Amicus Curiae Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.
Supreme Court briefMay 16, 2019
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No. 18-260
IN THE
Supreme Court of the United States
_____________
COUNTY OF MAUI,
Petitioner,
v.
HAWAI‘I WILDLIFE FUND, ET AL.,
Respondents.
_____________
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
_____________
BRIEF OF AMICI CURIAE EDISON ELECTRIC
INSTITUTE, AMERICAN FUEL &
PETROCHEMICAL MANUFACTURERS,
AMERICAN IRON AND STEEL INSTITUTE,
AMERICAN PETROLEUM INSTITUTE, AMERICAN
PUBLIC POWER ASSOCIATION, ASSOCIATION
OF AMERICAN RAILROADS, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS,
NATIONAL ASSOCIATION OF MANUFACTURERS,
NATIONAL MINING ASSOCIATION, NATIONAL
RURAL ELECTRIC COOPERATIVE ASSOCIATION,
PORTLAND CEMENT ASSOCIATION, AND
UTILITY WATER ACT GROUP IN SUPPORT OF
PETITIONER
_____________
THOMAS A. LORENZEN
Counsel of Record
DAVID Y. CHUNG
AMANDA SHAFER BERMAN
CROWELL & MORING LLP
1001 Pennsylvania Ave., N.W.
Washington, DC 20004
(202) 624-2500
tlorenzen@crowell.com
[Additional Counsel Listed on Signature Page]
i
TABLE OF CONTENTS
Page
INTERESTS OF AMICI CURIAE ............................. 1
INTRODUCTION AND SUMMARY
OF
ARGUMENT ...................................................... 5
ARGUMENT .............................................................. 8
I.
BY IGNORING HOW POLLUTANTS
REACH NAVIGABLE WATERS, THE
NINTH
CIRCUIT HAS UPSET THE
CAREFUL
BALANCE
CONGRESS
STRUCK IN THE CLEAN WATER ACT. ........ 8
A. Congress Struck and Maintained a
Careful Balance Between Federal
Regulation of Certain Point Source
Discharges Into Navigable Waters and
States’ Broader Authority to Address
Water Pollution. .......................................... 9
B. Congress Effectuated the Balance
Struck in the 1972 Act by Drawing a
“Clear and Precise” Line Between
Point and Nonpoint Source Pollution...... 16
II.
RESPECTING CONGRESS’S INTENT,
EPA HAS MOSTLY DECLINED TO
REGULATE
RELEASES
TO
GROUNDWATER UNDER THE NPDES
PROGRAM. ...................................................... 21
A. For Decades, EPA Has Indicated That
Releases to Groundwater Are Beyond
the Scope of the NPDES Program. ........... 21
B. EPA’s Permitting Decisions Reflect
Congress’s Intent Not to Extend the
ii
NPDES Program to Releases to
Groundwater. ............................................ 28
III. THE NINTH CIRCUIT’S DECISION
DISPLACES OTHER PROGRAMS THAT
BETTER ADDRESS GROUNDWATER
POLLUTION. .................................................. 32
CONCLUSION ......................................................... 41
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Coldani v. Hamm,
2007 WL 2345016 (E.D. Cal. Aug. 16,
2017) .....................................................................35
Decker v. Nw. Envtl. Def. Ctr.,
568 U.S. 597 (2013)..............................................15
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)................................................8
Loving v. IRS,
742 F.3d 1013 (D.C. Cir. 2014) ..............................8
Meghrig v. KFC W., Inc.,
516 U.S. 479 (1996)..............................................33
Milwaukee v. Illinois,
451 U.S. 304 (1981)..............................................10
Or. Nat. Desert Ass’n v. U.S. Forest Serv.,
550 F.3d 778 (9th Cir. 2008)................................20
State v. PVS Chemicals, Inc.,
50 F. Supp. 2d 171 (W.D.N.Y. 1998) ...................35
United States v. Standard Oil,
384 U.S. 224 (1966)................................................9
Williams Pipe Line Co. v. Bayer Corp.,
964 F. Supp. 1300 (S.D. Iowa 1997) ....................35
iv
TABLE OF AUTHORITIES
(continued)
Page(s)
Statutes
16 U.S.C. § 1455b ......................................................33
33 U.S.C. § 407 et seq. .................................................9
33 U.S.C. §§ 1251 et seq. .............................................1
33 U.S.C. § 1288 ........................................................12
33 U.S.C. § 1288(b)....................................................12
33 U.S.C. § 1288(b)(2)(F-J) .......................................17
33 U.S.C. § 1288(j).....................................................13
33 U.S.C. § 1311(a)......................................................5
33 U.S.C. § 1313 ..................................................10, 37
33 U.S.C. § 1313(d)(1) ...............................................33
33 U.S.C. § 1314 ........................................................37
33 U.S.C. § 1314(f)(2)(D) ...........................................12
33 U.S.C. § 1329 ..................................................14, 15
33 U.S.C. § 1329(a)(1) ...............................................38
33 U.S.C. § 1329(b)(1)(B) .........................................14
33 U.S.C. § 1329(b)(2)(A) ..........................................14
33 U.S.C. § 1329(h) ...................................................14
v
TABLE OF AUTHORITIES
(continued)
Page(s)
33 U.S.C. § 1342 ..........................................................8
33 U.S.C. § 1362(12)....................................................8
33 U.S.C. § 1362(14)..........................................5, 8, 16
42 U.S.C. §§ 300h et seq. ...........................................32
42 U.S.C. § 6903 ........................................................34
42 U.S.C. § 6903(3)....................................................34
42 U.S.C. § 6942(c)(1)................................................33
42 U.S.C. § 6943(a)....................................................33
42 U.S.C. § 6973 ........................................................33
Pub. L. No. 80-845, 62 Stat. 1155 (1948) .................10
Pub. L. No. 89-234 (1965) .........................................10
Pub. L. No. 89-753, 80 Stat. 1247 § 205
(1966)....................................................................10
Regulations
40 C.F.R. § 122.44(a) .................................................37
40 C.F.R. § 122.44(d) .................................................37
40 C.F.R. § 122.45 .....................................................36
40 C.F.R. § 257.95(a) .................................................36
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
40 C.F.R. § 257.96(a) .................................................36
40 C.F.R. § 257.97(b) .................................................36
40 C.F.R. § 257.98(c) .................................................36
40 C.F.R. §§ 258.50-258.58 .......................................36
40 C.F.R. § 264.90-264.101 .......................................36
Other Authorities
117 Cong. Rec. 38,722 (1971) ....................................20
118 Cong. Rec. 10,666 (1972) ....................................18
118 Cong. Rec. H10272 (daily ed. Oct. 18,
1972) .....................................................................11
118 Cong. Rec. S18554 (daily ed. Oct. 17,
1972) .....................................................................11
123 Cong. Rec. 38,924 (1977) ....................................15
131 Cong. Rec. 15,616 (1987) ....................................15
133 Cong. Rec. 1250 (1987) .......................................14
45 Fed. Reg. 33,084 (May 19, 1980)..........................34
Andrew W. McThenia, Jr., An Examination
of the Federal Water Pollution Control
Act Amendments of 1972, 30 Wash. &
Lee L. Rev. 195 (1973) ......................... 9, 10, 17, 19
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Ass’n of State and Interstate Water
Pollution Control Administrators,
America’s Clean Waters: The States’
Evaluation of Progress 1972-82 (1984),
https://nepis.epa.gov/Exe/ZyPDF.cgi/940
005BE.PDF?Dockey=940005BE.PDF .................14
EPA, A Ground-Water Protection Strategy
for the EPA, EPA Dkt. No. 813R84101,
https://nepis.epa.gov/Exe/ZyPDF.cgi/200
16KK1.PDF?Dockey
=20016KK1.PDF ............................................23, 24
EPA, Baselines for Resource Conservation
and Recovery Act Corrective Action Sites,
https://www.epa.gov/hw/baselinesresource-conservation-and-recovery-actrcra-corrective-action-sites ..................................34
EPA, Chesapeake Bay Total Maximum
Daily Load (Dec. 29, 2010),
https://www.epa.gov/chesapeake-baytmdl/chesapeake-bay-tmdl-document .................26
EPA, Effectiveness of Effluent Guidelines
Program for Reducing Pollutant
Discharges Uncertain, No. 2004-P-00025
(Aug. 24, 2004),
https://www.epa.gov/sites/production/file
s/2015-12/documents/20040824-2004-p00025.pdf ..............................................................25
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
EPA, Final Comprehensive State
Groundwater Protection Guidance, EPA
100-R-93-001 (Dec. 1992),
https://nepis.epa.gov/Exe/ZyPDF.cgi/100
048T6.PDF?Dockey=
100048T6.PDF .....................................................25
EPA, Ground Water Pollution from
Subsurface Excavations, EPA-430/9-732-012 (1973),
https://nepis.epa.gov/Exe/ZyPDF.cgi/200
0Z6YZ.PDF?Dockey=2000Z6YZ.PDF..................22
EPA, Guidance for Federal Land
Management in the Chesapeake Bay,
EPA 841-R-10-02 (May 12, 2010),
https://www.epa.gov/sites/production/file
s/2015-10/documents/chesbay_guidanceall.pdf....................................................................26
EPA, Holyoke Gas & Electric Department
Cabot Street Station; Response to
Comments on Draft Permit No.
MA0001520 (2005),
https://www3.epa.gov/region1/npdes/per
mits/2005/finalma0001520rtc.pdf .......................30
EPA, Interpretative Statement on
Application of the Clean Water Act
[NPDES] Program to Releases from a
Point Source to Groundwater, 84 Fed.
Reg. 16,810 (Apr. 23, 2019) ......................... passim
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
EPA, Legal and Institutional Approaches to
Water Quality Management, Planning,
and Implementation, Tech. Mem. 35
(1977),
https://nepis.epa.gov/Exe/ZyPDF.cgi/200
0YXCY.PDF?Dockey=2000YXCY.PDF .........12, 23
EPA, Memorandum, Interim-Final
Guidance for RCRA Corrective Action
Environmental Indicators (Feb. 5, 1999),
https://archive.epa.gov/epawaste/hazard/
web/pdf/ei_memo.pdf. ..........................................34
EPA, National Nonpoint Source Program: A
Catalyst for Water Quality
Improvements, EPA 841-R-16-009 (Oct.
2016),
https://www.epa.gov/sites/production/file
s/201610/documents/nps_program_highlights_r
eport-508.pdf ........................................................26
EPA, Nonpoint Source Program Success
Story, Kentucky, Upgrading Septic
Systems and Removing Straight Pipes as
Part of Watershed Plan Reduces
Bacteria in Eagle Creek, EPA-841-F-15007UU (Oct. 2015),
https://www.epa.gov/sites/production/file
s/2015-12/documents/ky_eagle.pdf ......................39
x
TABLE OF AUTHORITIES
(continued)
Page(s)
EPA, Nonpoint Source Program Success
Story, Tennessee, Septic Tank Effluent
Pumping Project Improves King Branch,
EPA-841-F-16-001R (Aug. 2016),
https://www.epa.gov/sites/production/file
s/201609/documents/tn_king_branch_508.pdf ........38, 39
EPA, NPDES Permit Writer’s Manual §
8.1.2.3 (Sept. 2010),
https://www.epa.gov/npdes/npdespermit-writers-manual ........................................37
EPA Office of General Counsel,
Memorandum Re: Applicability of
NPDES to Disposal of Pollutants in
Wells (Dec. 13, 1973), available at
https://nepis.epa.gov/Exe/ZyPDF.cgi/910
08WE5.PDF?Dockey=91008WE5.PDF ...............22
EPA, Office of Wastewater Management,
Case Study Short Questionnaire (Jan.
2000),
https://www3.epa.gov/npdes/pubs/casest
udy.pdf..................................................................25
EPA, Office of Water, National Water
Quality Inventory, 1986 Report to
Congress (1987),
https://nepis.epa.gov/Exe/ZyPDF.cgi/200
0LMJF.PDF?Dockey
=2000LMJF.PDF .................................................23
xi
TABLE OF AUTHORITIES
(continued)
Page(s)
EPA Permit No. WI-0073059-1, Statement
of Basis Briefing Memorandum (Apr.
2011); Permit No. WI-0073059-2 (Sept.
2016 Reissuance),
https://www.epa.gov/sites/production/file
s/201702/documents/wi0073059fnlprmt09_22_
2016_0.pdf ............................................................29
EPA, President Clinton’s Clean Water
Inititative, EPA 800-R-94-001 at p. 104,
https://nepis.epa.gov/Exe/ZyPDF.cgi/200
01Q6J.PDF?Dockey=20001Q6J.PDF ..................24
EPA, Response to Public Comments,
NPDES Pesticide General Permit, EPAHQ-OW-2010-0257 (Oct. 31, 2011),
https://www.regulations.gov/document?
D=EPA-HQ-OW-2010-0257-1277 ........................31
EPA, Response to Public Comments, Permit
Nos. MAG910000 and NHG910000
(Mar. 9, 2017),
https://www3.epa.gov/region1/npdes/rem
ediation/ResponsetoComments.pdf .....................32
EPA, Section 319 Nonpoint Source Program
Success Story: Vermont, 841-F-06-0031
(Aug. 2006),
https://www.epa.gov/sites/production/file
s/2015-12/documents/vt_whet.pdf .......................39
xii
TABLE OF AUTHORITIES
(continued)
Page(s)
EPA, Section 319 Nonpoint Source Program
Success Story: Alaska, 841-F-09-001G
(June 2009),
https://www.epa.gov/sites/production/file
s/2015-11/documents/ak_naknek.pdf ..................39
EPA, What is a Nonpoint Source?,
https://19january2017snapshot.epa.gov/
nps/what-nonpoint-source_.html.........................27
Exec. Order No. 11574 (Dec. 23, 1970) .......................9
Fact Sheet, Draft General Permits for
Stormwater Discharges Systems from
Small Municipal Separate Sewer
Systems in Massachusetts (Sept. 30,
2014),
https://www3.epa.gov/region1/npdes/stor
mwater/ma/2014FactSheet.pdf ...........................31
Fact Sheet, Draft NPDES Permit to
Discharge to Waters of the United
States Pursuant to the CWA, Merrimack
Station, Permit No. NH0001465 (Sept.
30, 2011),
https://www3.epa.gov/region1/npdes/mer
rimackstation/pdfs/MerrimackStationFa
ctSheet.pdf .....................................................30, 31
H.R. Rep. No. 92-911 (1972) ...............................12, 13
xiii
TABLE OF AUTHORITIES
(continued)
Page(s)
Lawrence P. Wilkins, The Implementation
of Water Pollution Control Measures –
Section 208 of the Water Pollution
Control Act Amendments, 15 Land &
Water L. Rev. 479 (1980) ............................. passim
Mark J. Miars, The Clean Water Act of
1977: Great Expectations Unrealized, 47
U. Cin. L. Rev. 259 (1978) ...................................11
N. William Hines, History of the 1972 Clean
Water Act: The Story Behind How the
1972 Act Became the Capstone on a
Decade of Extraordinary Environmental
Reforms, 4 Geo. Wash. J. Energy &
Envtl. L. 80 (2013) .........................................10, 11
Robert D. Fentress, Nonpoint Source
Pollution, Groundwater, and the 1987
Water Quality Act: Section 208
Revisited, 19 Envtl. L. 807 (1989) .......................24
S. Rep. 95-370 (1977) .................................... 13, 14, 20
S. Rep. No. 92-414 (1971).............................. 10, 18, 19
S. Rep. No. 99-50 (1985)............................................14
Water Pollution Control Legislation—1971
(Proposed Amendments to Existing
Legislation): Hearings Before the H.
Comm. on Public Works, 92nd Cong.,
(1971)....................................................................18
INTERESTS OF AMICI CURIAE
Amici curiae, listed below, are industry groups
representing a broad cross-section of the Nation’s
energy, manufacturing, mining, and transportation
sectors.1 Their members are often subject to the requirements of the Clean Water Act (CWA), 33 U.S.C.
§§ 1251 et seq.
Edison Electric Institute (EEI) is the national
association of all U.S. shareholder-owned electric
utilities. Its members provide electricity in 50 states
and the District of Columbia for 220 million Americans. As a whole, the electric power industry supports over seven million jobs in communities nationwide. EEI members take environmental stewardship
seriously and advocate for clear, reasonable regulatory programs.
American Fuel & Petrochemical Manufacturers
(AFPM) is a national trade association whose members comprise mostly all United States refining and
petrochemical manufacturing capacity. AFPM’s
members supply customers with a wide variety of
products that Americans use daily in their homes
and businesses. AFPM’s members meet the Nation’s
fuel and petrochemical needs, strengthen economic
and national security, and support nearly three million American jobs.
1 No part of this brief was authored by counsel for any party,
and no person or entity has made any monetary contribution to
the preparation or submission of the brief other than amici curiae and their counsel. Pursuant to Rule 37.3(a), amici state
that counsel of record for Petitioners and Respondents have
consented to the filing of this brief.
2
American Iron and Steel Institute (AISI) is the
voice of the steel industry before policymakers and
the courts, supporting a strong, sustainable industry
that manufactures products to meet society’s needs.
AISI is comprised of 19 member companies, including integrated and electric furnace steelmakers, and
approximately 120 associate members who are suppliers to or customers of the steel industry.
American Petroleum Institute (API) is a nationwide, non-profit trade association that represents
more than 600 companies involved in all aspects of
the natural gas and oil industry and sets standards
for that industry applicable worldwide. API’s members are producers, refiners, suppliers, pipeline operators, and transporters, as well as service and
supply companies.
American Public Power Association is the voice
of not-for-profit, community-owned utilities that
power 2,000 towns and cities nationwide. It represents public power before the federal government to
protect the interests of over 49 million people that its
members serve, and the 93,000 people they employ.
Association of American Railroads (AAR) includes large and small freight railroads, as well as
Amtrak and commuter authorities. AAR appears before Congress, agencies, and courts to advocate for
its members, in addition to establishing operating
standards for the industry. AAR’s members support
the energy, agriculture, and chemicals industries
(among others), transporting products including oil,
coal, fertilizer, and other chemical compounds.
3
International Brotherhood of Electrical Workers
is an unincorporated international labor organization representing approximately 750,000 active
members and retirees working in a variety of fields,
including utilities, construction, telecommunications,
broadcasting, manufacturing, railroads, and government.
National Association of Manufacturers is the
largest manufacturing association in the United
States, representing manufacturers in every industrial sector and all 50 states. Manufacturing employs
more than 12 million people, contributes $2.25 trillion to the economy annually, has the largest impact
of any major sector, and accounts for more than
three-quarters of all private-sector research and development in the nation.
National Mining Association is a not-for-profit
association consisting of over 300 entities involved in
mining, including the producers of most of the nation’s coal, metals, and minerals, as well as the
manufacturers of mining and processing machinery,
equipment, and supplies, engineer and consulting
firms, financial institutions, and other firms serving
the mining industry.
National Rural Electric Cooperative Association
(NRECA) is the association of not-for-profit energy
cooperatives supplying central station service
through generation, transmission, and distribution
of electricity to member-owners, especially those in
rural areas of the United States. NRECA participates in administrative and judicial proceedings involving or affecting its members’ interests.
4
Portland Cement Association (PCA) is the premier policy, research, education, and market intelligence organization serving America’s cement manufacturers. PCA members represent 93% of U.S. cement production capacity with facilities in all 50
states. PCA promotes safety, sustainability, and innovation in all aspects of construction, fosters continuous improvement in cement manufacturing and
distribution, and generally promotes economic
growth and sound infrastructure investment.
Utility Water Act Group (UWAG) is a voluntary,
non-profit, unincorporated group of over 130 energy
companies and three national trade associations of
energy companies. The individual companies own
and operate power plants and other facilities that
generate electricity for residential, commercial, industrial, and institutional customers nationwide.
UWAG participates on behalf of its members in
CWA proceedings, including litigation, that affect
the interests of electric generators.
Amici have a strong interest in the outcome of
this case because their members engage in activities
that, under the Ninth Circuit’s decision, might now
be considered subject to the CWA’s National Pollutant Discharge Elimination System (NPDES) permitting program. The Ninth Circuit’s decision dramatically expands the NPDES permitting program
to encompass what has consistently been considered
nonpoint source pollution, such as releases of pollutants to groundwater that eventually migrate to navigable waters. This expansion upends the careful
balance that Congress struck and maintained between point and nonpoint source pollution control—
and between federal and state authority—at the
5
time it enacted the CWA and in later amendments.
Given the potentially crippling criminal and civil
penalties and the threat of third-party citizen suit
litigation, amici’s members could be exposed to unprecedented CWA liability under the Ninth Circuit’s
ruling.
INTRODUCTION AND SUMMARY
OF ARGUMENT
In 1972, Congress carefully limited the scope of
the CWA’s NPDES permit program to cover only discharges of pollutants from discernible, confined, discrete conveyances, or “point sources,” into “navigable
waters.” See 33 U.S.C. § § 1311(a), 1362(14). Correspondingly, Congress deliberately excluded from
NPDES coverage the pollution of “navigable waters”
caused by contaminated groundwater and other diffuse mechanisms. Congress reaffirmed that limitation several times thereafter, repeatedly choosing
not to extend NPDES permitting requirements to a
broader range of water pollution despite fully recognizing the myriad connections that exist between
groundwater and surface waters. Instead, Congress
repeatedly reiterated its intent that contaminated
groundwater and other diffuse sources of pollution
be addressed through state programs regulating pollution from nonpoint sources and through other federal environmental statutes. This is because such
programs are far better suited than the NPDES program to control potential sources of pollutants that
may migrate to navigable waters via diffuse mechanisms like groundwater.
The Ninth Circuit’s decision upends Congress’s
carefully crafted focus on how pollutants enter navi-
6
gable waters. By extending the NPDES program to
virtually all pollution that ultimately reaches navigable waters, the Ninth Circuit has eviscerated Congress’s deliberate delineation of federal and state authorities and responsibilities, and displaced regulatory programs far better suited than the NPDES
program to address the migration of pollutants to
surface waters via diffuse media like groundwater.
I. The Ninth Circuit’s extension of the NPDES
permitting requirements to any release of pollutants
traceable to a point source that eventually reaches a
navigable water runs roughshod over Congress’s
careful design. It ignores Congress’s intent to limit
the NPDES program to circumstances in which a
point source conveys pollutants into navigable waters, and to leave other kinds of water pollution—
including releases to groundwater that ultimately
reach “navigable waters”—to be controlled under
state programs and other federal pollution control
statutes such as the Resource Conservation and Recovery Act (RCRA).
II. The Ninth Circuit’s broad application of
NPDES permit requirements to releases to groundwater is at odds with most of EPA’s statements and
actions over the past forty-seven years, which have
largely respected Congress’s careful balance between
federal regulation of a limited set of point source discharges into navigable waters and the states’ broader authority to address water pollution from
groundwater and other nonpoint sources.
III. The Ninth Circuit’s decision has major implications for the scope and application of other water pollution programs. By expanding the NPDES
7
program to cover any pollutant found in a navigable
water that can be fairly traced back to some point
source that released pollutants to groundwater (or
some other similarly diffuse mechanism) at some
point in the past, the Ninth Circuit’s ruling diminishes the coverage of RCRA as well as the CWA Section 319 nonpoint source program. Yet those regulatory regimes are far better suited to address the pollution of navigable waters by contaminated groundwater than the NPDES program, which imposes requirements that are difficult, if not impossible, to
apply to such pollution. In short, the Ninth Circuit’s
decision is not only legally unsound and practicably
problematic, but perversely may result in less effective overall protection of water quality.
To require that every landowner or facility operator obtain a federally enforceable NPDES permit
simply because pollutants in groundwater eventually
migrate to navigable water from some discrete
source on their property or at their facility is beyond
the sensible reach of the CWA. Congress has long
recognized as much, as has EPA for much of the time
since the CWA’s inception. Because the decision below conflicts with Congress’s intent and risks displacing other federal and state programs far better
tailored than NPDES to address the pollution of surface waters by contaminated groundwater or other
similarly diffuse sources, the Court should reverse.
8
ARGUMENT
I. BY IGNORING HOW POLLUTANTS REACH
NAVIGABLE
WATERS,
THE
NINTH
CIRCUIT HAS UPSET THE CAREFUL BALANCE CONGRESS STRUCK IN THE CLEAN
WATER ACT.
Petitioners ably explain that the statutory definitions of “point source” and “discharge of a pollutant,”
33 U.S.C. § 1362(12) & (14), read in conjunction with
other relevant provisions such as CWA Section 402,
33 U.S.C. § 1342, do not bring groundwater pollution
within the scope of the NPDES program, even if the
pollutants in that groundwater eventually reach
navigable waters. The Act’s history confirms this
reading of the statute and Congress’s intent.2 Amici
will therefore focus on the many ways in which the
Ninth Circuit’s decision is irreconcilable with Congress’s intent in enacting the CWA in 1972 and
amending it in 1977 and 1987.
2 See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
147 (2000) (noting that, while the Court is governed by the
“provisions of our laws, rather than the principle concerns of
our legislators,” Congress’s “intent is certainly relevant” in assessing the former and exhaustively analyzing the history of
the Food, Drug, and Cosmetic Act as well as decades of tobacco
legislation); Loving v. IRS, 742 F.3d 1013, 1016 (D.C. Cir. 2014)
(court “must employ all tools of statutory interpretation, including . . . structure, purpose, and legislative history”).
9
A. Congress Struck and Maintained a
Careful
Balance
Between
Federal
Regulation of Certain Point Source Discharges Into Navigable Waters and
States’ Broader Authority to Address Water Pollution.
The CWA was not written on a blank slate. Rather, it reflected a careful balance between two historical lines of thought regarding how best to attack
the problem of water pollution and divide authority
for addressing that problem between states and the
federal government.
The first approach was drawn from the 1899 Refuse Act, 33 U.S.C. § 407 et seq., which prohibited
discharges into navigable waters except pursuant to
a permit issued by the Army Corps of Engineers.
Shortly before passage of the 1972 Act, this Court
dramatically expanded the scope of the Refuse Act
permit program. See United States v. Standard Oil,
384 U.S. 224, 228-30 (1966) (interpreting Refuse Act
to require permits for all discharges into navigable
waters, even if they did not impede navigation). In
the wake of Standard Oil, the federal government
launched the “Refuse Act Permit Program,” under
which all discharges to navigable waters were to be
subject to federal permits. See Exec. Order No. 11574
(Dec. 23, 1970). Not surprisingly, that program
quickly proved unmanageable. Within a year, over
19,000 applications had been submitted but only 17
permits had issued. See Andrew W. McThenia, Jr.,
An Examination of the Federal Water Pollution Control Act Amendments of 1972, 30 Wash. & Lee L.
Rev. 195, 196 n.4 (1973). Although the NPDES program was “patterned after” the Refuse Act’s permit
10
requirement, id. at 204, it was with that cautionary
lesson fresh in mind that Congress determined to set
a far narrower scope for the CWA’s NPDES program.
The second historical approach to controlling water pollution on which Congress drew centered on
state- and locality-led assessment and remediation of
water pollution. This approach had been the centerpiece of the 1948 Federal Water Pollution Control
Act and the 1965 Water Quality Act, both of which
incentivized the individual states to establish and
enforce water quality standards. See Pub. L. No. 80845, 62 Stat. 1155 (1948) & Pub. L. No. 89-234
(1965).3 By the early 1970s, Congress recognized
that this state-led approach alone was “inadequate
in every vital respect” and insufficient to restore the
integrity of the nation’s waters. See Milwaukee v. Illinois, 451 U.S. 304, 310-11 (1981) (quoting S. Rep.
No. 92-414 (1971)). The state-led approach nonetheless remained a key component of Congress’s subsequent actions to address water pollution. See 33
U.S.C. § 1313.
In the 1972 Act, Congress struck a delicate and
revolutionary balance between those two historical
approaches—one focused on regulating through federal permits specific classes of discharges into navigable waters, and the other on addressing water
quality holistically through state standards and implementation plans. See N. William Hines, History of
The 1966 Clean Water Restoration Act reinforced this approach, authorizing federal expenditures to assist localities in
financing sewage treatment facilities. See Pub. L. No. 89-753,
80 Stat. 1247 § 205 (1966).
3
11
the 1972 Clean Water Act: The Story Behind How the
1972 Act Became the Capstone on a Decade of Extraordinary Environmental Reforms, 4 Geo. Wash. J.
Energy & Envtl. L. 80, 99 (2013) (“Under the CWA,
Congress intended for both forms of regulation to be
utilized and interconnected.”). Each approach had its
advocates. Senator Muskie was the main champion
of the federally-mandated, technology-based effluent
limitation approach. EPA Director William Ruckelshaus and New York Governor Nelson Rockefeller
expressed serious concerns about the goals, means,
and costs of that approach; they favored a statecentered solution. See id. at 94-97.
Generally, the Senate bill tilted in favor of technology-based effluent limitations applied via federal
discharge permits, while the House favored a smaller federal role and more state programming. Id. at
95-97. The final result was a landmark Act that, for
the first time, incorporated and balanced both approaches in one law. See Mark J. Miars, The Clean
Water Act of 1977: Great Expectations Unrealized, 47
U. Cin. L. Rev. 259 (1978) (“The 1972 amendments
were a unique change in direction for the water pollution control policy of this country. The focus split
to examine particular effluent discharges as well as
ambient water quality.”). Congress showed its overwhelming support for that balance by overriding
President Nixon’s veto by strikingly wide margins in
both chambers. See 118 Cong. Rec. H10272 (daily ed.
Oct. 18, 1972) (247 to 23 votes); 118 Cong. Rec.
S18554 (daily ed. Oct. 17, 1972) (52 to 12 votes).
The NPDES permit program was undoubtedly a
core piece of the 1972 Act. But it was Section 208
that was proclaimed by the House Committee on
12
Public Works as “the most important aspect of [the
Act’s] water pollution control strategy.” H.R. Rep.
No. 92-911 (1972). Section 208 instructed states to
identify areas having serious water pollution problems; develop plans to address those problems; and
manage wastewater treatment for each area—all
through extensive consultation between EPA, state,
and local officials. See 33 U.S.C. § 1288.4
The Act’s demands on the states were a tall order.5 To aid them in their task, Congress enacted
Section 304(f), requiring EPA to provide “guidelines
for identifying and evaluating the nature and extent
of nonpoint sources of pollution,” as well as “processes, procedures, and methods to control” such pollution—including pollution “resulting from . . . disposal
. . . in wells or in subsurface excavations.” 33 U.S.C.
§ 1314(f)(2)(D). Again emphasizing the importance of
that piece of the pollution control puzzle, the House
Report declared Section 304(f) “and the information
on such nonpoint sources . . . among the most im-
4 See also Lawrence P. Wilkins, The Implementation of Water
Pollution Control Measures – Section 208 of the Water Pollution
Control Act Amendments, 15 Land & Water L. Rev. 479, 484-86
(1980) (describing 33 U.S.C. § 1288(b)).
5 EPA soon recognized the difficulty of the states’ task: “Regula-
tion of nonpoint sources . . . are traditionally local prerogatives.
Displacing or even sharing these with regional or state governments engenders opposition.” EPA, Legal and Institutional
Approaches to Water Quality Management, Planning, and Implementation,
Tech.
Mem.
35
at
I-9
(1977),
https://nepis.epa.gov/Exe/ZyPDF.cgi/2000YXCY.PDF?Dockey=2
000YXCY.PDF.
13
portant [provisions] in the [1972 Act].” H.R. Rep. No.
92-911, at 109.
By 1977, Congress grew concerned that the
CWA’s nonpoint source programs might not be sufficient to achieve their lofty goals. See S. Rep. 95-370
(1977) at 9-10 (discussing the Committee on Environment and Public Works’ concerns with progress
under Section 208 and noting that “the committee
examined a variety of ways to strengthen the implementation of the 208 program”). Notably, however, Congress’s response was not to expand the scope
of the NPDES program at the expense of state authority. See id. at 9 (“[b]etween requiring regulatory
authority for nonpoint sources, or continuing the section 208 experiment, the committee chose the latter
course”). Instead, Congress strengthened Section
208, offering financial incentives to rural landowners
to implement “best management practices to control
nonpoint source pollution.” 33 U.S.C. § 1288(j); see
also Robert D. Fentress, Nonpoint Source Pollution,
Groundwater, and the 1987 Water Quality Act: Section 208 Revisited, 19 Envtl. L. 807, 817 (1989) (discussing 1977 amendments to the Section 208 nonpoint source program).
Congress explained at the time that it still believed it best to leave the task of addressing “vexing
nonpoint source problems” to “the level of government closest to the sources of the problem.” S. Rep.
No. 95-370 (1977), at 9-10. Congress speculated that
it “may be that sometime in the future a Federal
presence can be justified,” but reiterated that “it is
both necessary and appropriate to make a distinction
as to the kinds of activities that are to be regulated
by the Federal Government,” and “the kinds of activ-
14
ities which are to be subject to some measure of local
control.” Id.
Congress further amended the Act in 1987. Concerns were raised that Section 208 was inadequate
to mitigate nonpoint source pollution. See S. Rep.
No. 99-50, at 7-8 (1985) (“nonpoint pollution looms as
a larger and larger problem”).6 But again, Congress
did not elect to expand the NPDES permit program.
Instead, it added yet another nonpoint program: Section 319. See Water Quality Act of 1987, § 316, 33
U.S.C. § 1329 (1987). During debate on this provision, Senator Baucus explained that it “represent[s]
a renewed commitment to the cleanup of nonpoint
sources of pollution and establish[es] a national policy that programs for the control of nonpoint sources
of pollution be implemented.” 133 Cong. Rec. 1250,
1271 (1987).
Among other things, Section 319 requires states
to identify “best management practices” and
measures to reduce pollutant loadings from “categories and subcategories of nonpoint sources” and even
“particular nonpoint sources which add significant
pollution” and to account for the impact of those
practices on groundwater quality. 33 U.S.C.
§§ 1329(b)(1)(B), (b)(2)(A). States also must monitor
and report their progress to EPA. Id. § 1329(h). Of
6 The year prior, the states had ranked nonpoint sources as the
major cause of water pollution. See Ass’n of State and Interstate Water Pollution Control Administrators, America’s Clean
Waters: The States’ Evaluation of Progress 1972-82 (1984),
https://nepis.epa.gov/Exe/ZyPDF.cgi/940005BE.PDF?Dockey=9
40005BE.PDF.
15
particular note, Section 319 made substantial grant
funding available to states for implementing nonpoint source pollution management plans, as well as
lesser grants specifically for protecting groundwater.
Id. § 1329 (h-j). Thus, in 1987 Congress reaffirmed
its commitment to addressing diffuse sources of pollution—such as pollution from groundwater and
runoff—through the CWA’s nonpoint source programs, not the NPDES program.
In fact, when Congress reaffirmed and strengthened the Act’s nonpoint source programs in 1977 and
1987, it simultaneously limited the scope of the
NPDES program. In 1977, Congress recognized that
permitting “every discrete source” discharging into
navigable waters was already “too burdensome” and
a strain on EPA’s resources; Congress therefore
chose to exempt from the NPDES program return
flows from irrigated agriculture. See 123 Cong. Rec.
38,924, 38,956 (1977) (statement of Rep. Roberts).
Similarly, when enacting an amendment in 1987 exempting from NPDES requirements most discharges
composed entirely of stormwater, Congress opined
that requiring every point source discharger of
stormwater (such as parking lots and mom-and-pop
stores) to obtain a federal NPDES permit would be
“absurd,” “prohibitively expensive,” and an “administrative nightmare” that would leave regulators “literally swamped under a mountain of paperwork.”
131 Cong. Rec. 15,616, 15,657 (1987) (statements of
Senators Mattingly and Wallop); see also Decker v.
Nw. Envtl. Def. Ctr., 568 U.S. 597, 602-03 (2013) (describing EPA’s difficulties in processing permit applications and the consequent 1987 stormwater
amendments).
16
The decision below is not only at odds with Congress’s repeated efforts to strengthen nonpoint
source programs, but also with Congress’s simultaneous actions to narrow the scope of the NPDES
program to a manageable subset of point source discharges into navigable waters. Left in place, the
Ninth Circuit’s decision would transform the carefully constructed and purposefully limited NPDES program into an unworkable behemoth far beyond
EPA’s capacity to administer—to the detriment of
the tens of thousands, if not millions, of entities who
would potentially be subject to that grossly expanded
regime. The administrative nightmare that would
ensue if the Ninth Circuit’s decision were left standing would dwarf that which Congress specifically intervened to stave off through the 1987 amendments.
B. Congress Effectuated the Balance Struck
in the 1972 Act by Drawing a “Clear and
Precise” Line Between Point and
Nonpoint Source Pollution.
At the heart of the balance struck in the 1972 Act
between federally-mandated NPDES permitting and
broader state efforts to abate water pollution was
Congress’s distinction between point and nonpoint
sources of pollution. Congress defined “point source”
as “any discernable, defined, and discrete conveyance . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The definition thus
was not intended to be all-encompassing; it left an
expansive universe of water pollution to be addressed through state-run nonpoint source pro-
17
grams.7 Indeed, Section 208 explicitly required state
plans to address water pollution from agricultural
runoff, surface and underground mine runoff, and
residual waste disposal. See 33 U.S.C. § 1288(b)(2)
(F-J). These are exactly the types of pollution the
Ninth Circuit’s decision could unreasonably drag into the NPDES permit program by requiring federal
regulation of any pollutant found in a navigable water traceable back to its origin.8
Prior to 1972, where to draw the line between
the two categories of water pollution and their associated programs was the subject of intense debate.
Congress specifically considered, but ultimately rejected, extending NPDES requirements to pollutants
released to groundwater that connects to navigable
waters. EPA Administrator Ruckelshaus argued before the House Committee on Public Works that pol7 Scholarship assessing the Act shortly after its passage reflects
this understanding of Congress’s intent and the breadth of the
nonpoint source pollution category. See McThenia, 30 Wash. &
Lee Rev. at 212 (noting that estimates put “wastes which enter
watercourses through runoff from land or other diffuse means
(non-point sources)” at between “30% to 75% of the total pollution load of the nation’s waters”).
8 The important point is not where the pollution originated in
the first instance, but how it enters navigable waters. Indeed,
the question presented does not ask whether particular instrumentalities at issue qualify as “point sources,” but rather
“[w]hether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters
by a nonpoint source, such as groundwater.” Pet. Br. i (emphasis added). The answer is “no.” As the history discussed herein
makes clear, how pollutants enter or are added into navigable
waters is critical; it determines which regulatory programs and
sovereigns are best suited to regulate.
18
luted groundwater should be wrapped into the
NPDES program because it can reach navigable waters “through the ground water table.” Water Pollution Control Legislation—1971 (Proposed Amendments to Existing Legislation): Hearings Before the
H. Comm. on Public Works, 92nd Cong., at 230
(1971) (statement of Hon. William Ruckelshaus,
Administrator, EPA).
Representative Aspin similarly proposed extending NPDES permitting to releases to groundwater—
including by adding the term “ground waters” to the
definition of “discharge of a pollutant,” because: “If
we do not stop pollution of ground waters through
seepage and other means, ground water gets into
navigable waters[.]” 118 Cong. Rec. 10,666 (1972).
Congress nonetheless declined to extend the
NPDES program to cover releases to groundwater.
Rising to oppose Representative Aspin’s proposed
amendment, Representative Clausen explained that
“in the early deliberations within the committee . . .
a provision for ground waters, similar to that suggested [by Rep. Aspin,] was thoroughly reviewed and
it was determined by the committee that there was
not sufficient information on ground waters to justify
the types of controls that are required for navigable
waters.”9 See S. Rep. No. 92-414, at 73 (1971) (“SevOther Congressmen expressed similar views. See, e.g., 118
Cong. Rec. at 10669 (statement of Rep. Sisk of California) (“I
recognize the possibility of the pollution of ground water, but
this whole matter at this point in time, with little more
knowledge than we have, bringing this ground water under this
type of control, is improper, and I think a very dangerous thing
(continued...)
9
19
eral bills pending before the Committee provided authority to establish Federally approved standards for
groundwaters. . . . Because the jurisdiction regarding
groundwaters is so complex and varied from State to
State, the Committee did not adopt this recommendation.”).
Congress plainly recognized the connection between groundwater pollution and surface water contamination but again chose to leave to the states the
matter of addressing groundwater pollution. See Andrew W. McThenia, Jr., An Examination of the Federal Water Pollution Control Act Amendments of
1972, 30 Wash. & Lee L. Rev. 195, 196 n.4 (1973)
(“the protection of groundwater is generally left to
the states”). Now, the Ninth Circuit seeks to accomplish through judicial fiat that which Congress explicitly decided not to do in 1972.
As additional support for its decision not to extend federal NPDES requirements more broadly,
Congress also explained that “many nonpoint
sources of pollution are beyond present technology of
control” and therefore decided to focus EPA’s efforts
on those discharges more easily addressed by technological controls. See S. Rep. No. 92-414, at 39 (1971).
This reflected concerns articulated by the Act’s
drafters. Senator Muskie, for instance, noted that
“[t]here is no effective way, as of yet, other than land
control, by which you can intercept runoff and control it in the way that you do a point source.”
________________________
(continued...)
to do. I would certainly hope that the House would not adopt
the amendment.”)
20
117 Cong. Rec. 38,722, 38,825 (1971). Congress
therefore chose to draw a line between easier-toregulate point source discharges into navigable waters, and indirect sources of pollution through hardto-regulate media such as groundwater. Federallymandated permitting efforts were directed toward
the former, leaving the latter to the states.
Five years after enacting the CWA, Congress explained that in the 1972 Act it had drawn a “clear
and precise distinction between point sources, which
[are] subject to direct Federal regulation, and nonpoint sources, control of which was specifically reserved to State and local governments.” S. Rep. No.
95-370, at 8 (1977). In 2008, the Ninth Circuit correctly described that distinction as an “organizational paradigm of the [CWA].” Or. Nat. Desert Ass’n v.
U.S. Forest Serv., 550 F.3d 778, 780 (9th Cir. 2008).
Yet now, it has taken a wrecking ball to that paradigm.
The legislative history discussed above makes
clear that, where pollutants reach navigable waters
via groundwater or a similarly diffuse medium, Congress intended such pollution to be addressed by
other state or federal programs. The Ninth Circuit’s
application of NPDES permitting requirements
wherever pollution in a navigable water can fairly be
traced to some discernible, confined, and discrete
origin, no matter how the pollutants reached and entered the navigable water, would render the Act’s
distinction between point and nonpoint source pollution a practical nullity, leaving a near-empty set on
the other side of Congress’s “clear and precise” line.
See S. Rep. No. 95-370, at 8. EPA would be faced
with the prospect of permitting a potentially limit-
21
less universe of discharges under the NPDES program—something Congress has taken great pains to
avoid. Indeed, the Ninth Circuit all but acknowledged this when it left “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 (emphasis added).
The Court should reverse the Ninth Circuit’s decision and restore the careful balance Congress has
continuously maintained between the differing approaches to abate water pollution.
II. RESPECTING CONGRESS’S INTENT, EPA
HAS MOSTLY DECLINED TO REGULATE
RELEASES TO GROUNDWATER UNDER
THE NPDES PROGRAM.
Since the inception of the NPDES program, EPA
has made statements and undertaken permitting actions demonstrating that, consistent with Congress’s
intent, releases to groundwater are nonpoint source
pollution for which no NPDES permit is required—
even if such pollution may reach navigable waters.
While EPA has not been perfectly consistent, the
weight of the Agency’s actions over the past fortyseven years falls heavily against regulating releases
to groundwater under the NPDES program.
A. For Decades, EPA Has Indicated That
Releases to Groundwater Are Beyond the
Scope of the NPDES Program.
Soon after Congress passed the 1972 Act, EPA
began interpreting the NPDES program as excluding
releases to groundwater, even where pollutants
22
might reach navigable waters. In a 1973 memorandum, EPA addressed the applicability of the NPDES
program to disposals of pollutants into wells at facilities that had existing surface water discharges.
EPA, Office of General Counsel, Memorandum Re:
Applicability of NPDES to Disposal of Pollutants in
Wells at 194-96 (Dec. 13, 1973).10 The Agency confirmed that the term “discharge of a pollutant . . . include[s] only discharges to navigable waters,” and
that “[d]ischarges into ground waters are not included.” Id. at 3 (emphasis added). The same year, EPA’s
“Non-Point Source Control Division” published
guidelines addressing groundwater pollution from
excavated features such as landfills, basins, and pits,
but did not point to the NPDES program as controlling such pollution despite recognizing that polluted
groundwater from these sources causes surface water pollution. EPA, Ground Water Pollution from
Subsurface Excavations, EPA-430/9-73-2-012 at 1,
123-35, 151-77 (1973).11 EPA instead recommended
that states employ control measures. See id.
In 1977, an EPA technical manual discussing
releases from injection wells to groundwater noted:
“Although NPDES permits are required for discharges of pollutants into ‘waters of the United
States,’ that language has not been broadly interpreted to include groundwaters.” EPA explained that
it therefore exercised jurisdiction only over well dis10 https://nepis.epa.gov/Exe/ZyPDF.cgi/91008WE5.PDF?Dockey
=91008WE5.PDF.
11 https://nepis.epa.gov/Exe/ZyPDF.cgi/2000Z6YZ.PDF?Dockey=
2000Z6YZ.PDF.
23
posal systems “when they are part of an activity requiring an NPDES permit[.]” EPA, Legal and Institutional Approaches to Water Quality Management,
Planning, and Implementation, EPA Tech. Mem. 35,
at XI-3 (1977).12
In EPA’s first attempt to comprehensively address groundwater pollution in 1984, the Agency
identified various sources of such pollution such as
“landfills/lagoons,” “septic tanks,” “chemical oil and
brine spills,” and “well injection[s].” EPA, A GroundWater Protection Strategy for the EPA, EPA Dkt. No.
813R84101 at 13.13 EPA conspicuously identified
Section 208’s planning provisions, but not the
NPDES program, as the CWA tools available to address releases to groundwater from such sources. Id.
at 31 and Attach. II (pp. 2, 4 & 6).
In a 1986 water quality inventory, EPA likewise
identified nonpoint sources of pollution as including
runoff from mining areas and other sources, septic
tanks, and “landfill leachate.” EPA, Office of Water,
National Water Quality Inventory, 1986 Report to
Congress, at 80 (1987) (“1986 Inventory”).14 Some of
those pollution problems occurred through ground-
12 https://nepis.epa.gov/Exe/ZyPDF.cgi/2000YXCY.PDF?Dockey
=2000YXCY.PDF.
https://nepis.epa.gov/Exe/ZyPDF.cgi/20016KK1.PDF?Dockey
=20016KK1.PDF.
13
https://nepis.epa.gov/Exe/ZyPDF.cgi/2000LMJF.PDF?Dockey
=2000LMJF.PDF.
14
24
water migration.15 EPA also noted that septic systems, landfills, pits, and impoundments were significant contributors to groundwater pollution. 1986 Inventory at 60-61. EPA thus understood the link between seepage from underground and surface structures, groundwater contamination, and surface water pollution. But EPA respected Congress’s intent
and did not suggest that the link brought those types
of releases within the scope of the NPDES program.
In the 1990s, EPA’s messaging regarding the
scope of the NPDES program admittedly grew
somewhat more mixed. For example, in February
1994, EPA proposed a “Clean Water Initiative” at
the behest of President Clinton that contemplated
requiring NPDES permits for some “discharges” to
groundwater with a “direct hydrological connection”
to surface waters. See EPA 800-R-94-001 at p. 104.16
But EPA seemingly recognized that the NPDES program as enacted likely did not cover such “discharges,” and so suggested that Congress amend the Act to
bring them within the program’s scope. See id. at
104-05. EPA also recognized that fact in a 1992
guidance document addressing groundwater protection, noting that EPA “and the states regulate facili15 During this time period, EPA did not often explicitly refer-
ence “groundwater” (whereas it often mentioned “runoff”), as
“not much [was] known about the overall quality of groundwater in the United States because of groundwater’s relative inaccessibility.” Robert D. Fentress, Nonpoint Source Pollution,
Groundwater, and the 1987 Water Quality Act: Section 208 Revisited, 19 Envtl. L. 807, 815 (1989).
16 https://nepis.epa.gov/Exe/ZyPDF.cgi/20001Q6J.PDF?Dockey=
20001Q6J.PDF.
25
ties that either discharge directly to surface waters
or discharge to municipal wastewater treatment systems” (as opposed to indirectly via groundwater or
other diffuse mediums). EPA, Final Comprehensive
State Groundwater Protection Guidance, EPA 100-R93-001, at 1-27 (Dec. 1992).17
In 2000, EPA sent a questionnaire to facilities
using large quantities of cooling water, instructing
facilities that discharge 100 percent of their effluent
to groundwater injection wells to categorically answer “no” to the question of whether “the facility
ha[s] or is . . . in the process of obtaining a . . .
NPDES . . . permit,” regardless of any potential for
eventual migration to navigable waters. EPA, Office
of Wastewater Management, Case Study Short
Questionnaire at 3 (Jan. 2000).18 In 2004, EPA reiterated in a report on effluent guidelines that “National [NPDES] regulations apply to . . . [e]xisting
facilities that discharge [pollutants] directly to surface waters,” not to those that release pollutants that
reach navigable waters only indirectly via groundwater. EPA, Effectiveness of Effluent Guidelines Program for Reducing Pollutant Discharges Uncertain,
No. 2004-P-00025, Chapter 1, p.2 (Aug. 24, 2004).19
In the 2010 Total Maximum Daily Load for the
Chesapeake Bay, EPA again evinced its view that
17 https://nepis.epa.gov/Exe/ZyPDF.cgi/100048T6.PDF?Dockey=
100048T6.PDF.
18 https://www3.epa.gov/npdes/pubs/casestudy.pdf.
19 https://www.epa.gov/sites/production/files/2015-
12/documents/20040824-2004-p-00025.pdf.
26
nonpoint source pollution includes releases from septic systems, wells, and similar structures to groundwater that later reach navigable waters such as the
Chesapeake Bay: “Nonpoint source pollution generally results from . . . drainage and seepage.” EPA,
Chesapeake Bay Total Maximum Daily Load, at 428, 4-37 to 4-38 (Dec. 29, 2010).20 Similarly, in EPA’s
2010 Guidance for Federal Land Management in the
Chesapeake Bay Watershed, the Agency identified
large nonpoint contributors of nutrients to the Bay
as including “septic systems,” as well as “atmospheric deposition, wastewater, and urban/suburban
lands,” the last two of which would reach the Bay
through a combination of groundwater migration
and stormwater runoff. EPA 841-R-10-02 at 4-2
(May 12, 2010).21
In 2016, EPA described the successes of state
nonpoint source management projects receiving federal funding under CWA Section 319, including 177
projects addressing waste disposal facilities such as
malfunctioning septic systems and leaking storage
tanks. See EPA, National Nonpoint Source Program:
A Catalyst for Water Quality Improvements, EPA
841-R-16-009, at 8 (Oct. 2016).22 The Agency thus
again recognized that releases of pollutants to
groundwater—the problem being addressed by those
20 https://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-
tmdl-document.
21 https://www.epa.gov/sites/production/files/2015-
10/documents/chesbay_guidance-all.pdf.
22 https://www.epa.gov/sites/production/files/2016-
10/documents/nps_program_highlights_report-508.pdf.
27
federally-funded Section 319 projects—are subject to
state regulation and programming, not federal
NPDES permitting.
As late as January 2017, EPA’s website answered
the question “What is a Nonpoint Source?” by pointing to pollution from “land runoff, precipitation, atmospheric deposition, drainage, seepage, or hydrological modification.” EPA, What is a Nonpoint
Source? (historical view of EPA website).23 Several of
those mechanisms encompass releases from structures like septic tanks that might be subject to
NPDES requirements if they empty into navigable
waters, but that have historically been viewed by
EPA as excluded from NPDES coverage when they
empty into groundwater.
Most recently, the Agency reiterated its original
view of the scope of the NPDES program in an April
12, 2019, interpretative statement. EPA informed
the public that, after reviewing the CWA, judicial
decisions, and its own past actions, it concluded:
[T]he Act is best read as excluding all releases of
pollutants from a point source to groundwater
from NPDES program coverage and liability under Section 301 of the CWA, regardless of a hydrologic connection between the groundwater and
jurisdictional surface water.
EPA, Interpretative Statement on Application of the
Clean Water Act [NPDES] Program to Releases from
23 https://19january2017snapshot.epa.gov/nps/what-nonpoint-
source_.html.
28
a Point Source to Groundwater, 84 Fed. Reg. 16,810,
16,811 (Apr. 23, 2019). EPA explained that the statute’s text, structure, and legislative history showed
that Congress “purposely structured the CWA to
give states the responsibility to regulate” releases to
groundwater. Id. In stark contrast, other federal
statutes “contain explicit provisions that regulate
the release of pollutants into groundwater.” Id.
In short, since enactment of the CWA, EPA has
largely agreed with Petitioners and amici that surface water pollution that results from releases to
groundwater from structures like wells constitutes
nonpoint source pollution and is beyond the scope of
the NPDES program.
B. EPA’s Permitting Decisions Reflect
Congress’s Intent Not to Extend the
NPDES Program to Releases to Groundwater.
While again not perfectly uniform, EPA’s implementation of the NPDES permit program reflects
its longtime understanding that releases to groundwater do not require NPDES permits, even where
pollutants may ultimately reach navigable waters.
Amici are aware of limited instances in which
EPA has directly regulated releases to groundwater
under the NPDES program because of a hydrological
connection with navigable water.24 For instance,
Parties favoring application of NPDES requirements to
groundwater pollution have pointed to a few other permits
mentioning groundwater. But in none of those did EPA assert
(continued...)
24
29
EPA issued NPDES permits for a wastewater treatment facility operated by the Menominee Indian
Tribe of Wisconsin to address releases to groundwater that connected to nearby Tourtillotte Creek. See
EPA, Permit No. WI-0073059-1, Statement of Basis
Briefing Memorandum (Apr. 2011); Permit No. WI0073059-2 (Sept. 2016 Reissuance).25 EPA admitted
that “NPDES permits are generally not needed for
facilities that do not have a direct discharge to surface waters[.]” EPA, Permit WI-0073059 at 2. But
EPA attempted to distinguish the Menominee facility by arguing that a report assessing leakage into
the creek “makes it clear that . . . groundwater beneath the site has a direct hydrological connection to
the adjacent surface water,” and that “the existing
discharge plume is already reaching Tourtillotte
Creek.” Id. While EPA’s issuance of NPDES permits
to the Menominee facility was improper, it is telling
that EPA itself emphasized that permits are not typically required for discharges that are not made into
surface waters.
________________________
(continued...)
its authority to issue the permit based on releases to groundwater. See, e.g., EPA, Permit No. WA0023434 at 5, 12 (permitting the discharge of pollutants from “outfalls . . . to the
Quinault River,” but also requiring emergency planning to protect the public from any overflow of wastewater that might infiltrate the water supply). While one might debate whether it is
appropriate to use an NDPES permit to impose requirements
on a permittee not directly linked to a permitted discharge,
these types of ancillary requirements do not constitute an EPA
exercise of NPDES jurisdiction over releases to groundwater as
such.
https://www.epa.gov/sites/production/files/201702/documents/wi0073059fnlprmt09_22_2016_0.pdf.
25
30
Conversely, EPA has frequently declined to regulate releases to groundwater through NPDES permits even where there was an apparent connection
between those releases and pollutants found in navigable waters. For example, in 2005, EPA responded
to comments on a draft NPDES permit for a gas and
electric facility on the banks of a tributary to the
Connecticut River. Discussing the circumstances under which the facility might require an NPDES permit, EPA counseled that, if the facility redirected its
discharges “to a non-surface water discharge location, such as a ground injection,” then “[NPDES]
permit requirements would not apply, because there
would be no direct discharge to a surface water of
the United States.” EPA, Holyoke Gas & Electric
Department Cabot Street Station; Response to
Comments on Draft Permit No. MA0001520 at 20.26
EPA thereby confirmed that releases of pollutants
into groundwater do not require an NPDES permit.
Similarly, in 2011 EPA removed from a draft
NPDES permit for the Public Service of New Hampshire’s Merrimack Station provisions covering discharges from the facility’s roof drains. In a fact sheet
accompanying the draft permit, EPA explained that
discharges from roof drains were not covered precisely because “the roof drains convey rain water . . . and
drain it into the ground,” and so “do not constitute a
point source with a direct discharge to the [nearby]
Merrimack River.” EPA, Fact Sheet, Draft NPDES
Permit to Discharge to Waters of the United States
26 https://www3.epa.gov/region1/npdes/permits/2005/finalma00
01520rtc.pdf.
31
Pursuant to the CWA, Merrimack Station, Permit
No. NH0001465, at 17 (Sept. 30, 2011).27
EPA’s discussions of various NPDES general
permits likewise confirm the Agency’s general view
that NPDES permitting requirements do not apply
to releases to groundwater, regardless of whether
pollutants in that groundwater eventually reach
navigable waters. In 2011, EPA responded to a
comment suggesting that an NPDES general permit
for pesticides address groundwater contamination by
categorically stating: “discharges to groundwater are
not regulated under the NPDES program.” EPA, Response to Public Comments, NPDES Pesticide General Permit, EPA-HQ-OW-2010-0257 (Oct. 31, 2011)
at xxii.28 And in a 2014 fact sheet addressing general
permits for stormwater discharges from municipal
sewer systems, EPA stated that “discharges to
groundwater are not addressed in the NPDES permit program and as such are not addressed by this
permit.” EPA, Fact Sheet, Draft General Permits for
Stormwater Discharges Systems from Small Municipal Separate Sewer Systems in Massachusetts at 18
(Sept. 30, 2014).29
EPA continued to take this approach even while
the present case was pending before the Ninth Cir27 https://www3.epa.gov/region1/npdes/merrimackstation/pdfs/
MerrimackStationFactSheet.pdf.
28https://www.regulations.gov/document?D=EPA-HQ-OW-2010-
0257-1277.
29 https://www3.epa.gov/region1/npdes/stormwater/ma/2014Fac
tSheet.pdf.
32
cuit. In its 2017 responses to comments on draft
permits authorizing certain discharges in Massachusetts and New Hampshire, EPA again explained that
“discharges to groundwater are not regulated by the
NPDES permit program,” but instead “are generally
regulated under [the Safe Drinking Water Act]” or
“similar programs, such as State groundwater discharge permit programs.” EPA, Response to Public
Comments,
Permit
Nos.
MAG910000
and
30
NHG910000, at 7 (Mar. 9, 2017).
EPA’s general practice of addressing under the
NPDES program only discharges of pollutants into
navigable waters bolsters amici’s contention that
Congress intended the program to apply only to such
discharges and left groundwater pollution to be addressed under other state and federal programs.
III. THE
NINTH
CIRCUIT’S
DECISION
DISPLACES OTHER PROGRAMS THAT
BETTER
ADDRESS
GROUNDWATER
POLLUTION.
Petitioners and state amici have explained how
applying NPDES permit requirements to sources
that release pollutants to groundwater superimpose
that program on top of other regulatory regimes, including the Safe Drinking Water Act’s program regulating underground injection wells like the one at issue here, see 42 U.S.C. §§ 300h et seq.; the Coastal
Zone Act’s requirement that states develop “Coastal
30 https://www3.epa.gov/region1/npdes/remediation/Responseto
Comments.pdf.
33
Nonpoint Pollution Control Programs” implementing
management measures to restore and protect coastal
waters, see 16 U.S.C. § 1455b; and the CWA’s “Total
Maximum Daily Load” program, which requires
states to address pollution that enters navigable waters via groundwater migration, overland runoff, and
similar diffuse sources. See 33 U.S.C. § 1313(d)(1).
Amici agree that such duplicative regulation is
unnecessary. But an even more serious problem attends the Ninth’s Circuit’s “fairly traceable” standard: it risks entirely displacing programs better suited than the NPDES program to remedy groundwater
contamination, thereby depriving EPA and the
states of valuable tools to comprehensively control
and remediate groundwater pollution.
First, under the Ninth Circuit’s view of the scope
of NPDES permitting, that program would supplant
regulations promulgated under RCRA that are specifically tailored to address groundwater contamination that reaches surface waters. RCRA is a “comprehensive environmental statute that governs the
treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S. 479,
483 (1996). Among other things, RCRA enables EPA
to address pollution that “may present an imminent
and substantial endangerment to health or the environment.” 42 U.S.C. § 6973. And RCRA directs EPA
to issue guidelines for state plans to protect “the
quality of the ground and surface waters from leachate contamination” from waste. Id. § 6942(c)(1),
6943(a).
Unlike the CWA, RCRA defines the “disposal” of
a pollutant as “the discharge, deposit, injection,
34
dumping, spilling, leaking, or placing or any solid
waste or hazardous waste into or on any . . . water so
that the [waste] may enter the environment or be . . .
discharged into any waters, including groundwater.”
42 U.S.C. § 6903(3) (emphasis added). EPA has
therefore adopted and implemented a RCRA program specifically designed to address the
“[m]igration of [c]ontaminated groundwater” to surface waters. See EPA, Memorandum, Interim-Final
Guidance for RCRA Corrective Action Environmental
Indicators, at 1 (Feb. 5, 1999).31 Under this program,
by 2008 the Agency had controlled the migration of
pollutants via groundwater at more than 1,600 facilities and has since continued to make progress toward its goal of implementing remedies at over 3,500
facilities by 2020. See EPA, Baselines for Resource
Conservation and Recovery Act Corrective Action
Sites.32
Critically, RCRA defines the wastes within its
purview to exclude “industrial discharges which are
point sources subject to permits under [the NPDES
program].” 42 U.S.C. § 6903.33 In other words, where
31 https://archive.epa.gov/epawaste/hazard/web/pdf/ei_memo.
pdf.
32 https://www.epa.gov/hw/baselines-resource-conservation-and-
recovery-act-rcra-corrective-action-sites.
33 This is known as the “industrial wastewater exclusion,” and
EPA has long acknowledged that it is designed to avoid duplicative regulation under the CWA and RCRA. See 45 Fed. Reg.
33,084, 33,098 (May 19, 1980). But the problem is not that
sources of wastewater would be subject to “duplicative” regulation if subject to NPDES permits, it is that, due to RCRA’s text,
they would be regulated only under the NPDES program,
(continued...)
35
discharges are subject to the NPDES regime, they
cannot be regulated under RCRA. See Williams Pipe
Line Co. v. Bayer Corp., 964 F. Supp. 1300, 1328-29
(S.D. Iowa 1997) (dismissing RCRA claim after concluding that groundwater discharges were subject to
the NPDES program); Coldani v. Hamm, 2007 WL
2345016, at *10 (E.D. Cal. Aug. 16, 2017) (same).34
The courts have applied this exclusion to any point
source that they conclude should have an NPDES
permit—whether it actually does or not. See, e.g.,
State v. PVS Chemicals, Inc., 50 F. Supp. 2d
171,177-78 (W.D.N.Y. 1998). Thus, if the decision below stands, large categories of sources discharging to
groundwater would be beyond the purview of RCRA.
The expansion of the NPDES regime to include
any releases to groundwater that can be linked to
navigable waters—and the consequent withdrawal of
such pollution from the scope of RCRA—would almost certainly undermine control of groundwater
contamination. For example, EPA has promulgated
regulations under RCRA addressing groundwater
contamination from the disposal of coal ash in surface impoundments, which require extensive monitoring and remediation actions. See 40 C.F.R. Part
257, Appendices III & IV (requiring monitoring for
________________________
(continued...)
which is far less suited to prevent and redress groundwater
contamination.
34 While amici believe that, as here, those courts were incorrect
in concluding that releases to groundwater at issue were covered by the NPDES program, they correctly understood that—if
that is the case—then the releases must be excluded from the
RCRA regime.
36
coal ash constituents); 40 C.F.R. § 257.95(a) (requiring additional monitoring where contaminants are
above background levels); id. § 257.96(a) & 257.98(c)
(requiring corrective action to remediate groundwater until contaminant levels are below certain standards); and 40 C.F.R. § 257.97(b) (requiring facilities
to implement remedies that attain groundwater protection standards; control releases of coal ash constituents at the source; and remove contaminated
material from the environment to the extent possible). EPA has also promulgated regulations requiring monitoring and remediation of releases to
groundwater from municipal solid waste landfills,
see 40 C.F.R. §§ 258.50-258.58, and hazardous waste
facilities. See id. §§ 264.90-264.101. If the Ninth Circuit is correct about the scope of the NPDES program, releases to groundwater from these facilities
that reach navigable waters are not, nor should they
ever have been, subject to RCRA’s comprehensive
regulations.
Moreover, the NPDES requirements that, under
the Ninth Circuit’s view, would replace regulation of
releases to groundwater under RCRA are particularly ill-suited to address diffuse, migrating contamination. NPDES requirements are “effluent” limitations,
aimed at “end-of-pipe” discharges into surface waters. See 40 C.F.R. § 122.45 (requiring that effluent
limitations and standards be established “for each
outfall or discharge point of the permitted facility”).
NPDES monitoring requirements therefore generally
apply at the end of the contamination pathway. They
look to the quantities, rates, and concentrations of
37
pollutants released to protect the water quality of
the receiving surface water.35 But it may be difficult,
if not impossible, to determine what those are in the
context of discharges via groundwater or runoff. In
the present case, for example, contaminated
groundwater entered the ocean along as much as two
miles of coastline. In such situations, there are no
identifiable outfalls or discharge points that can be
used for sampling and monitoring, or to calculate effluent limitations protective of the receiving surface
water.
It would also be difficult to determine appropriate effluent limits for any individual source given
that groundwater picks up contamination from multiple sources as it travels. Furthermore, NPDES
permit limits may be less stringent than the RCRA
regulations that under the Ninth Circuit’s decision
they would displace, depending on the applicable
standards for the receiving water that are determined by the water’s designated use(s).
Such practical difficulties are exacerbated
where, as in many instances, discharges are deliberate, occurring as part of a system designed to allow
waste to infiltrate soil or groundwater as a method of
treating that waste through filtration. EPA’s NPDES
permitting guidance directs permit writers to require monitoring “after all treatment processes.”
EPA, NPDES Permit Writer’s Manual § 8.1.2.3
(Sept. 2010).36 That approach is impracticable where
35 See 33 U.S.C. §§ 1313, 1314; 40 C.F.R. § 122.44(a), (d).
36 https://www.epa.gov/npdes/npdes-permit-writers-manual.
38
the discharge—and its subsequent migration
through groundwater—is the treatment process. Nor
can permit writers solve this problem by moving the
monitoring location to the places where pollutants
enters a navigable water. Not only might that occur
at myriad points along miles of shoreline remote
from a permittee’s operation, it also might require
permittees to monitor and sample on third-parties’
land that they have no right to access or use.
Second, the Ninth Circuit’s expansive interpretation of the NPDES program would displace states’
efforts to address surface water pollution resulting
from groundwater contamination under CWA Section 319. As discussed above, Congress’s vision for
the CWA included strong nonpoint source programs
that enable states to holistically address surface water pollution from diverse sources. Under the Section
319 program, states are given the authority and responsibility to identify waters that, due to nonpoint
source pollution, will not attain water quality standards; identify the nonpoint sources that add pollution to those waters; and implement best management practices and other measures to address that
pollution. See 33 U.S.C. § 1329(a)(1). Federal funding is available to assist states in addressing such
pollution under CWA section 319, and many states
have successfully leveraged such funding to improve
water quality, often by upgrading septic systems.
See, e.g., EPA, Nonpoint Source Program Success
Story, Tennessee, Septic Tank Effluent Pumping Project Improves King Branch, EPA-841-F-16-001R
39
(Aug. 2016);37 EPA, Nonpoint Source Program Success Story, Kentucky, Upgrading Septic Systems and
Removing Straight Pipes as Part of Watershed Plan
Reduces Bacteria in Eagle Creek, EPA-841-F-15007UU (Oct. 2015).38
Several states have used Section 319 funding to
abate groundwater contamination from identifiable
sources. For example, Vermont used the Section 319
program to address stream pollution resulting from
the migration of contaminated groundwater from an
underground storage tank. EPA, Section 319 Nonpoint Source Program Success Story: Vermont, 841F-06-0031 (Aug. 2006).39 Alaska similarly leveraged
Section 319 funding to address groundwater contamination from leaking storage tanks that was creating
visible sheens on nearby surface waters. EPA, Section 319 Nonpoint Source Program Success Story:
Alaska, 841-F-09-001G (June 2009).40
Because CWA Section 319 addresses only nonpoint source pollution, states would lose their ability
to address such pollution under Section 319—as well
as the attendant funding—if, by virtue of the Ninth
Circuit’s reasoning, that pollution was deemed point
37 https://www.epa.gov/sites/production/files/2016-
09/documents/tn_king_branch_508.pdf.
38 https://www.epa.gov/sites/production/
files/2015-12/documents/ky_eagle.pdf.
39 https://www.epa.gov/sites/production/files/2015-
12/documents/vt_whet.pdf.
40 https://www.epa.gov/sites/production/files/2015-
11/documents/ak_naknek.pdf.
40
source discharges subject to the NPDES program.
An affirmation of the decision below would thus effectively delete entire longstanding categories of water pollution from the scope of states’ Section 319
programs, along with the concomitant Section 319
tools available to states to address the impacts of
that pollution on surface waters.
Simply put, applying NPDES requirements designed for discrete and measurable discharges into
navigable waters to diffuse groundwater movement
would undermine environmental protection. It would
replace RCRA requirements tailored to address
those types of discharges, as well as CWA nonpoint
source management programs that allow states
comprehensively to address surface water pollution
from various sources, with an ill-fitting effluentregulation regime. The result would be poorer control of groundwater contamination, and thus more
pollution of navigable waters.
41
CONCLUSION
For the foregoing reasons, this Court should reverse the judgment entered below.
Respectfully submitted,
THOMAS A. LORENZEN
Counsel of Record
DAVID Y. CHUNG
AMANDA SHAFER BERMAN
CROWELL & MORING LLP
1001 Pennsylvania Ave., NW
Washington, DC 20004
(202) 624-2500
tlorenzen@crowell.com
Counsel for Amici Curiae
EMILY FISHER
AMANDA ASPATORE
EDISON ELECTRIC INSTITUTE
701 Pennsylvania Ave., NW
Washington, DC 20004-2696
Counsel for Edison Electric
Institute
RICHARD MOSKOWITZ
AMERICAN FUEL &
PETROCHEMICAL
MANUFACTURERS
1800 M Street, NW
Suite 900 North
Washington, DC 20036
Counsel for American
Fuel & Petrochemical
Manufacturers
42
STACY R. LINDEN
AMERICAN PETROLEUM
INSTITUTE
200 Massachusetts Ave., NW
Washington, DC 20001
Counsel for American
Petroleum Institute
KATHY KIRMAYER
ALICE KOETHE
ASSOCIATION OF AMERICAN
RAILROADS
425 3rd Street, SW
Washington, DC 20024
Counsel for Association of
American Railroads
PETER C. TOLSDORF
NATIONAL ASSOCIATION OF
MANUFACTURERS’ CENTER
FOR LEGAL ACTION
733 10 St., NW, Ste 700
Washington, D.C. 20001
KATIE SWEENEY
NATIONAL MINING
ASSOCIATION
101 Constitution Ave., NW
Suite 500 E
Washington, DC 20001
Counsel for National
Association of
Manufacturers’ Center for
Legal Action
Counsel for National Mining
Association
RAE CRONMILLER
NATIONAL RURAL ELECTRIC
COOPERATIVE ASSOCIATION
4301 Wilson Blvd.
Arlington, VA 22203
CHARLES FRANKLIN
PORTLAND CEMENT
ASSOCIATION
1150 Connecticut Ave., NW
Washington, DC 20036
Counsel for National
Rural Electric Cooperative
Association
Counsel for Portland Cement
Association
May 16, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.