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, HAWAII,

Petitioner,

v.

HAWAII WILDLIFE FUND, ET AL.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER,

WESTERN STATES TRUCKING ASSOCIATION, INC.,

AND NUCKLES OIL CO., INC.

D/B/A/ MERIT OIL COMPANY

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------ROBERT HENNEKE

THEODORE HADZI-ANTICH*

*Counsel of Record

RYAN D. WALTERS

TEXAS PUBLIC POLICY

FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

Facsimile: (512) 472-2728

tha@texaspolicy.com

Counsel for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the Clean Water Act requires a permit

when pollutants originate from a point source but are

conveyed to navigable waters by a nonpoint source,

such as groundwater.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

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

iii

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

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

3

ARGUMENT ........................................................

8

I.

II.

INTERPRETING THE PERMITTING REQUIREMENTS OF THE CLEAN WATER

ACT TO APPLY TO POLLUTANTS

CONVEYED TO NAVIGABLE WATERS

BY NONPOINT SOURCES, SUCH AS

GROUNDWATER, WOULD MAKE THE

ACT OF DOUBTFUL CONSTITUTIONAL

VALIDITY ..................................................

8

THE CLEAN WATER ACT SHOULD AND

READILY CAN BE CONSTRUED TO

AVOID THE SERIOUS CONSTITUTIONAL

ISSUES RAISED BY THE LOWER

COURT’S RULING .................................... 15

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

iii

TABLE OF AUTHORITIES

Page

CASES:

Alabama v. North Carolina, 560 U.S. 330 (2010) ......18

Bureau of Alcohol, Tobacco and Firearms v.

FLRA, 464 U.S. 89 (1983) ........................................13

Corley v. United States, 129 S.Ct. 1558 (2009) ..........18

Duncan v. Walker, 533 U.S. 167 (2001) ......................18

Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568

(1988) .......................................................................16

Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir.

1977) ........................................................................17

Gonzales v. Raich, 545 U.S. 1 (2005) ..........................11

Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d

737 (9th Cir. 2018) ................................................. 4, 5

Hooper v. People of State of California, 155 U.S.

648 (1895) .......................................................... 15, 16

Ken. Waterways Alliance v. Ken. Utils. Co., 303

F.Supp.3d 530 (E.D. Ky. 2017) ................................19

Ken. Waterways Alliance v. Ken. Utils. Co., 905

F.3d 925 (6th Cir. 2018) ...........................................19

Ken. Waterways in Tennessee Clean Water Network v. Tennessee Valley Authority, 905 F.3d

436 (2018) ................................................................19

King v. Burwell, 135 S.Ct. 2480 (2015) ................ 13, 14

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

519 (2012) .......................................................... 11, 12

iv

TABLE OF AUTHORITIES—Continued

Page

N.L.R.B. v. Catholic Bishop of Chi., 440 U.S. 490

(1979) .......................................................................15

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

Rice v. Harken Expl. Co., 250 F.3d 264 (5th Cir.

2001) ........................................................................17

Rust v. Sullivan, 500 U.S. 173 (1991) .........................16

Sackett v. EPA, 132 S.Ct. 1367 (2012) ........................14

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

Corps of Engineers, 531 U.S. 159 (2001) ......... passim

South Florida Water Management District v.

Miccosukee Tribe of Indians, 541 U.S. 95

(2004) .......................................................................17

Spotts v. United States, 613 F.3d 559 (5th Cir.

2010) ..........................................................................6

United States Army Corps of Engineers v.

Hawkes Co., Inc., 136 S.Ct. 1807 (2016) .................16

United States v. Appalachian Elec. Power Co.,

311 U.S. 377 (1940) .................................................19

United States v. Lopez, 514 U.S. 549 (1995) ........... 7, 10

United States v. Menasche, 348 U.S. 528 (1955) ........18

Util. Air Regulatory Grp. v. EPA, 134 S.Ct. 2427

(2014) .......................................................................13

Village of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 926 (7th Cir. 1994) ...........................17

Williams v. Taylor, 529 U.S. 362 (2000)......................18

v

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ...................................................15

U.S. Const. art. I, § 8 cl. 3 ........................... 7, 10, 11, 12

U.S. Const. art. I, § 8 cl. 18 ............................... 7, 11, 12

STATUTORY & REGULATORY PROVISIONS:

40 C.F.R.

§ 122.2(2)(v) .............................................................14

§ 142.10......................................................................6

16 U.S.C.

§ 1455b.....................................................................20

33 U.S.C.

§ 1251............................................................... passim

§ 1251(a) ....................................................................3

§ 1251(b) ....................................................................3

§ 1311(a) ....................................................................3

§ 1342(a) ....................................................................3

§ 1362(7) ....................................................................4

§ 1362(12)(A) ....................................................... 3, 17

§ 1362(14) ..................................................................3

42 U.S.C.

§§ 6901 et seq. ..........................................................20

§§ 9601 et seq. ..........................................................20

vi

TABLE OF AUTHORITIES—Continued

Page

Affordable Care Act, 42 U.S.C. §§ 18001 et seq.

(2010) ................................................................. 13, 14

Safe Drinking Water Act (“SDWA”), 42 U.S.C.

§§ 300f et seq. (1974) ........................................... 6, 20

OTHER:

Abbe R. Gluck, Imperfect Statutes, Imperfect

Courts: Understanding Congress’s Plan in the

Era of Unorthodox Lawmaking, 129 Harv. L.

Rev. 62 (2015) ..........................................................14

Edward V.A. Kussy, Wetland and Floodplain

Protection and the Federal-Aid Highway Program, 13 Envtl. L. 161 (1982) ...................................6

1

INTEREST OF AMICI CURIAE1

National Federation of Independent Business

Small Business Legal Center

The National Federation of Independent Business

Small Business Legal Center (“NFIB Legal Center”) is

a nonprofit, public interest law firm established to provide legal resources and be the voice for small businesses in the nation’s courts through representation on

issues of public interest affecting small businesses.

The National Federation of Independent Business

(“NFIB”) is the nation’s leading small business association, representing members in Washington, D.C., and

all 50 state capitals. Founded in 1943 as a nonprofit,

nonpartisan organization, NFIB’s mission is to promote and protect the right of its members to own, operate and grow their businesses.

NFIB represents small businesses nationwide,

and its membership spans the spectrum of business

operations, ranging from sole proprietor enterprises to

firms with hundreds of employees. While there is no

standard definition of a “small business,” the typical

NFIB member employs 10 people and reports gross

1

Amici National Federation of Independent Business Small

Business Legal Center, Western States Trucking Association,

Inc., and Nuckles Oil Co., Inc. d/b/a/ Merit Oil Company file this

brief with the consent of all parties; by email from Petitioner, and

by blanket consent filed by Respondents. See Supreme Court Rule

37.3(a). Pursuant to Supreme Court Rule 37.6, counsel for Amici

authored this brief in whole, no counsel for a party authored this

brief in whole or in part, and no other person or entity other than

Amici, their members, and their counsel contributed monetarily

to the preparation or submission of this brief.

2

sales of about $500,000 a year. The NFIB membership

is a reflection of American small business. To fulfill its

role as the voice for small business, the NFIB Legal

Center frequently files amici briefs in cases that will

impact small businesses.

The NFIB Legal Center files this amici brief to

provide a voice in these proceedings for the rights of

small business landowners. Their land is often one of

their most valuable assets both in terms of financial

investment and for their practical operations. It is

highly problematic for ranchers, farmers, and other

small business landowners when they are denied their

common law right to put their lands to productive uses

and profoundly concerning if the reach of the Clean

Water Act is expanded to include groundwater.

Western States Trucking Association, Inc.

Western States Trucking Association (“WSTA”) is

a nonprofit California trade association representing

the interests of over 1,000 members involved in a variety of businesses throughout California and other

western states whose members own and operate onroad and non-road vehicles, engines, and equipment,

and would be adversely affected if the reach of the

Clean Water Act is expanded to include groundwater.

Nuckles Oil Co., Inc. D/B/A/ Merit Oil Company

Merit Oil is a California corporation and is a

petroleum jobber, wholesaler, and distributor. Merit Oil

3

stores, transports, and wholesales a variety of petroleum products, including gasoline, diesel fuels, solvents, and kerosene, and operates a number of delivery

trucks. Merit Oil would be adversely affected if the

reach of the Clean Water Act is expanded to include

groundwater.

------------------------------------------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

The lower court erred when it held that a discharge of pollutants from a point source to groundwater that ultimately flows into the Pacific Ocean

requires a permit under the Clean Water Act’s National

Pollutant Discharge Elimination System (“NPDES”)

program.

Congress enacted the Clean Water Act (the “CWA”

or the “Act”), 33 U.S.C. §§ 1251 et seq., to “restore and

maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), while

“recogniz[ing], preserv[ing], and protect[ing] the primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution.” 33 U.S.C. § 1251(b).

Congress prohibited the discharge of any “pollutant”

through a “point source” into “navigable waters” unless

authorized by a permit issued pursuant to the NPDES

program. See 33 U.S.C. § 1311(a); see also 33 U.S.C.

§ 1362(12)(A), 33 U.S.C. § 1342(a), 33 U.S.C. § 1362(14).

The Act defines “navigable waters” as “the waters

of the United States, including the territorial seas.”

4

33 U.S.C. § 1362(7). The term “waters of the United

States,” however, is not explicitly defined by statute.

Over the years, agencies have seized upon this opportunity to test the constitutional limits of the CWA, with

varying degrees of success. The lower court strayed beyond constitutional limits in holding that the County

of Maui’s injection of treated wastewater into groundwater without a NPDES permit violated the CWA’s

permitting requirement for point source discharges

into navigable waters where the groundwater ultimately reached the Pacific Ocean. Hawai’i Wildlife

Fund v. Cty. of Maui, 886 F.3d 737, 745-749 (9th Cir.

2018).

After concluding that each of the County’s wells

constituted “point sources” under the Act, Cty. of Maui,

886 F.3d at 744-745, the lower court analyzed the

County’s argument that, in order for a CWA “discharge” to occur, “the point source itself must convey

the pollutants directly into the navigable water,” rather than indirectly through groundwater. Id. at 745.

The court rejected that argument, holding that “an indirect discharge from a point source to a navigable water suffices for CWA liability to attach.” Id. at 747. In

support, the lower court relied in large part on the plurality opinion in Rapanos v. United States, 547 U.S. 715

(2006), observing that “Justice Scalia recognized the

CWA does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but

rather the ‘addition of any pollutant to navigable waters.’ ” Id. at 748 (quoting Rapanos, 547 U.S. at 743) (internal quotation marks omitted). While recognizing

5

that the Rapanos plurality opinion was not “controlling,” the lower court found it persuasive for the point

that pollutants need not “be discharged ‘directly’ to

navigable waters from a point source” to fall within the

Act’s coverage. Id. at 744-749. The lower court misreads

Rapanos and ignores the substantial constitutional issues inherent in extending the CWA’s NPDES program

to groundwater discharges. For at least five reasons,

the judgment of the lower court should be reversed.

First, Rapanos did not address groundwater discharges but dealt solely with discharges of dredged

and fill material into wetlands, a CWA regulatory program to which the NPDES program does not apply.

Second, the Rapanos plurality roundly rejected

any notion that the statutory term “waters of the

United States” could be interpreted without specific

reference to the statutory term “navigable waters.” See

Rapanos, 547 U.S. at 731 (“[T]he qualifier ‘navigable’ is

not devoid of significance.”). By its nature, groundwater is not and cannot be readily made to be “navigable.”

Thus, discharges from a point source to groundwater

are not discharges to navigable waters. Moreover,

groundwater itself does not and cannot meet the definition of “point source” under the Act.

Third, when agencies try to extend their CWA jurisdiction to waters that are not navigable-in-fact, this

Court has cautioned that the CWA “invokes the outer

limits of Congress’ power” under the Constitution and,

accordingly, assertions of jurisdiction should not be

sanctioned unless there is a “clear indication that

6

Congress intended such result.” Solid Waste Agency of

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

159, 172 (2001) (“SWANCC”). The Court in SWANCC

determined that the broad assertion of CWA jurisdiction over isolated wetlands “alters the federal-state

framework by permitting federal encroachment upon

a traditional state power[,]” specifically “impingement

of the States’ traditional and primary power over land

and water use.” Id. at 173-74. Here, the lower court

sanctioned an interpretation of the CWA that impermissibly extends federal jurisdiction beyond the constitutional limits established in SWANCC.

Fourth, other federal regulatory programs address

groundwater pollution, most notably the Safe Drinking

Water Act (“SDWA”) 42 U.S.C. §§ 300f et seq. (1974),

which is “the primary law protecting groundwater purity for domestic use.” Edward V. A. Kussy, Wetland

and Floodplain Protection and the Federal-Aid Highway Program, 13 Envtl. L. 161, 213 (1982). Under the

SDWA, Congress delegated “primary enforcement responsibility to the individual states.” Spotts v. United

States, 613 F.3d 559, 570 (5th Cir. 2010); see also 40

C.F.R. § 142.10. By allowing the regulation of discharges to groundwater to be enforced under the

NPDES program of the CWA rather than under the

SDWA the lower court misapplied Congress’ statutory

scheme in enacting the two independent statutes.

Fifth, this Court has opined not only that the

CWA pushes the outer boundaries of the Constitution

when it veers substantially from regulating “navigable

waters” but also that, under the Commerce Clause,

7

U.S. Const. art. I, § 8, cl. 3, Congress may only regulate

outside of the “channels or instrumentalities” of interstate commerce if that which is regulated “substantially affect[s] interstate commerce.” United States v.

Lopez, 514 U.S. 549, 558-559 (1995). Navigable waters

certainly are within the “channels and instrumentalities” of interstate commerce; groundwaters are not. Accordingly, only if groundwaters “substantially affect”

interstate commerce can there be a constitutional basis for regulating them under the CWA. The lower

court did not provide any analysis of the extent to

which groundwaters could be deemed to “substantially

affect” interstate commerce, let alone the extent to

which they could be regulated to the same extent as

navigable waters under the CWA. Moreover, under the

Necessary and Proper Clause, U.S. Const. art. I, § 8, cl.

18, a regulation will pass muster under the Commerce

Clause only if it is necessary—i.e., “plainly adapted”—

to the regulation of commerce, meaning that it is both

narrow in scope and incidental to regulating commerce. In ruling that the County needed a NPDES permit to discharge to groundwater, the lower court

neglected to address whether such a requirement was

“plainly adapted” to the regulation of commerce under

the CWA, an oversight that makes the ruling fatally

flawed.

------------------------------------------------------------------

8

ARGUMENT

I.

INTERPRETING THE PERMITTING REQUIREMENTS OF THE CLEAN WATER ACT TO APPLY

TO POLLUTANTS CONVEYED TO NAVIGABLE

WATERS BY NONPOINT SOURCES, SUCH AS

GROUNDWATER, WOULD MAKE THE ACT OF

DOUBTFUL CONSTITUTIONAL VALIDITY

This Court’s precedents have evidenced serious

concerns about the constitutionality of the everexpanding scope of federal jurisdiction under the Clean

Water Act. In Rapanos, the Supreme Court reviewed

the Corps’ regulatory definition of “waters of the

United States” as it applied to wetlands adjacent to

tributaries of navigable waters. 547 U.S. 715.

The plurality opinion of four justices, authored by

Justice Scalia, ridiculed the argument that “waters of

the United States” included “virtually any parcel of

land containing a channel or conduit—whether manmade or natural, broad or narrow, permanent or

ephemeral—through which rainwater or drainage may

occasionally or intermittently flow.” Rapanos, 547 U.S.

at 722 (plurality opinion). The plurality also rejected

the notion that CWA jurisdiction extended to “storm

drains, roadside ditches, ripples of sand in the desert

that may contain water once a year, and lands that are

covered by floodwaters once every 100 years.” Id. Instead, the plurality held that, notwithstanding the

Corps’ regulations, the term “waters of the United

States” referred to “relatively permanent, standing or

9

continuously flowing bodies of water” that are connected to traditional navigable waters. Justice Scalia

explained that wetlands fell within the scope of the

CWA only when the Corps could show: “first, that the

adjacent channel contains a ‘water of the United

States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)”; and

second, that the wetland has “a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Id. at 742 (emphasis added). It is significant that the

plurality required a surface water connection between

wetlands and adjacent waters and that a groundwater

connection was deemed insufficient to establish CWA

jurisdiction. Although the lower court purported to rely

on Rapanos, it chose to ignore this important distinction.

In his concurring opinion in Rapanos, Justice Kennedy expressed concern over the scope of jurisdiction

asserted under the Act: “[T]he dissent would permit

federal regulation whenever wetlands lie alongside a

ditch or drain, however remote and insubstantial, that

eventually may flow into traditional navigable waters.

The deference owed to the Corps’ interpretation of the

statute does not extend so far.” 547 U.S. at 779-780

(Kennedy, J., concurring); id. at 776 (citing “constitutional and federalism difficulties” in the jurisdictional

reach of the Clean Water Act).

Five years before Rapanos, the Supreme Court cautioned that the CWA “invokes the outer limits of Congress’ power” under the Constitution and, accordingly,

10

the Corps’ broad assertions of jurisdiction should not

be permitted unless there is a “clear indication that

Congress intended that result.” SWANCC, 531 U.S. at

172. The Court in SWANCC determined that a broad

assertion of CWA jurisdiction over isolated wetlands

could not be sanctioned because, among other things,

it “alters the federal-state framework by permitting

federal encroachment upon a traditional state power[,]”

specifically “impingement of the States’ traditional

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

173-174. Accordingly, in the instant case, traditional

state power over land and the associated use of

groundwater cautions against reading the NPDES program broadly to regulate discharges into groundwater.

When considered with other precedents of this

Court, the SWANCC and Rapanos restrictions have

significant impacts on the way agencies must view

CWA regulation of waters that are not, in fact, “navigable.” Under existing Commerce Clause precedent,

Congress may only regulate outside of the “channels or

instrumentalities” of interstate commerce if that

which is regulated “substantially affect[s] interstate

commerce.” Lopez, 514 U.S. at 558-559. The CWA is

predicated on the Commerce Clause. SWANCC, 531

U.S. at 173-174. Because groundwater has never been

considered a “channel or instrumentality” of interstate

commerce, it is impermissible to regulate it under the

CWA unless a showing is made that it “substantially

affects” interstate commerce. The lower court’s opinion

is silent on this issue.

11

Furthermore, the authority to regulate interstate

commerce is derived from and limited by not only the

Commerce Clause but also the Necessary and Proper

Clause. Gonzales v. Raich, 545 U.S. 1, 34 (2005) (Scalia,

J., concurring). Under the Necessary and Proper

Clause, a regulation will pass muster only if it is necessary—i.e., “plainly adapted”—to the regulation of

commerce. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

U.S. 519, 537 (2012). To be “plainly adapted,” a regulation must be (1) “narrow in scope,” and (2) “incidental” to the regulation of commerce. Id. at 560.

The Necessary and Proper Clause adds an additional

level of scrutiny, by requiring that regulations must

be “proper”—i.e., within the “letter and spirit of the

constitution” and in accord with the traditional balance of power between the federal government and the

states. Id. at 537.

In Sebelius, the Court examined whether a federal

mandate for individuals to buy insurance was a necessary and proper exercise of the commerce power. 567

U.S. 519. The government had argued that the individual mandate was necessary to maintain and regulate a functional market in health insurance and

therefore permissible under the Necessary and Proper

Clause. The Court disagreed. As Chief Justice Roberts

explained, there was no sufficient evidence that the

mandate was necessary, but even if there were, the regulation would not be “proper” because it “would work a

substantial expansion of federal authority” into areas

traditionally regulated by the states. Id. at 560.

12

This reasoning is relevant to the CWA. To the extent that the government wishes to regulate discharges

into waters that are not, in fact, navigable, it must

provide some evidence that the regulation of such

discharges is “necessary”—i.e., that discharges into

the waters have a substantial effect on interstate

commerce. Id. at 560. Even if that burden were met,

the agencies must also show that the regulation is

“proper”—i.e., that it would not “work a substantial expansion of federal authority” into areas traditionally

regulated by the states. Id. Because land and water development and use decisions are traditionally reserved

to the states, the second factor provides a significant

limiting principle on the scope of the CWA. When it enacted the CWA, Congress chose to “recognize, preserve,

and protect the primary responsibilities and rights of

States . . . to plan the development and use . . . of land

and water resources . . . ” and courts must therefore

“read the statute as written to avoid the significant

constitutional and federalism questions.” SWANNC,

531 U.S. at 174.

Accordingly, both the Commerce Clause and the

Necessary and Proper Clause should be applied as limitations on the scope of constitutionally permissible interpretations of the CWA. The fatal flaw in the lower

court’s reasoning is that it ignored these considerations.

Moreover, this Court has refused to find implied

delegations where discretionary authority would have

profound consequences on the economic and societal

foundations upon which a statute rests. By forcing

13

Congress to take explicit statutory responsibility for

making the major decisions surrounding a statutory

scheme, especially those of major economic or political

significance, this Court has policed the regulatory

boundaries of agencies to limit their assumption of

Congress’s role in making major policy decisions. Util.

Air Regulatory Grp. v. EPA, 134 S.Ct. 2427, 2444 (2014)

(describing EPA’s interpretation of the Clean Air Act,

in part, as “laying claim to extravagant statutory

power over the national economy”); Bureau of Alcohol,

Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104

(1983) (refusing to sanction “unauthorized assumption

by an agency of major policy decisions”) (citation omitted). Subjecting groundwater point source discharges

to the NPDES program greatly expands the scope of

government power over a wide variety of activities

throughout the nation. See Pet’s Opening Br. at 45-48.

In sanctioning such an expansion without explicit

congressional approval, the lower court not only ignored the Rapanos requirement of a surface water connection as a predicate to CWA jurisdiction but also

allowed an administrative agency to circumvent Congress and make a major policy decision affecting the

nation, thereby conflicting with the proscriptions of

Util. Air Regulatory Grp. and FLRA limiting implied

delegations of authority.

In King v. Burwell, 135 S.Ct. 2480 (2015), the

Court rejected a broad reading of the Affordable Care

Act, 42 U.S.C. §§ 18001 et seq. (2010), because the availability of billions of dollars of tax credits on health exchanges established by the federal government was “a

14

question of ‘deep economic and political significance’

that is central to this statutory scheme; had Congress

wished to assign that question to an agency, it surely

would have done so expressly.” Id. at 2488-2489. The

King decision stands for the proposition that not every

ambiguity in an imperfect and complicated statute creates broad interpretive space, which is reserved “only

for mundane or confined questions that do not implicate the functionality of the overall statutory structure.” Abbe R. Gluck, Imperfect Statutes, Imperfect

Courts: Understanding Congress’s Plan in the Era of

Unorthodox Lawmaking, 129 Harv. L. Rev. 62, 93-96

(2015).

Just as the Court recognized in King that the Affordable Care Act was an “imperfect and complicated

statute,” the reach of the Clean Water Act is “notoriously unclear.” Sackett v. EPA, 132 S.Ct. 1367, 13741375 (2012) (Alito, J., concurring). The CWA’s NPDES

program should not be construed to cover point source

discharges into groundwater absent a clear statement

from Congress. Here, not only has Congress not made

a clear statement in favor of such a construction,

but the agency in its own regulations has specifically

excluded groundwater from the definition of the term

“waters of the United States.” See 40 C.F.R.

§ 122.2(2)(v) (excluding groundwater from “waters of

the United States”). Under these circumstances, it was

impermissible for the lower court to rule that a point

source discharge to groundwater is jurisdictional under the CWA’s NPDES program.

15

II.

THE CLEAN WATER ACT SHOULD AND READILY

CAN BE CONSTRUED TO AVOID THE SERIOUS

CONSTITUTIONAL ISSUES RAISED BY THE

LOWER COURT’S RULING

The constitutional avoidance canon is triggered

not primarily by otherwise irresolvable ambiguity, but

rather by situations in which “an otherwise acceptable

construction of a statute would raise serious constitutional problems” and courts “construe the statute to

avoid such problems unless such construction is

plainly contrary to the intent of Congress.” Edward J.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 575 (1988) (citing

N.L.R.B. v. Catholic Bishop of Chi., 440 U.S. 490, 499501, 504 (1979)). Moreover, specifically with reference

to the CWA, this Court has refused to sanction a broad

interpretation of the CWA that raises serious constitutional concerns. SWANCC, 531 U.S. at 172-173.

DeBartolo examined the National Labor Relations

Board’s (“NLRB”) interpretation of “coercion” as used

in the National Labor Relations Act (“NLRA”). The

NLRB decided that a labor union’s peaceful handbilling of consumers was prohibited if it encouraged consumers to boycott stores that failed to pay what it

deemed to be fair wages. 485 U.S. at 573. The Court

held that the NLRB’s interpretation posed serious

questions of validity under the First Amendment. Id.

at 574-576. The Court explained that:

16

“[T]he elementary rule is that every reasonable construction must be resorted to, in order

to save a statute from unconstitutionality.”

This approach not only reflects the prudential

concern that constitutional issues not be

needlessly confronted, but also recognizes

that Congress, like this Court, is bound by and

swears an oath to uphold the Constitution.

The courts will therefore not lightly assume

that Congress intended to infringe constitutionally protected liberties or usurp power

constitutionally forbidden it.

Id. (quoting Hooper v. People of State of California, 155

U.S. 648, 657 (1895)). The Court ultimately determined

that a less constitutionally suspect interpretation was

not foreclosed by the statutory language or legislative

history. It therefore rejected NLRB’s interpretation because a less problematic construction “makes unnecessary passing on the serious constitutional questions

that would be raised by the Board’s understanding of

the statute.” Id. at 588; see also Rust v. Sullivan, 500

U.S. 173, 181, 190-191 (1991) (“statute must be construed . . . so as to avoid not only the conclusion that it

is unconstitutional but also grave doubts upon that

score”). See United States Army Corps of Engineers v.

Hawkes Co., Inc., 136 S.Ct. 1807, 1816 (2016) (Kennedy,

J., concurring) (“[T]he reach and systemic consequences

of the Clean Water Act remain a cause for concern.”).

Here, avoidance of the substantial constitutional

issues is a straightforward task because, as explained

by the Petitioner, there is a readily available interpretation of the CWA that does not raise constitutional

17

issues. The Fifth Circuit has observed that “the legislative history demonstrates conclusively that Congress

believed it was not granting the Administrator any

power to control disposals into groundwater. . . . [Rather the CWA’s] pattern is one of federal information

gathering and encouragement of state efforts to control

groundwater pollution but not of direct federal control

over groundwater pollution.” Exxon Corp. v. Train, 554

F.2d 1310, 1322, 1329 (5th Cir. 1977); see also Rice v.

Harken Expl. Co., 250 F.3d 264, 271-272 (5th Cir. 2001)

(“Congress was aware that there was a connection between ground and surface waters but nonetheless decided to leave groundwater unregulated by the CWA.”);

Village of Oconomowoc Lake v. Dayton Hudson Corp.,

24 F.3d 962, 963-65 (7th Cir. 1994) (CWA jurisdiction

does not extend to pollutants seeping into groundwater

regardless of hydrological connection to navigable waters.).

As also pointed out by the Petitioner, the CWA

defines “discharge of a pollutant” as “any addition of

any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12)(A) (emphasis added).

Because groundwater is a nonpoint source, a discharge

from groundwater to a navigable water is not a discharge from a point source. And this Court has opined

that jurisdiction under the NPDES program depends

upon whether a point source itself actually transports

pollution to regulated surface waters. See South

Florida Water Management District v. Miccosukee

Tribe of Indians, 541 U.S. 95, 105 (2004). Here, groundwater, a nonpoint source, conveyed or transported the

18

pollution. Thus, the discharge into the regulated water

was not from a point source. Accordingly, the unambiguous language of the Act itself, as previously interpreted by this Court, provides an ample opportunity to

avoid the substantial constitutional concerns raised by

the lower court’s unwarranted expansion of CWA jurisdiction to the outer boundaries of the Constitution.

The theories proffered in and by the lower court,

such as the “conduit” theory, the “direct hydrological

connection” theory, the “fairly traceable” theory, and

the “de minimis” theory are not based on textual analysis of the CWA. To the contrary, each of those theories

impermissibly rewrites the statute by adding words to

the statutory text. See Alabama v. North Carolina, 560

U.S. 330, 352 (2010) (“We do not—we cannot—add provisions to a federal statute.”) (citation omitted).

Of course, the County’s discharge into groundwater cannot itself be considered a discharge into

navigable waters. For the statutory term “navigable

waters” to have a permissible meaning, the “navigable”

part of the term cannot be ignored. “It is our duty ‘to

give effect, if possible, to every clause and word of a

statute.’ ” Duncan v. Walker, 533 U.S. 167, 174 (2001)

(quoting United States v. Menasche, 348 U.S. 528, 538539 (1955)); Corley v. United States, 129 S.Ct. 1558,

1566 (2009) (no statute should be read to render any

part “inoperative or superfluous, void or insignificant”)

(citation omitted); see also Williams v. Taylor, 529 U.S.

362, 404 (2000) (describing this rule as a “cardinal

principle of statutory construction”).

19

This Court has defined the term “navigable waters”

as waters that are “navigable in fact or which could

reasonably be so made.” SWANCC, 531 U.S. at 172 (citing United States v. Appalachian Elec. Power Co., 311

U.S. 377, 407-08 (1940)). In his plurality opinion in Rapanos, Justice Scalia traced the long history of the

term “navigable waters,” making clear that, historically, no waters could be defined as “navigable” unless

they were either in-fact navigable or could readily be

made to be navigable. Rapanos, 547 U.S. at 723-24. Accordingly, because groundwater is neither navigable

nor could it readily be made to be navigable, the

County’s discharge at issue here cannot be considered

a discharge into navigable waters. See Ken. Waterways

Alliance v. Ken. Utils. Co., 303 F.Supp.3d 530, 542 (E.D.

Ky. 2017) (“Courts have overwhelmingly found that

groundwater, even if hydrologically connected to navigable waters, is not itself a navigable water under the

CWA.”).

A pair of recent Sixth Circuit decisions agree with

this analysis. In both cases, the court held that discharges to groundwater eventually seeping into navigable waters are not point source discharges because

groundwater, the actual mechanism of transport into

the navigable water, is a nonpoint source and itself is

not navigable water. See Ken. Waterways Alliance v.

Ken. Utils. Co., 905 F.3d 925, 930-33 (6th Cir. 2018);

Ken. Waterways in Tennessee Clean Water Network v.

Tennessee Valley Authority, 905 F.3d 436, 438, 444-45

(2018).

20

Numerous other federal statues deal with nonpoint

source pollution, including the SDWA, the Coastal Zone

Act Reauthorization Amendments of 1990 (“Coastal

Zone Act”), 16 U.S.C. § 1455b, the Resource Conservation

and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 et seq.,

and the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), 42

U.S.C. §§ 9601 et seq. Accordingly, interpreting the

CWA in the manner suggested herein in order to avoid

constitutional issues will not leave any gap in the overall regulatory program governing nonpoint source pollution.

------------------------------------------------------------------

CONCLUSION

For these reasons, as well as those set forth in the

Petitioner’s brief, the judgment of the lower court

should be reversed.

Dated: May 16, 2019

Respectfully submitted,

ROBERT HENNEKE

THEODORE HADZI-ANTICH*

*Counsel of Record

RYAN D. WALTERS

TEXAS PUBLIC POLICY

FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

Facsimile: (512) 472-2728

tha@texaspolicy.com

Counsel for Amici Curiae