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

No. 18-260

IN THE

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COUNTY OF MAUI, HAWAII,

Petitioner,

v.

HAWAI‘I WILDLIFE FUND; SIERRA CLUB – MAUI GROUP;

SURFRIDER FOUNDATION;

WEST MAUI PRESERVATION ASSOCIATION

Respondents.

On Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

BRIEF FOR ENERGY TRANSFER PARTNERS,

L.P. AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

MIGUEL A. ESTRADA

Counsel of Record

WILLIAM S. SCHERMAN

DAVID DEBOLD

JASON FLEISCHER

MATTHEW S. ROZEN

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

MEstrada@gibsondunn.com

i

QUESTION PRESENTED

The Clean Water Act requires a permit for any

“discharge of pollutants” into navigable waters. 33

U.S.C. §§ 1311(a), 1342. This permitting requirement

applies only to pollutants discharged from a “point

source”—that is, “any discernible, confined and

discrete conveyance” such as a “pipe” or “container.”

Id. § 1362(12), (14). Pollutants discharged from a

nonpoint source such as groundwater or soil, by

contrast, are not covered by the Act. The question

addressed by amicus is whether the permitting

requirement nonetheless applies to the discharge of

pollutants from a point source to a nonpoint source if

the pollutants eventually migrate from the nonpoint

source to navigable waters.

ii

TABLE OF CONTENTS

Page

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

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

ARGUMENT ...............................................................2

I.

THE CLEAN WATER ACT DOES NOT REQUIRE

A PERMIT FOR DISCHARGING POLLUTANTS

INTO A NONPOINT SOURCE SUCH AS

GROUNDWATER OR SOIL ............................... 3

II. READING A PERMIT REQUIREMENT INTO THE

CLEAN WATER ACT FOR DISCHARGES INTO

GROUNDWATER OR SOIL WOULD INTERFERE

WITH COMMONPLACE, ENVIRONMENTALLY

SOUND “TRENCHLESS” CONSTRUCTION

METHODS FOR INSTALLING UNDERGROUND

UTILITY LINES ............................................ 10

CONCLUSION ..........................................................20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Constitution Pipeline Co. v. N.Y. State

Dep’t of Envtl. Conservation,

868 F.3d 87 (2d Cir. 2017) ................................... 15

Ecological Rights Found. v. Pac. Gas &

Elec. Co.,

713 F.3d 502 (9th Cir. 2013) .................................. 6

Rapanos v. United States,

547 U.S. 715 (2006) ................................................ 8

S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe,

541 U.S. 95 (2004) ........................................ 5, 9, 17

Sierra Club v. Abston Constr. Co.,

620 F.2d 41 (5th Cir. 1980) ................................ 5, 7

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

421 F.3d 1133 (10th Cir. 2005) .......................... 5, 6

U.S. Army Corps of Eng’rs v. Hawkes

Co.,

136 S. Ct. 1807 (2016) .......................................... 18

Upstate Forever v. Kinder Morgan

Energy Partners, L.P.,

887 F.3d 637 (4th Cir. 2018) ................................ 18

Statutes

33 U.S.C. § 1311(a) .............................................. 3, 4, 7

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

33 U.S.C. § 1312(a) ...................................................... 8

33 U.S.C. § 1319(c) ...................................................... 4

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

33 U.S.C. § 1329 .......................................................... 5

33 U.S.C. § 1342 .......................................................... 3

33 U.S.C. § 1342(a) ...................................................... 4

33 U.S.C. § 1344 ........................................................ 15

33 U.S.C. § 1362(6) ...................................................... 3

33 U.S.C. § 1362(11) .................................................... 8

33 U.S.C. § 1362(12) ............................................ 3, 4, 7

33 U.S.C. § 1362(14) .............................. 4, 5, 6, 7, 9, 16

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Amir Tambesh et al., Comparison of

Trenchless and Open-cut Methods for

Construction of an Underground

Freight Transportation (UFT)

System 4 (2016),

https://www.researchgate.net/

publication/311923220_Comparison_

of_Trenchless_and_Opencut_

Methods_for_Construction_of_an_

Underground_Freight_

Transportation_UFT_System ........................ 13, 14

Energy Transfer Explains Horizontal

Directional Drilling,

https://www.youtube.com/watch?v=

iwtbqeaxWc8 .................................................. 12, 16

ERIC R. SKONBERG ET AL., Inadvertent

Slurry Returns during Horizontal

Directional Drilling: Understanding

the Frequency and Causes, in THE

EIGHTH INTERNATIONAL SYMPOSIUM

ON ENVIRONMENTAL CONCERNS IN

RIGHTS-OF-WAY MANAGEMENT 613

(John W. Goodrich-Mahoney et al.

ed., 2008) .................................................. 12, 17, 18

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Federal Highway Administration,

Manual for Controlling and

Reducing the Frequency of Pavement

Utility Cuts,

https://www.fhwa.dot.gov/utilities/

utilitycuts/man04.cfm ............ 11, 12, 14, 16, 18, 19

FERC, Millennium Pipeline Co., LLC,

Eastern System Upgrade Project,

Environmental Assessment, FERC

Docket No. CP16-486-000 (Mar.

2017),

https://www.ferc.gov/industries/gas/

enviro/eis/2017/CP16-486-EA.pdf ............ 11, 12, 16

FERC, PennEast Pipeline Project, Final

Environmental Impact Statement

Vol. I, FERC Docket No. CP15-558000 (Apr. 2017),

https://www.ferc.gov/industries/gas/

enviro/eis/2017/04-07-17-FEIS/FinalEnvironmental-ImpactStatement.pdf....................................................... 19

Frank P. Grad, 2 Treatise on

Environmental Law § 3.03 ................................ 5, 7

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Iowa State Univ. Inst. for Transp., Iowa

Statewide Urban Design and

Specifications, Ch. 14 - Trenchless

Construction,

https://intrans.iastate.edu/app/

uploads/sites/15/2018/09/

Chapter_14-2017.pdf...................................... 13, 14

Kelly O. Maloney et al., Unconventional

oil and gas spills: Materials,

volumes, and risks to surface waters

in four states of the U.S., 581-582

SCI. OF THE TOTAL ENV’T 369 (2017),

https://www.sciencedirect.com/

science/article/pii/

S0048969716328327?via%3Dihub ................ 17, 18

Muhannad Suleiman et al., Iowa State

Univ., Identification of Practices,

Design, Construction, and Repair

Using Trenchless Technology (2010),

https://lib.dr.iastate.edu/intrans_

reports/64 ..................................... 11, 12, 13, 14, 18

FERC, Order Authorizing Abandonment and Issuing Certificate, Nw.

Pipeline Corp., FERC Docket Nos.

CP05-32-000 & CP05-32-001 (2005),

https://www.ferc.gov/CalendarFiles/

20050913171237-CP05-32-000.pdf ...................... 15

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

S. Rep. No. 95-370 (1977), as reprinted

in 1977 U.S.C.C.A.N. 4326 .................................... 6

U.S. Army Corps of Eng’rs, Decision Document,

Nationwide Permit 12 (Dec. 21, 2016),

https://usace.contentdm.oclc.org/utils/getfile/

collection/p16021coll7/id/6725 ............................. 15

INTEREST OF AMICI CURIAE1

Energy Transfer L.P. (“Energy Transfer”) owns

and operates one of the largest and most diversified

portfolios of energy assets in the United States.

Through its wholly owned subsidiaries and joint

ventures, Energy Transfer currently owns and

operates more than 86,000 miles of natural gas,

natural gas liquids, liquid natural gas, refined

products, and crude oil pipelines. These pipelines

form a critical part of the nation’s energy

infrastructure.

By facilitating efficient transportation, Energy Transfer’s pipelines enable

American energy producers to be more cost

competitive, boosting domestic energy production and

creating substantial benefits to producers, mineral

royalty owners including the United States, shippers,

and the American consumer.

Construction of new pipelines is a critical part of

Energy Transfer’s business and its contribution to the

American energy infrastructure. Energy Transfer has

been in the business of constructing new pipelines for

more than two decades, and has substantial

experience with the regulatory process for obtaining

pipeline construction approvals. Energy Transfer

regularly applies for and obtains permits for such

construction under the applicable federal and state

regulatory schemes, including the Clean Water Act.

1 Counsel for each party consented to the filing of this brief.

Pursuant to Rule 37.6, counsel for amicus represents that this

brief was not authored in whole or in part by counsel for a party

and that none of the parties or their counsel, nor any other person or entity other than amicus or its counsel made a monetary

contribution intended to fund the preparation or submission of

this brief.

2

As a result, Energy Transfer has substantial expertise

and a significant interest in the legal requirements

applicable to pipeline permitting and construction.

The question presented in this case is of particular

significance to companies like Energy Transfer

because, as explained herein, the decision below poses

a significant impediment to safe and more

environmentally friendly “trenchless” construction

methods that are routinely employed in the

construction of pipelines, power line projects, fiber

optic cable systems, and other utilities.

ARGUMENT

The Clean Water Act requires companies like

Energy Transfer to obtain a permit before discharging

any “pollutant” (a very broad term) from a “point

source” into navigable waters. By contrast, the Act’s

permit requirement does not apply to nonpoint source

discharges, which the Act reserves for regulation by

other means. Thus, by its terms and structure, the

Act does not require a permit to discharge any

pollutant from a point source to a nonpoint source, or

from a nonpoint source into navigable waters.

The court of appeals nonetheless held that anyone

who discharges pollutants from a point source into a

nonpoint source may be held liable for failing to obtain

a permit if some of that discharge eventually makes

its way from the nonpoint source to navigable waters

through natural processes such as seepage. Pet. App.

24. That ruling cannot be squared with the text or

structure of the Clean Water Act. If allowed to stand,

it will interfere with commonplace and environmentally preferable construction activities such as the

trenchless methods routinely employed by Energy

Transfer and others for the installation of pipelines,

3

power line projects, fiber optic cable systems, and

other utility lines across the country.

Congress did not intend to subject ordinary

construction

activities

to

costly

permitting

requirements merely because of their potential to

release safe levels of harmless substances into

groundwater or soil. This Court should therefore

reverse the decision below and hold that the Clean

Water Act does not require a permit for the discharge

of pollutants from a point source to a nonpoint source.

I.

THE CLEAN WATER ACT DOES NOT

REQUIRE A PERMIT FOR DISCHARGING

POLLUTANTS INTO A NONPOINT SOURCE

SUCH AS GROUNDWATER OR SOIL

The plain text of the Clean Water Act imposes no

requirement to obtain a permit for the discharge of

pollutants from a point source to a nonpoint source,

notwithstanding the possibility that pollutants

discharged to a nonpoint source may later migrate to

navigable waters.

The Act defines “pollutants” broadly. It includes

naturally occurring substances like “rock” or “sand.”

33 U.S.C. § 1362(6). And the definition encompasses

substances that, by their nature or given the

quantities involved, pose no harm to humans, wildlife,

or the environment more generally. See id. Given the

breadth of that definition, the Act expressly allows for

activities that result in the addition of pollutants to

navigable waters. This case centers on that feature of

the Act: i.e., the fact that it prohibits activities that

meet the statutory definition of “discharge of

pollutants” only if a particular permit has not issued.

Id. §§ 1311(a), 1342, 1362(12). Congress chose, in

other words, to include within the definition of

4

“pollutants” substances that can be safely released

into navigable waters.

Section 301(a) of the Act implements this feature

of the Act. It provides that “the discharge of any

pollutant by any person shall be unlawful” only if the

discharge is not “in compliance” with other specified

provisions of the Act. 33 U.S.C. § 1311(a). One of

those provisions, Section 402, establishes the

National Pollutant Discharge Elimination System

(“NPDES”), which authorizes the EPA or a state

program approved by the EPA to issue permits for

discharges “notwithstanding” Section 301(a). Id.

§ 1342(a). The “discharge of any pollutant” without

obtaining an NPDES permit, or in violation of the

terms of such a permit, is a crime, subject to steep

criminal or civil penalties. Id. § 1319(c), (d).

This permitting requirement applies only when

the relevant pollutant reaches navigable waters by

means of a “discernible, confined and discrete

conveyance”—referred to in the statute as a “point

source.”

33 U.S.C. §§ 1311(a), 1362(12), (14).

Specifically, the permit requirement is triggered by

activities that meet the statutory definition of a

“discharge of pollutants,” id. § 1311(a), defined as

“any addition of any pollutant to navigable waters”—

or to the ocean or coastal waters—“from any point

source.” Id. § 1362(12). The Act defines “point

source,” in turn, as “any discernible, confined and

discrete conveyance,” including, for example, any

“pipe, ditch, channel, tunnel, conduit, well, discrete

fissure,” or “container.” Id. § 1362(14).

The Act thus distinguishes between two means by

which pollutants could be conveyed to navigable

waters—point sources and nonpoint sources.

“Nonpoint sources include pollution from diffuse land

5

use activities such as agriculture, construction and

mining that enter the waters primarily through

indiscrete and less identifiable natural processes such

as runoffs, precipitation and percolation.” Frank P.

Grad, 2 Treatise on Environmental Law § 3.03

n.366.6.

The statute gives two examples:

“stormwater discharges and return flows from

irrigated agriculture.” 33 U.S.C. § 1362(14). Other

examples of nonpoint sources of pollutants include

groundwater and soil. See, e.g., Sierra Club v. El Paso

Gold Mines, Inc., 421 F.3d 1133, 1140 n.4 (10th Cir.

2005). The Act’s permit requirement does not cover

discharges of pollutants from a nonpoint source to

navigable waters. Nor does it apply to a discharge

from a point source to a nonpoint source. Instead,

discharges from nonpoint sources are regulated by

other statutes, including state management programs

overseen by the EPA, see 33 U.S.C. § 1329, and other

federal statutes.

The critical distinction between point source and

nonpoint source pollution is the “means by which

pollutants are ultimately deposited into a navigable

body of water.” Sierra Club v. Abston Constr. Co., 620

F.2d 41, 45 (5th Cir. 1980). As this Court has

recognized, the definition of point source turns not on

the “original source” of the pollutant, but rather the

means that “convey[s] the pollutant to ‘navigable

waters.’” S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe, 541 U.S. 95, 105 (2004). “Tellingly, the

examples of ‘point sources’ listed by the Act include

pipes, ditches, tunnels, and conduits, objects that do

not themselves generate pollutants but merely

transport them.” Id.

Conversely, the statutory examples of nonpoint

source pollution—stormwater discharges and return

6

flows from irrigated agriculture—are means of

conveying pollutants that may originally be conveyed

from a point source. The court of appeals gave the

example of “residue left on roadways by automobiles

which rainwater washes off the streets.” Pet. App. 14

(quoting Ecological Rights Found. v. Pac. Gas & Elec.

Co., 713 F.3d 502, 508 (9th Cir. 2013)) (alterations

omitted). But automobiles themselves may be point

sources; indeed, automobile tailpipes fall squarely

within one of the statutory examples of point

sources—a “pipe.” 33 U.S.C. § 1362(14). Yet the

statute expressly treats “stormwater discharges” as

nonpoint sources, id., and thus even the court of

appeals recognized that stormwater carrying

pollution from automobiles would not require a

permit. Pet. App. 14.

Similarly,

“return

flows

from

irrigated

agriculture” are nonpoint source pollution, even

though the pollutants they may carry to navigable

waters—such as fertilizer—were at some point stored

in or dispensed from a “container” or other point

source. 33 U.S.C. § 1362(14). The legislative history

of this provision confirms that Congress intended to

exempt such return flows “regardless of the manner

in which the flow was applied to the agricultural

lands.” S. Rep. No. 95-370, at 35 (1977), as reprinted

in 1977 U.S.C.C.A.N. 4326, 4360. The same is true of

other nonpoint sources like groundwater and soils.

See, e.g., El Paso Gold Mines, 421 F.3d at 1140 n.4.

These provisions make clear that an NPDES

permit is not required for a discharge from a point

source to a nonpoint source that later migrates to

navigable waters by “indiscrete and less identifiable

natural processes such as runoffs, precipitation and

7

percolation.” Grad, supra, § 3.03 n.366.6. If a nonpoint source is the “means by which pollutants are

ultimately deposited into a navigable body of water,”

Abston, 620 F.2d at 45, that pollutant is not

discharged “from [a] point source,” 33 U.S.C.

§ 1362(12), so no permit is required.

An analogy illustrates why the text and structure

of the statute, by distinguishing between these two

modes of conveyance, forecloses the Ninth Circuit’s

interpretation. Recall that the Act prohibits the

“addition of any pollutant to navigable waters” “from

any point source,” which the Act defines as “any

discernible, confined and discrete conveyance.” 33

U.S.C. §§ 1311(a), 1362(12), (14). Suppose the question was whether a person was conveyed by land

vehicle (substituting for point source) or air vehicle

(substituting for nonpoint source) from her Maui hotel

to a restaurant on the other side of the island. A

person who takes a taxi twenty miles from her hotel

to the restaurant would say she traveled by land

vehicle. The same is true for a traveler who takes a

taxi one mile to a bus stop, then takes a bus the next

twenty miles. But a person who instead takes a taxi

half a mile to a heliport, and then is conveyed by

helicopter to a landing pad near the restaurant would

not say she arrived (was conveyed) by land vehicle,

even though the trip began with a short taxi ride. So

too here. If a pollutant is discharged from a point

source (the taxi) to a nonpoint source (the helicopter)

and then migrates to navigable waters (the flight to

the restaurant), it cannot be said that the pollutants

8

were conveyed to navigable waters from a point

source.2

Other provisions of the Act confirm this

understanding. Section 302, for example, directs the

EPA to establish “effluent limitations” to maintain the

quality of specific waters. 33 U.S.C. § 1312(a). These

limitations are an important part of the permitting

regime. In fact, the Act defines “effluent limitations”

to include restrictions on the “quantities, rates, and

concentrations” of certain pollutants that may be

“discharged from point sources into navigable waters.”

Id. § 1362(11) (emphasis added). Congress thus

clearly had in mind permitting for discharges from a

point source “into” navigable waters, not discharges

conveyed by nonpoint sources to navigable waters.

This is the only plausible conclusion given that

the purpose of the point/nonpoint source distinction is

to determine whether a person must obtain a permit

before engaging in activity that may result in the

addition of pollutants to navigable waters.

A

permitting requirement is effective only if the

applicant knows in advance that the law requires a

permit and can meaningfully submit an application.

An NPDES permit specifies “the type and quantity of

2 The same analogy shows the flaw in the reliance by the court

of appeals on Justice Scalia’s plurality opinion in Rapanos v.

United States, 547 U.S. 715 (2006). Pet. App. 21-24. While expressly “not decid[ing] th[e] issue,” Justice Scalia suggested in

dicta that an NPDES permit might be required in some circumstances in which “pollutants discharged from a point source do

not emit ‘directly into’ covered waters.” Rapanos, 547 U.S. at

743. But as Petitioner has explained, Justice Scalia had in mind

only “point-source-to-point-source-to-navigable-water pollution”

(travel by taxi to a bus to a restaurant), not pollution that also

involves a nonpoint source (the helicopter). Pet’r’s Br. 33.

9

pollutants that can be released” into specific waters.

Miccosukee, 541 U.S. at 102. To apply for a permit,

therefore, an applicant must know in advance not only

that a discharge from a point source will make its way

to navigable waters, but also the quantity of the

discharge and the specific navigable water to which it

will be added.

The decision below, by contrast, rests the need for

a permit on an after-the-fact analysis: Discharging a

pollutant from a point source to a nonpoint source

requires a permit under the decision of the court of

appeals only if it is later determined that the pollutant

has migrated from the nonpoint source to navigable

waters. Pet. App. 15. To be sure, this was not a

problem for Petitioner because the court of appeals

determined that it knew ahead of time whether and to

what extent its discharges would reach the ocean. Id.

But the court also explained that the requirement to

obtain a permit, and the steep penalties for failing to

get one, are a matter of “‘strict liability’” and apply

even if the responsible party does not “inten[d]” or

know that the discharge would reach navigable

waters. Id. at 15 n.1.

This regime of strict liability makes no sense

when the pollutant does not reach navigable waters

solely by way of one or more “discernible, confined and

discrete conveyance[s].”

33 U.S.C. § 1362(14).

Pollutants discharged into nonpoint sources may take

unexpected paths, making it impossible to predict

that they will reach navigable waters and, if so, which

waters and in which quantities. In practice, therefore,

expanding the “discharges” covered by the Act to

include discharges from point sources to nonpoint

sources amounts not just to an extension of the

permitting requirement, but also an extension of

10

strict liability to activities for which permits must be

obtained. Because that outcome has no basis in the

statute, the decision below should be reversed.

II. READING A PERMIT REQUIREMENT INTO

THE CLEAN WATER ACT FOR DISCHARGES

INTO GROUNDWATER OR SOIL WOULD

INTERFERE WITH COMMONPLACE,

ENVIRONMENTALLY SOUND

“TRENCHLESS” CONSTRUCTION METHODS

FOR INSTALLING UNDERGROUND UTILITY

LINES

The lower court’s atextual interpretation of the

Clean Water Act has serious negative consequences

for commonplace activities that Congress did not

subject to a permit requirement. This case involves

just one of those activities: the use of septic tank

systems by municipalities and millions of homes in

the United States, which under the decision below

could be required to obtain NPDES permits at

prohibitive cost. Pet’r’s Br. 46-48. But there are

others. In particular, the decision below would make

it impractical to carry out routine construction of

utility lines using well-established and environmentally

preferable

“trenchless”

construction

methods. Use of these methods often causes small

quantities of naturally occurring “drilling mud” to

migrate through groundwater to navigable waters in

directions and quantities that cannot be predicted.

The decision below would subject such drilling

methods to steep criminal and civil penalties for

failure to obtain permits.

A. Trenchless construction methods such as

horizontal directional drilling are an increasingly

common technique used across a wide range of

11

industries to install utility lines beneath roads,

waterbodies, wetlands, urban areas, and other manmade or natural features, without disturbing the

surface. In contrast to “traditional open-cut methods

of utility pipe installation”—which “involve

excavating a trench along the proposed pipeline path

and placing the pipe in the trench”—trenchless

methods allow the installation of utility pipe with

“minimal surface excavation.” Muhannad Suleiman

et al., Iowa State Univ., Identification of Practices,

Design, Construction, and Repair Using Trenchless

Technology 3 (2010), https://lib.dr.iastate.edu/

intrans_reports/64.

Trenchless

construction

methods

include

“horizontal directional drilling,” “auger and slurry

boring,” “pipe jacking,” “microtunneling,” “impact

moling,” “ramming,” and “pipe bursting.” Federal

Highway Administration, Manual for Controlling and

Reducing the Frequency of Pavement Utility Cuts,

§ 4.1, https://www.fhwa.dot.gov/utilities/utilitycuts/

man04.cfm

(“FHWA

Manual”)

(capitalization

omitted). These different methods share “the common

advantage of reducing the impact to the surface” by

avoiding the need for open-cut trenches. Id. § 4.2.2.

The process for horizontal directional drilling

“involves drilling a pilot borehole under the

waterbody, or targeted feature, then enlarging that

borehole through successive reaming,” and once the

borehole is big enough, attaching pre-assembled

pipeline to the reaming tool and pulling the pipe

through the borehole back to the entry side. FERC,

Millennium Pipeline Co., LLC, Eastern System

Upgrade Project, Environmental Assessment, FERC

Docket No. CP16-486-000, at 27-28 (Mar. 2017),

12

https://www.ferc.gov/industries/gas/enviro/eis/2017/

CP16-486-EA.pdf (“Millennium EA”); see also Energy

Transfer Explains Horizontal Directional Drilling,

https://www.youtube.com/watch?v=iwtbqeaxWc8

(“Energy Transfer Video”) (illustrating the process).

“Because the construction footprint of [horizontal

directional drilling] generally is limited to work areas

on either side of the obstacle,” like a road or wetland,

this trenchless method “avoids disturbance” to

surrounding areas and activities. ERIC R. SKONBERG

ET AL., Inadvertent Slurry Returns during Horizontal

Directional Drilling: Understanding the Frequency

and Causes, in THE EIGHTH INTERNATIONAL

SYMPOSIUM ON ENVIRONMENTAL CONCERNS IN RIGHTSOF-WAY MANAGEMENT 613, 613 (John W. GoodrichMahoney et al. ed., 2008). This advantage over

traditional open cut construction has made horizontal

directional drilling “the method-of-choice by

regulatory agencies for construction in sensitive

areas.” Id.

“Throughout the process of drilling and enlarging

the borehole, drilling mud (made of a naturally

occurring non-toxic bentonite clay material and

water)” is “circulated through the drilling tools to

lubricate the drill bit, remove drill cuttings, and

stabilize the borehole during reaming and during

placement of the pipeline.” Millennium EA, at 28. A

similar “bentonite slurry” is also used as “drilling

fluid” in “slurry boring,” FHWA Manual § 4.1.2, and

for “[l]ubrication” in pipe jacking and microtunneling,

id. § 4.1.3. Because this drilling mud is used under

high pressure, it is almost certain to make its way into

the surrounding soil or groundwater through

underground paths of least resistance that cannot be

predicted. Suleiman, supra, at 38-39.

13

B. “Trenchless

methods

are

becoming

increasingly important as the number of utility pipes

for water, gas, and telecommunications and storm and

sanitary sewers multiply beneath roads.” Suleiman,

supra, at 3. Each year, “150,000 miles of new conduit

is installed . . . in North America,” id. at 5, and much

of that conduit must pass either through or beneath

surface features. “The natural gas industry,” for

example, “estimates that almost 60% of their pipes

run below pavement,” which would have to be

“removed to perform open-cut work.” Id. at 3.

Trenchless methods are used in a wide range of

applications to avoid interference with these surface

features:

“In the private sector, media and

communication firms are using [horizontal directional

drilling] to install telephone, fiber optic, and cable

conduits and lines.” Id. at 15. And “[t]he public sector

utilizes [horizontal directional drilling] for repairing

and replacing potable water mains, reclaimed water

mains, storm water piping, sewage gravity piping,

and force mains.” Id.

In many circumstances, trenchless methods are

the environmentally, economically, and socially

preferred method for utility line installation. See

Iowa State Univ. Inst. for Transp., Iowa Statewide

Urban Design and Specifications, Ch. 14 - Trenchless

Construction, https://intrans.iastate.edu/app/uploads/

sites/15/2018/09/Chapter_14-2017.pdf

(“Iowa

Manual”).

Trenchless construction “minimiz[es]

disturbances in environmentally sensitive areas,” id.

ch. 14A-1, at 1, and thus “minimize[s] impact on

critical habitats,” Suleiman, supra, at 15. It also

reduces “[n]oise,” “vibration,” “dust,” and “[a]ir

pollution” and “result[s] in less carbon footprint” than

open-cut methods. Amir Tambesh et al., Comparison

of Trenchless and Open-cut Methods for Construction

14

of an Underground Freight Transportation (UFT)

System 4 (2016), https://www.researchgate.net/

publication/311923220_Comparison_of_Trenchless_

and_Opencut_Methods_for_Construction_of_an_

Underground_Freight_Transportation_UFT_System.

In many cases, therefore, it is “more environmentally

friendly” than the alternatives. Id.

In addition to these environmental benefits,

trenchless methods are often less costly than open-cut

methods. “[T]he relative cost of [horizontal directional

drilling],” for example, has now “fallen below that of

traditional trenching for many applications.” FHWA

Manual § 4.1.1. This is especially true when the

“social costs” of construction are factored in.

Suleiman, supra, at 3; see also Tambesh, supra, at 4

(same). Trenchless methods are able, for example, “to

install utility pipes across busy streets without

disrupting traffic,” Suleiman, supra, at 1. They thus

“avoi[d] public inconvenience and lost business

revenue caused by a closed roadway.” Iowa Manual,

ch. 14A-1, at 1. They “allow pipe to be installed

deeper, avoiding areas of underground pipe

congestion.” Suleiman, supra, at 3. They “eliminat[e]

danger to workers and the public posed by an open

trench.” Iowa Manual, ch. 14A-1, at 1. And they

“reduc[e] the potential damage to adjacent

structures.” Id.

Given these advantages, it should be no surprise

that trenchless construction methods are approved

and even preferred by multiple state and federal

agencies in many circumstances. The Federal Energy

Regulatory Commission, for example, has stated that

horizontal directional drilling “is generally the

preferred method to cross major and sensitive waterbodies because it avoids in-stream construction and

15

riparian impacts.” FERC, Order Authorizing Abandonment and Issuing Certificate ¶ 11, Nw. Pipeline

Corp., FERC Docket Nos. CP05-32-000 & CP05-32001

(2005),

https://www.ferc.gov/CalendarFiles/

20050913171237-CP05-32-000.pdf. The Army Corps

of Engineers, meanwhile, has issued a nationwide

permit for “the construction, maintenance, repair, and

removal of utility lines . . . in waters of the United

States.”

U.S. Army Corps of Eng’rs, Decision

Document, Nationwide Permit 12, at 1 (Dec. 21, 2016),

https://usace.contentdm.oclc.org/utils/getfile/

collection/p16021coll7/id/6725. The permit covers the

use of horizontal directional drilling, which the Corps

describes as “an important technique for avoiding and

minimizing adverse effects to jurisdictional waters

and wetlands during the construction of utility lines.”

Id.at 14.3

The

New

York

State

Department

of

Environmental Conservation has similarly stated

that horizontal directional drilling is its “‘preferred

methodology for all stream crossings.’” Constitution

Pipeline Co. v. N.Y. State Dep’t of Envtl. Conservation,

868 F.3d 87, 93 (2d Cir. 2017). Indeed, the agency has

not only approved the use of horizontal directional

drilling; it has insisted that a pipeline company assess

the feasibility of expanding the use of horizontal

directional drilling for additional crossings. Id. at 9395.

3 That permit would not satisfy the ruling below, however, because the Corps does not issue NPDES permits. Instead, it authorizes the crossing of navigable waters and the discharge of

dredged or fill materials into those waters under the Rivers and

Harbors Act and Section 404 of the Clean Water Act, 33 U.S.C.

§ 1344.

16

C. The decision below threatens to upend the

significant environmental and other benefits

recognized by these agencies, by subjecting horizontal

directional drilling and other trenchless methods to

the NPDES permitting requirements. The drilling

mud used in many trenchless methods is made of

water and “naturally occurring non-toxic bentonite

clay.” Millennium EA, at 28. Though “bentonite is

environmentally friendly” and commonly used in

everyday products such as sunscreen and hand soap,

Energy Transfer Video (at 2:25), supra, it arguably

meets the Clean Water Act’s inclusive definition of a

“pollutant.” And experience has shown that there is a

risk that drilling mud will be inadvertently released

to the surface through indiscernible, underground

pathways, Millennium EA, at 28; see also FHWA

Manual § 4.2.2, or released into groundwater, from

which it can ultimately reach navigable waters.

Under a correct view of the law, any discharge of

drilling mud from the drilling path into groundwater

and then to navigable waters would be nonpoint

pollution and would not require an NPDES permit. So

too any release to the surface and then to navigable

waters, since experience shows that the path to the

surface is rarely “discernible,” and the rock and soil

through which any drilling mud would pass is not a

“confined” or “discrete” conveyance.

33 U.S.C.

§ 1362(14). The inadvertent release of drilling mud as

a byproduct of trenchless construction could be

regulated in other ways, but would not require an

NPDES permit. The party responsible for the release

could be required by state or federal law to implement

“corrective actions.” Millennium EA, at 36. But the

release itself would not automatically qualify as a

criminal act subject to steep criminal and civil

17

penalties merely as a result of the failure to anticipate

the release and obtain a permit in advance.

The decision below, however, would subject these

inadvertent releases from a point source to a nonpoint

source to the NPDES permit requirement if the

drilling mud reached navigable waters at the surface

above the drilling path, or migrated to navigable

waters from the surface or through groundwater.

Because these inadvertent releases cannot be

anticipated in advance, parties engaged in trenchless

construction methods that use drilling mud would be

compelled to seek and obtain a permit as a

precautionary measure for every application of

horizontal directional drilling or trenchless

construction, or risk criminal and civil liability every

time.

Requiring a permit for each potential release of

drilling mud into navigable waters from a trenchless

construction application is not workable. Any permit

would have to specify the “quantity” of pollutants that

would be released and the specific water into which it

would be released. Miccosukee, 541 U.S. at 102. But

there is no way to know either of these things in

advance. Experience has shown that drilling mud

inadvertently released from a trenchless construction

application can travel significant distances through

soil and groundwater. See Kelly O. Maloney et al.,

Unconventional oil and gas spills: Materials, volumes,

and risks to surface waters in four states of the U.S.,

581-582 SCI. OF THE TOTAL ENV’T 369, 373-74 (2017),

https://www.sciencedirect.com/science/article/pii/

S0048969716328327?via%3Dihub

(spill

incident

survey finding materials like drilling mud had

traveled distances of 0.4 to 9,276 meters from spill site

to a stream by ground or overland flow); SKONBERG,

18

supra, at 620. It is not possible to predict with

accuracy whether, where, or in what magnitude it

may surface. See Suleiman, supra, at 38-39. As a

result, one could not properly apply for and obtain the

permit that would be required by the decision below.

The problem is the same whether the permit

requirement is extended to nonpoint-source pollution

that is “fairly traceable” to a point source, as the court

of appeals held, Pet. App. 24, or that creates a “‘direct

hydrological connection’ between the point source and

the navigable water,” as the United States urged

below, id. at 24 n.3, and the Fourth Circuit held in

Upstate Forever v. Kinder Morgan Energy Partners,

L.P., 887 F.3d 637, 651-52 (4th Cir. 2018). Without

any means of telling in advance whether the drilling

path has a hydrological connection to navigable

waters, let alone to any particular navigable water,

parties engaged in trenchless construction will always

be required—yet unable—to obtain a permit before

commencing construction, lest they risk criminal

liability. Congress could not have intended for such

an unworkable scheme.

Even if these obstacles could be overcome, the

permitting process would be cost prohibitive in many

instances and would delay construction by a period of

years. Obtaining an “individual” NPDES permit can

takes an average of 788 days, and completing the

application alone requires an average cost of

$271,596. U.S. Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807, 1812 (2016). That is a significant

expenditure even for larger horizontal directional

drilling operations, which can cost up to $500 per

linear foot, FHWA Manual § 4.2.4, and can be more

than a mile long, placing total costs in the multimillion-dollar range. For smaller applications the

19

cost of applying for a permit could dwarf the cost of

the project. A 600-foot drill, for example, can run from

just $16 to $164 per foot, id. §§ 4.1.1, 4.2.4, yielding

costs of just tens or hundreds of thousands of dollars.

Requiring a permit would thus spell the end of the

preferred construction method for many smaller

projects.

These costs would be multiplied for major pipeline

construction projects, which involve multiple

applications of horizontal directional drilling for

different crossings in different locations.

The

PennEast pipeline, for example, involved the use of

horizontal directional drilling for 17 distinct

crossings. FERC, PennEast Pipeline Project, Final

Environmental Impact Statement Vol. I, FERC Docket

No.

CP15-558-000,

at

ES-5

(Apr.

2017),

https://www.ferc.gov/industries/gas/enviro/eis/2017/

04-07-17-FEIS/Final-Environmental-ImpactStatement.pdf. Each of these crossings would have

required a separate NPDES permit under the decision

below—if not multiple permits, one for each possible

waterway into which pollutants could theoretically

migrate. At $271,596 per permit, that would have

meant nearly $5 million in additional permitting

costs.

Properly interpreted, the Clean Water Act does

not impose such costs. The Act does not require a

permit for the release of pollutants from point sources

to nonpoint sources, regardless of the later potential

migration of substances from nonpoint sources.

20

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

MIGUEL A. ESTRADA

Counsel of Record

WILLIAM S. SCHERMAN

DAVID DEBOLD

JASON FLEISCHER

MATTHEW S. ROZEN

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

MEstrada@gibsondunn.com

Counsel for Amicus Curiae

May 16, 2019