters were enough to subject wetlands to

the CWA. 547 U.S. at 730-31, 757; id. at 784

(Kennedy, J., concurring in the judgment) (rejecting

“hydrologic connection” test). Rapanos thus makes

clear that Congress did not intend the CWA to reach

as broadly as the decision below and the Fourth

Circuit have held, and specifically did not intend that

statute to regulate discharges into soil or groundwater

just because the discharged pollutants may eventually

find their way into navigable waters.

II. Reading The CWA To Reach Discharges Into

Soil And Groundwater Would Create An

Unnecessary And Unworkable Regulatory

Scheme.

Despite the statutory text, structure, and history,

the Fourth and Ninth Circuits believed it necessary to

extend the CWA beyond its prescribed bounds to

prevent polluters from evading liability “by ensuring

that all discharges pass through soil and ground water

before reaching navigable waters.” Upstate Forever,

887 F.3d at 652; see Pet.App.31 (asserting that if

polluters could emit discharges “indirectly … to avoid

CWA liability,” it would “make a mockery of the

CWA’s prohibitions”). Of course, courts have no

business “rewrit[ing] the statute that Congress has

20

enacted” to address some perceived regulatory gap.

Dodd v. United States, 545 U.S. 353, 359 (2005). But

even if that were a proper judicial role, the limitation

on federal CWA authority was fully intentional and

the gap perceived by the Fourth and Ninth Circuits is

illusory. Congress understood both that what stood

between the EPA and its regulation of navigable

waters (namely soil and groundwater) was not some

jurisdictional no-man’s land, but an area of traditional

state and local control. Congress also understood that

existing state and federal regulatory regimes already

provide “sufficient legal authority to address releases

of pollutants to groundwater … without expanding the

CWA’s regulatory reach beyond what Congress

envisioned.” 84 Fed. Reg. at 16,823. And distorting

the CWA to reach soil and groundwater pollution is

not only constitutionally problematic and redundant,

but unworkable, as the statute’s permitting scheme

cannot be sensibly applied to that kind of diffuse

pollution. There is no practical reason to give the

CWA the expansive reading that the Fourth and

Ninth Circuits have adopted, and every reason to

reject that infeasible approach.

A. Numerous State and Federal Regulatory

Regimes Already Cover Discharges Into

Soil and Groundwater.

To begin, there is no need to artificially extend the

CWA to address discharges into soil and groundwater,

as any such discharges are already subject to

abundant regulation by states and localities with

traditional regulatory authority over soil and

groundwater.

The Ninth and Fourth Circuit

proceeded as if all that stood between the EPA and

21

navigable waters was some buffer zone that interfered

with efficient federal regulation.

But Congress

understood that the soil and groundwater were not

some jurisdictional vacuum, but an area of traditional

state and local regulation. And states and localities

have hardly been inactive in this area of traditional

authority. As the CWA itself envisions, the States

have taken the lead role in regulating soil and

groundwater pollution, with all 50 States adopting

various programs (sometimes subject to federal

oversight) to “control[] pollution added from nonpoint

sources to the navigable waters within the State.” 33

U.S.C. §1329(b)(1); see also State Contacts for NPS

Pollution Programs, EPA, https://bit.ly/2GRKkLK

(last visited May 16, 2019). Many of these state

programs specifically target groundwater pollution, in

keeping with Congress’ intent to “give states primacy

for regulating ubiquitous groundwater discharges” in

order to “regulate groundwater quality in the manner

best suited to their particular circumstances.” 84 Fed.

Reg. at 16,823-24.

To take but a few examples: Arizona has enacted

a state regulatory program focused on the protection

of its groundwater through a comprehensive aquifer

protection permitting program and water quality

standards. See Ariz. Rev. Stat. §§49-223-224, 49-241252.

Colorado law takes a similar approach,

prohibiting any unpermitted discharge of a statutorily

defined pollutant into any state waters, including any

“subsurface waters which are contained in or flow in

or through” the State. Colo. Rev. Stat. §§25-8-103(19),

25-8-501(1). Kentucky likewise prohibits unpermitted

discharges into “surface and underground” water. Ky.

Rev. Stat. §§224.1-300(6), 224.70-110.

Texas

22

implements its own state permitting regime overseen

by the Texas Commission on Environmental Quality,

regulating the “discharge [of] sewage, municipal

waste, recreational waste, agricultural waste, or

industrial waste into or adjacent to any water in the

state,” specifically including groundwater. Tex. Water

Code Ann. §§26.001(5), 26.121(a). The Texas Risk

Reduction

Program

also

includes

measures

specifically designed to address groundwater

contamination. See Tex. Admin. Code §§350.1-.135.

West Virginia’s Water Pollution Control Act broadly

protects “any and all water on or beneath the surface

of the ground” against unpermitted discharges of

“sewage, industrial wastes or other wastes, or the

effluent therefrom.” W. Va. Code §§22-11-3(23), 22-118(b)(1); see also Groundwater Protection Act, W. Va.

Code §22-12-1 et seq. (establishing state groundwater

management program). As this sample suggests,

similar state regulatory regimes focused on

groundwater protection are widespread across the

nation.

These state programs provide robust oversight

and enforcement. In fact, amici can attest to that from

direct experience, as they have worked closely with

the state agency tasked with regulating soil and

groundwater contamination (the South Carolina

Department of Health and Environmental Control) in

their extensive remediation efforts in South Carolina.

See Upstate Forever, 887 F.3d at 644; id. at 653 (Floyd,

J., dissenting); see also, e.g., Ky. Waterways, 905 F.3d

at 931-32 (explaining involvement of the Kentucky

Department of Environmental Protection in

regulating and monitoring soil and groundwater

contamination from coal ash ponds); 84 Fed. Reg. at

23

16,824 (describing other “state laws and regulations

that prohibit or limit discharges of pollutants to

groundwater”).

These state programs are complemented by

federal statutes that (unlike the CWA) are specifically

focused on soil and groundwater pollution. See 84 Fed.

Reg. at 16,824-26 (describing relevant federal

statutes).

The “explicit provisions addressing

discharges to groundwater in these statutes” make

clear that Congress has already “directly address[ed]

the issue of groundwater quality in specific federal

programs,” making it doubly unnecessary to stretch

the CWA to regulate discharges that other state and

federal laws already cover. Id. at 16,824; see Tenn.

Clean Water, 905 F.3d at 445 (explaining that

“Congress specifically designed other environmental

statutes to partner with the CWA,” and “allowing the

CWA to cover [discharges to groundwater] would

disrupt the existing regulatory framework”).

The Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §§6901 et seq., provides one

striking example. That statute is designed to regulate

waste management in order to “reduce the generation

of hazardous waste and to ensure the proper

treatment, storage, and disposal of that waste which

is nonetheless generated.” Meghrig v. KFC W., Inc.,

516 U.S. 479, 483 (1996). Unlike the CWA, which

reaches only discharges to navigable waters, RCRA

expressly covers discharges of waste “into any waters,

including ground waters.” 42 U.S.C. §6903(3). That

difference in language is no mere happenstance; on

the contrary, RCRA (which was enacted four years

after the CWA) was specifically intended to extend

24

beyond the CWA by regulating not only “runoff into

navigable waters” but also “migration into

groundwater supplies.” EPA, Report to Congress,

Disposal of Hazardous Wastes 19 (June 30, 1973)

available at https://bit.ly/2UTpxLI; see 42 U.S.C.

§6907(a)(2) (addressing “protection of the quality of

ground waters”); 84 Fed. Reg. at 16,825 (explaining

that RCRA “include[s] provisions for federal

regulation of discharges into groundwater, to protect

groundwater quality from the discharge of solid and

hazardous wastes”).

At the same time, RCRA “explicitly exempts from

its coverage any pollution that is subject to CWA

regulation.” Ky. Waterways, 905 F.3d at 937 (citing 42

U.S.C. §6903(27)). Accordingly, if the CWA were

interpreted to extend to discharges of waste into

groundwater, those discharges “would be exempted

from RCRA’s coverage,” id. at 938—taking them

outside the scope of the statute specifically designed to

handle them. That cannot be what Congress intended.

Id.; see Tenn. Clean Water, 905 F.3d at 445.

Similar conflicts arise under the regulations that

EPA has issued to implement RCRA. For instance,

EPA has promulgated regulations that impose specific

groundwater

monitoring

and

remediation

requirements on surface impoundments and landfills

that store coal ash (also called “coal combustion

residuals”) produced by coal-burning power plants.

See 80 Fed. Reg. 21,302 (Apr. 17, 2015). Those

regulations require coal ash repositories to extensively

monitor nearby groundwater, and to “ensure that

groundwater contamination at new and existing [coal

ash repositories] will be detected and cleaned up as

25

necessary to protect human health and the

environment.” Id. at 21,396; see also id. at 21,404

(requiring additional monitoring if groundwater

contamination is detected above certain levels); 84

Fed. Reg. at 16,825. If the CWA were to reach

discharges from coal ash repositories into

groundwater, however, those discharges would be

exempted by statute from the very regulatory scheme

specifically designed to handle them. 42 U.S.C.

§6903(27); see Ky. Waterways, 905 F.3d at 938; Tenn.

Clean Water, 905 F.3d at 445-46 (explaining that

RCRA regulations, “not the CWA, is the framework

envisioned by Congress … to address the problem of

groundwater contamination” from coal ash ponds).

A number of other federal statutes specifically

regulate soil and groundwater pollution, underlining

the lack of any need to judicially extend the CWA into

this area.

For instance, the Comprehensive

Environmental

Response,

Compensation,

and

Liability Act (“CERCLA”), 42 U.S.C. §9601 et seq.,

governs the release of hazardous substances or other

pollutants into the environment (specifically defined

to include “ground water”). 42 U.S.C. §9601(8); see also

id. §9604(a)(1). CERCLA “provide[s] a variety of

mechanisms for EPA to address hazardous substances

in groundwater,” including the ability to issue

remediation orders and recover remediation costs. 84

Fed. Reg. at 16,825-26; see, e.g., EPA, Summary of Key

Existing EPA CERCLA Policies for Groundwater

Restoration, OSWER Directive 9283.1-33 (June 26,

2009), available at https://bit.ly/2DE3bYO; Superfund

Groundwater

Guidance

and

Reports,

EPA,

https://bit.ly/2IRdm0r (last visited May 16, 2019). The

Safe Drinking Water Act, 42 U.S.C. §300f et seq.,

26

likewise “contains provisions specifically aimed at

preventing

certain

types

of

groundwater

contamination,” including requirements for state

programs to regulate underground injection of fluids.

84 Fed. Reg. at 16,824; see, e.g., 42 U.S.C. §300h. And

the Oil Pollution Act provides yet another federal

regulatory scheme addressing pollution of soil and

groundwater, in the specific context of oil releases that

damage “natural resources” (explicitly defined to

include “ground water”). 33 U.S.C. §§2701(20), 2706.

In sum, there is already an extensive “mosaic of

laws and regulations that provide mechanisms and

tools for EPA, states, and the public to ensure the

protection of groundwater quality, and to minimize

related impacts to surface waters.” 84 Fed. Reg. at

16,824. Given those tailored regulatory schemes for

addressing discharges into soil and groundwater,

there is no plausible reason to fear that interpreting

the CWA according to its text and history will leave

polluters free to contaminate at will.

B. Extending the CWA to Groundwater

Pollution Would Create an Unworkable

and Incoherent Regulatory Scheme.

Reading the CWA to cover discharges into soil and

groundwater is not only unnecessary, but also

unworkable. Adopting a strained interpretation of the

statutory text to extend the CWA to such discharges

will produce massive regulatory uncertainty and

substantial unnecessary burdens for both regulators

and regulated parties.

1. As if to emphasize the confusion that would

result from interpreting the CWA to reach discharges

into groundwater, the two circuits that have

27

attempted that approach cannot even agree on how

the statute should apply in that context. In Upstate

Forever, the divided Fourth Circuit panel held that the

CWA extends to any discharges into groundwater with

a “direct hydrological connection” to navigable waters.

887 F.3d at 651. In the decision below, the Ninth

Circuit explicitly rejected that test for “read[ing] two

words into the CWA (‘direct’ and ‘hydrological’) that

are not there”—and then proceeded to adopt its own

atextual test, asking whether the discharge into

groundwater is “fairly traceable” to some later

contamination in navigable waters. Pet.App.24 n.3;

see Pet.App.25 (refusing to decide “when, if ever, the

connection between a point source and a navigable

water is too tenuous to support liability under the

CWA”). The fact that the Fourth and Ninth Circuits

cannot decide on a single consistent standard for

applying the CWA to discharges into groundwater is

an inevitable consequence of venturing forth without

statutory guidance and a strong signal that they

should not have been engaged in that atextual project

at all.

Worse still, neither the “fairly traceable” nor the

“direct hydrological connection” standard provides any

reliable definition of the discharges that fall within

the CWA’s scope, making it impossible for regulated

parties to know in advance if any given discharge will

need a NPDES permit. Indeed, the decision below

specifically refused to provide any clarity on the scope

of its “fairly traceable” standard, “leav[ing] for another

day the task of determining when, if ever, the

connection between a point source and a navigable

water is too tenuous to support liability under the

CWA.” Pet.App.25. That guess-at-your-own-peril

28

approach to CWA jurisdiction creates enormous

uncertainty for individuals and entities attempting to

determine whether sources that they own are covered.

Instead of providing the “clarity and predictability”

that is vitally important in this regulatory context,

Sackett v. EPA, 566 U.S. 120, 133 (2012) (Alito, J.,

concurring), the kind of nebulous standards adopted

below and by the Fourth Circuit will ensure that the

only certainty is increased regulatory confusion.

That confusion is especially problematic in this

context in light of the substantial burden required to

obtain a NPDES permit and the even more substantial

penalties for failing to obtain a required permit. As

this Court has recognized, the costs of obtaining a

NPDES permit “are significant.” Hawkes, 136 S. Ct.

at 1812. Applications for a “general” permit, used for

activities that “cause only minimal individual and

cumulative environmental impacts,” 33 C.F.R.

§323.2(h), consume, on average, 313 days of time and

$28,915 of capital. Hawkes, 136 S. Ct. at 1812. For a

specialized “individual” permit, the average

application time increases to 788 days, and the

average cost of completing the application (not

including the cost of any mitigation or design changes)

jumps nearly tenfold to $271,596. Id. The penalties

for failing to obtain a required permit can include civil

penalties of over $50,000 per day for each violation,

and criminal penalties ranging from a minimum of

$2500 up to a maximum of $500,000 for an individual

or $2 million for an organization. Given the enormous

costs of compliance and sizable penalties for

noncompliance, there must be a clear line that will

enable potentially regulated entities to determine in

advance whether a NPDES permit is required—not an

29

utterly unpredictable standard that will force them to

choose between obtaining a costly permit they should

not need and risking massive fines for discharges the

CWA was not meant to cover.

2. Expanding the definition of a CWA violation to

encompass all pollutants that eventually make their

way into navigable waters would also distort other

aspects of the statutory scheme. In Upstate Forever,

for instance, the plaintiffs sued under the CWA’s

citizen-suit provision, which allows private parties to

bring a civil action against any person who is alleged

“to be in violation of” the statute. 33 U.S.C. §1365(a).

That language requires plaintiffs to demonstrate an

ongoing “continuous or intermittent violation” of the

CWA, rather than just “wholly past violations.”

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., 484 U.S. 49, 57 (1987).

That requirement has nothing to do with Article

III jurisdiction properly understood and everything to

do with private plaintiffs’ failure to state the kind of

claim required by the statute. Cf. Lexmark Int’l, Inc.

v. Static Control Components, Inc., 572 U.S. 118, 12528 (2014) (whether plaintiff “falls within the class of

plaintiffs whom Congress has authorized to sue” goes

to whether plaintiff “has a cause of action under the

statute,” not whether court has Article III

jurisdiction). Indeed, Justice Scalia writing for the

Court in Steel Co. dismissed the characterization of

the issue in Gwaltney as “jurisdictional” as a “drive-by

jurisdictional ruling” if not “dictum” (since nothing

turned on the label there), and underscored that “it is

fanciful to think that Gwaltney revised our established

jurisprudence that the failure of a cause of action does

30

not automatically produce a failure of jurisdiction.”

Steel Co., 523 U.S. at 91.

Thus, under any reasonable interpretation of the

CWA, the “ongoing violation” requirement should

have barred the citizen suit in Upstate Forever on the

merits, as the leak there was repaired two years before

the plaintiffs filed suit. But the Fourth Circuit

nevertheless found Gwaltney satisfied because some

detectable amount of contamination was continuing to

seep through groundwater into nearby navigable

waters, even though the actual discharge from the

only identifiable point source (the leak in the pipe) had

ceased years ago. Upstate Forever, 887 F.3d at 646-49.

That radical expansion of what constitutes an

“ongoing violation” of the CWA illustrates the absurd

consequences that follow from interpreting the statute

to focus on whether pollutants are finding their way to

navigable waters, instead of on whether they are being

discharged from a point source to navigable waters.

By substituting a “fairly traceable” or “direct

hydrological connection” test for the statutory

requirement of an actual discharge from a point source

into navigable waters, the decision below, the Fourth

Circuit’s decision in Upstate Forever, and other

decisions that have embraced the same faulty

reasoning allow courts to find ongoing violations

without any ongoing discharge. Indeed, in Tennessee

Clean Water, the district court found that a coal ash

pond that had been closed 20 years earlier and no

longer even contained any water constituted an

“ongoing” violation of the CWA, on the theory that

contaminants from the wooded site of the former

facility were continuing to find their way to navigable

31

waters “through rainwater vertically penetrating the

Site, groundwater laterally penetrating the Site, or

both.” Tenn. Clean Water, 905 F.3d at 440-41.

That scheme—under which the CWA continues to

be violated as long as pollutants are still “reaching

navigable waters,” Upstate Forever, 887 F.3d at 649—

is not remotely the statutory scheme that Congress

enacted.

It severs the connection between the

“discharge of any pollutant … to navigable waters

from any point source,” 33 U.S.C. §1362(12), and the

possibility of a permit for such discharges. See infra.

The lingering seepage through soil and groundwater

of pollutants from a long-ago-ceased spill or long-agoimpounded ash pond cannot plausibly be understood

as an “ongoing discharge” from a point source, which

should provide an independent basis for dismissal of

such suits for failure to state a claim.

3. Treating soil and groundwater pollution as

within the scope of the CWA would also pose

intractable practical problems. As the Upstate Forever

dissent observed, the NPDES permitting program is

hopelessly “ill-equipped to address … nonpoint source

pollution.” 887 F.3d at 657 (Floyd, J., dissenting).

NPDES permits are designed to regulate “discernible,

confined and discrete conveyance[s],” 33 U.S.C.

§1362(14), by imposing “effluent limitations” that

dictate how much of a given pollutant may be

discharged through those conveyances into navigable

waters, id. §1311(b)(1)(A). That system makes sense

in the context of discharges from identifiable point

sources to navigable waters, since effluent levels can

easily be measured at the point of discharge. But it

cannot be sensibly applied to regulate the seepage of

32

pollutants through diffuse underground channels that

ultimately carry groundwater into navigable waters.

Not only does the rate of seepage through soil or

groundwater

depend

on

countless

variable

hydrological factors, but if there is no identifiable

“discharge,” then there is no identifiable point at

which to measure the amount of pollutants leaving the

point source or entering navigable waters. The

obvious practical problems with trying to impose the

NPDES permitting program on soil and groundwater

pollution confirm that Congress never intended to fit

that square peg into this round hole.

The fundamental incongruence of applying the

CWA to soil and groundwater pollution is readily

evident in cases such as Upstate Forever, Kentucky

Waterways, and Tennessee Clean Water. It is not at all

clear how amici are supposed to apply for a NPDES

permit for the lingering seepage of long-ago-spilled

gasoline from a pipeline leak (in Upstate Forever), or

how coal plant operators are supposed to apply for a

NPDES permit for the diffuse migration of

contaminants from coal ash ponds through soil and

groundwater (in Kentucky Waterways and Tennessee

Clean Water). The NPDES permitting scheme simply

was not designed to measure and control that type of

diffuse pollution.

Of course, that is not lost on the plaintiffs who are

bringing these cases. To the contrary, those plaintiffs

unabashedly have invoked the CWA not to require

defendants to obtain a permit for controlled

discharges, but in hopes that a federal court will seize

jurisdiction over the pollution at issue and displace

ongoing state management and remediation efforts.

33

See Upstate Forever, 887 F.3d at 644 (citing plaintiffs’

displeasure with state-supervised monitoring and

remediation); Ky. Waterways, 905 F.3d at 931-32

(same); Tenn. Clean Water, 905 F.3d at 440-41 (same).

When plaintiffs have succeeded in convincing courts to

validate these claims, the results have been

predictably incongruous. In Tennessee Clean Water,

for instance, the plaintiffs challenged the adequacy of

state efforts to address the seepage of lingering

pollutants underneath a long-ago-closed Tennessee

Valley Authority (“TVA”) coal ash disposal site that is

now a heavily vegetated and wooded plot of land. See

905 F.3d at 439-41. After the district court ruled for

the plaintiffs, it did not order TVA to get an NPDES

permit for that seepage; it instead ordered TVA to

“fully excavate the coal ash,” by removing 13.8 million

cubic yards of earth, and “relocate it to a lined facility.”

Id. at 442. Whatever the propriety of such a remedy

under RCRA, CERCLA, or myriad state-law analogs,

when the remedy for a Clean Water Act violation is the

removal of 13.8 million cubic yards of earth something

has gone far off course.

* * *

The decision below conflicts with the text,

structure, and history of the CWA; with this Court’s

precedent; and with the views of the agency charged

with implementing the statutory scheme. It not only

will force regulators and regulated entities to waste

substantial resources on NPDES permits in

circumstances that Congress never intended, but

ultimately will drive the NPDES permitting scheme to

swallow whole the myriad state and federal regulatory

schemes designed to address soil and groundwater

34

contamination. Congress did not design the CWA to

solve all of the nation’s environmental problems. It

designed that statute to address only the one type of

pollution that the statutory text specifies:

the

discharge of pollutants from a point source to

navigable waters. Because the decision below extends

the CWA far beyond that intended scope, this Court

should reverse.

CONCLUSION

For the foregoing reasons, the Court should

reverse the judgment of the Ninth Circuit.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

C. HARKER RHODES IV

LAUREN N. BEEBE

KIRKLAND & ELLIS LLP

1301 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

Counsel for Amici Curiae

May 16, 2019