Amicus Curiae Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.
Supreme Court briefMay 16, 2019
Ask Donna
What actually matters in this document.
Text
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 UNITED STATES SENATORS AS
AMICI CURIAE IN SUPPORT OF PETITIONER
_________
AARON CUTLER
SEAN MAROTTA
Counsel of Record
HEATHER A. BRIGGS
PAIGE MUHLESTEIN*
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-4881
sean.marotta@hoganlovells.com
Counsel for Amici Curiae
* Admitted only in California.
Practice supervised by firm
partners admitted in the District of Columbia
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
STATEMENT OF INTEREST .................................... 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ............................................................... 5
I.
II.
THE CLEAN WATER ACT’S TEXT AND
STRUCTURE DEMONSTRATE THAT THE
CLEAN WATER ACT DOES NOT REGULATE
DISCHARGES INTO GROUNDWATER, EVEN
IF THERE IS A HYDROLOGIC CONNECTION
BETWEEN THE GROUNDWATER AND THE
NAVIGABLE WATERS .......................................... 5
A.
The Clean Water Act Requires
Federal-Discharge Permits Only For
Discharges From Point Sources Into
Navigable Waters, And Groundwater
Is Neither A Point Source Nor Part
Of the Navigable Waters .......................... 7
B.
The Clean Water Act’s Structure
Evinces Congress’s Intent To Leave
Regulatory Control of Groundwater
Pollution To The States .......................... 10
THE CLEAN WATER ACT’S LEGISLATIVE
HISTORY DEMONSTRATES THAT
CONGRESS DID NOT INTEND THE ACT
TO REGULATE DISCHARGES INTO
GROUNDWATER ................................................ 16
III. OTHER STATE AND FEDERAL
ENACTMENTS PROTECT GROUNDWATER
WITHOUT STRETCHING THE CLEAN
WATER ACT BEYOND ITS TEXT ......................... 19
(i)
ii
TABLE OF CONTENTS—Continued
Page
IV. EXPANDING FEDERAL JURISDICTION OVER
GROUNDWATER WOULD RESULT IN
UNINTENDED HARMFUL CONSEQUENCES ........... 22
CONCLUSION .......................................................... 27
iii
TABLE OF AUTHORITIES
Page
CASES:
26 Crown Assocs., LLC v. Greater New Haven
Reg’l Water Pollution Control Auth.,
No. 3:15-cv-1439 (JAM), 2017 WL 2960506
(D. Conn. July 11, 2017) ........................................ 9
Arkansas v. Oklahoma,
503 U.S. 91 (1992) ................................................ 22
Central Bank of Denver, N.A. v. First
Interstate Bank of Denver, N.A.,
511 U.S. 164 (1994) .............................................. 21
Dole v. United Steelworkers of Am.,
494 U.S. 26 (1990) ................................................ 10
Exxon Corp. v. Train,
554 F.2d 1310 (5th Cir. 1977) .................. 12, 17, 19
Gulf Oil Corp. v. Copp Paving Co.,
419 U.S. 186 (1974) .............................................. 18
Gustafson v. Alloyd Co.,
513 U.S. 561 (1995) .............................................. 16
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) .............................................. 16
Kentucky Waterways Alliance v. Kentucky
Utils. Co.,
905 F.3d 925 (6th Cir. 2018) ................................ 10
Marx v. Gen. Revenue Corp.,
568 U.S. 371 (2013) .............................................. 12
Massachusetts v. Morash,
490 U.S. 107 (1989) .............................................. 10
iv
TABLE OF AUTHORITIES—Continued
Page
Pacific Coast Fed’n of Fishermen’s Ass’ns v.
Glaser,
No. CIV S-2:11-2980-KJM-CKD, 2013 WL
5230266 (E.D. Cal. Sept. 16, 2013)........................ 9
Reiter v. Sonotone Corp.,
442 U.S. 330 (1979) ................................................ 8
Russello v. United States,
464 U.S. 16 (1983) .................................................. 8
Sebelius v. Cloer,
569 U.S. 369 (2013) ................................................ 7
U.S. Army Corps of Eng’rs v. Hawkes Co.,
136 S. Ct. 1807 (2016) .......................................... 23
U.S. Dep’t of Energy v. Ohio,
503 U.S. 607 (1992) .............................................. 22
Umatilla Waterquality Protective Ass’n v.
Smith Frozen Foods,
962 F. Supp. 1312 (D. Or. 1997) .................... 10, 11
STATUTES:
Clean Water Act ................................................ passim
33 U.S.C. § 1251(b) .............................................. 12
33 U.S.C. § 1252 ................................................... 15
33 U.S.C. § 1252(a) .................................... 8, 15, 16
33 U.S.C. § 1254 ................................................... 15
33 U.S.C. § 1254(a) .............................................. 15
33 U.S.C. § 1254(a)(5) ................................ 8, 10, 15
33 U.S.C. § 1256 ................................................... 14
33 U.S.C. § 1256(e)(1) ...................................... 8, 14
33 U.S.C. § 1282 ................................................... 14
v
TABLE OF AUTHORITIES—Continued
Page
33 U.S.C. § 1282(a)(1) .......................................... 14
33 U.S.C. § 1282(b) .............................................. 14
33 U.S.C. § 1282(b)(1) .......................................... 14
33 U.S.C. § 1288(b)(2) .......................................... 16
33 U.S.C. § 1288(b)(2)(I) ...................................... 13
33 U.S.C. § 1288(b)(2)(F) ............................... 12, 13
33 U.S.C. § 1288(b)(2)(G) ......................... 12, 13, 16
33 U.S.C. § 1288(b)(2)(K) ..................................... 13
33 U.S.C. § 1311(a) .......................................... 7, 26
33 U.S.C. § 1314 ................................................... 15
33 U.S.C. § 1314(a)(1) .......................................... 15
33 U.S.C. § 1314(a)(2) ................................ 8, 10, 16
33 U.S.C. § 1314(f)(1) ........................................... 16
33 U.S.C. § 1314(f)(2) ........................................... 16
33 U.S.C. § 1314(f)(2)(B) ...................................... 16
33 U.S.C. § 1314(f)(2)(E) ...................................... 16
33 U.S.C. § 1314(f)(2)(F) .................................. 8, 16
33 U.S.C. § 1314(g)............................................... 12
33 U.S.C. § 1314(g)(1) .......................................... 12
33 U.S.C. § 1329 ................................................... 14
33 U.S.C. § 1329(i)(1) ........................................... 14
33 U.S.C. § 1329(h)(5)(D) ..................................... 15
33 U.S.C. § 1342(a) .............................................. 11
33 U.S.C. § 1342(a)(1) ............................................ 7
33 U.S.C. § 1362(7) ................................................ 7
vi
TABLE OF AUTHORITIES—Continued
Page
33 U.S.C. § 1362(11) ............................................ 11
33 U.S.C. § 1362(12) ............................................ 11
33 U.S.C. § 1362(12)(A).......................................... 7
33 U.S.C. § 1362(14) .......................................... 7, 9
33 U.S.C. § 1370 ................................................... 19
Safe Drinking Water Act,
42 U.S.C. § 300f et seq. (1974) ......................... 4, 22
42 U.S.C. § 300h ................................................... 22
42 U.S.C. § 300h-1 ............................................... 22
Resource Conservation and Recovery Act,
42 U.S.C. § 6901 et seq. (1976) ................ 4, 5, 6, 21
42 U.S.C. § 6903(3) .............................................. 21
42 U.S.C. § 6973(a) .............................................. 21
Comprehensive Environmental Response,
Compensation, and Liability Act,
42 U.S.C. § 9601 et seq. (1980) ........................ 4, 21
42 U.S.C. § 9601(8) .............................................. 21
42 U.S.C. § 9601(14) ............................................ 21
42 U.S.C. § 9604(a)(1)(A) ..................................... 21
REGULATION:
Interpretive Statement on Application
of the Clean Water Act, 84 Fed. Reg.
16,810 (Apr. 23, 2019) .......................... 6, 11, 12, 20
LEGISLATIVE MATERIAL:
H.R. Rep. No. 116-9 (2019) (Conf. Rep.) ..................... 6
S. Rep. No. 92-414 (1971) .................................... 17, 18
vii
TABLE OF AUTHORITIES—Continued
Page
118 Cong. Rec. 10,666 (1972) (statement of
Rep. Aspin) ........................................................... 18
118 Cong. Rec. H2643 (daily ed. Mar. 28,
1972) (statement of Rep. Smith, Chairman) ...................................................................... 18
164 Cong. Rec. H2045 (daily ed. Mar. 22,
2018) (explanatory statement submitted
by Rep. Frelinghuysen) .......................................... 6
The Appropriate Role of States and the
Federal Government in Protecting
Groundwater: Hearing Before the S.
Comm. on Env’t & Pub. Works, 115th
Cong. __ (Apr. 18, 2018) ............................... passim
Comm. on Public Works, 93d Cong., A
Legislative History of the Water Pollution
Control Act Amendments of 1972 (Comm.
Print 1973) ........................................................... 17
ADMINISTRATIVE MATERIAL:
Nat’l Ass’n of Clean Water Agencies et al.,
Comment Letter on Clean Water Act
Coverage of “Discharges of Pollutants” via
a Direct Hydrologic Connection to Surface
Water (May 21, 2018), available at
https://tinyurl.com/y5gfdvan ............. 19, 20, 24, 26
States of West Virginia et al., Comment
Letter on Clean Water Act Coverage of
“Discharges of Pollutants” Via a Direct
Hydrologic Connection to Surface Water
(May 21, 2018), available at
https://tinyurl.com/y6q8ay4q ............................... 20
viii
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES:
Basic Information about Nonpoint Source
(NPS) Pollution, EPA,
https://www.epa.gov/nps/basicinformation-about-nonpoint-source-npspollution (last updated Aug. 10, 2018) .................. 9
Damien Schiff, Keeping the Clean Water Act
Cooperatively Federal—Or, Why the Clean
Water Act Does Not Directly Regulate
Groundwater Pollution, 42 Wm. & Mary
Envtl. L. & Pol’y Rev. 447 (2018) .......................... 8
IN THE
Supreme Court of the United States
_________
No. 18-260
_________
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 UNITED STATES SENATORS AS
AMICI CURIAE IN SUPPORT OF PETITIONER
_________
STATEMENT OF INTEREST
United States Senators John Barrasso, M.D., Marsha Blackburn, Roy Blunt, John Boozman, Mike
Braun, Shelley Moore Capito, Kevin Cramer, Mike
Crapo, Joni K. Ernst, Deb Fischer, John Hoeven,
Cindy Hyde-Smith, James M. Inhofe, James Lankford, James E. Risch, and Roger F. Wicker respectfully submit this brief as amici curiae in support of
Petitioner.1
1
No party or counsel for a party authored or paid for this brief
in whole or in part, or made a monetary contribution to fund
the brief’s preparation or submission. No one other than amici
or their members or counsel made a monetary contribution to
2
John Barrasso, M.D., is a United States Senator
from Wyoming and Chairman of the United States
Senate Committee on Environment and Public
Works.
Marsha Blackburn is a United States Senator from
Tennessee.
Roy Blunt is a United States Senator from Missouri.
John Boozman is a United States Senator from
Arkansas and a member of the United States Senate
Committee on Environment and Public Works.
Mike Braun is a United States Senator from Indiana and a member of the United States Senate
Committee on Environment and Public Works.
Shelley Moore Capito is a United States Senator
from West Virginia and a member of the United
States Senate Committee on Environment and
Public Works.
Kevin Cramer is a United States Senator from
North Dakota and a member of the United States
Senate Committee on Environment and Public
Works.
Mike Crapo is a United States Senator from Idaho.
Joni K. Ernst is a United States Senator from Iowa
and a member of the United States Senate Committee on Environment and Public Works.
Deb Fischer is a United States Senator from Nebraska.
the brief, and counsel prepared this brief on a pro bono basis.
All parties have consented to the filing of this brief.
3
John Hoeven is a United States Senator from
North Dakota.
Cindy Hyde-Smith is a United States Senator from
Mississippi.
James M. Inhofe is a United States Senator from
Oklahoma and a member of the United States Senate Committee on Environment and Public Works.
James Lankford is a United States Senator from
Oklahoma.
James E. Risch is a United States Senator from
Idaho.
Roger F. Wicker is a United States Senator from
Mississippi and a member of the United States
Senate Committee on Environment and Public
Works.
SUMMARY OF ARGUMENT
Congress decided when it enacted the Clean Water
Act that the States, not the federal government, were
in the best position to regulate groundwater. The
Ninth Circuit’s extension of federal-discharge permitting over groundwater violates the text of the
Clean Water Act, ignores the clear legislative history
of the statute, is unnecessary, violates the spirit of
cooperative federalism with which the statute was
drafted, and is bad public policy.
Under the Clean Water Act, the federal-dischargepermit program applies only to discharges from point
sources into the waters of the United States, and
groundwater is neither a point source nor a water of
the United States. A close reading of the text shows
that even where there is a hydrologic connection
between groundwater and surface water, the Act
does not extend federal permitting power over
4
groundwater. Instead, it directs the Environmental
Protection Agency (EPA) to provide support to the
States’ regulatory efforts. The statutory history
shows that both the House and the Senate were
aware of the hydrologic connection between ground
and surface waters and still rejected the extension of
federal-discharge permitting to groundwater.
There is already sufficient state and federal regulation to protect ground and surface waters without
contravening the will of Congress. At the federal
level, groundwater quality is already regulated by
several federal laws, including the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and
Recovery Act (RCRA), and the Safe Drinking Water
Act (SDWA). In addition, all fifty States regulate
groundwater through state or cooperative-federalism
programs. States should retain the flexibility to
consider local laws and environmental conditions to
determine the best way to regulate groundwater.
Extending federal-discharge permitting to cover
groundwater would violate the spirit of cooperative
federalism with which the Clean Water Act was
drafted and would result in serious unintended
consequences. The Ninth Circuit’s interpretation of
the Clean Water Act could extend onerous federal
permitting requirements to even every-day activities,
cause federal-discharge permitting to increase literally hundreds-fold in parts of the country, and impede needed public-infrastructure projects.
This Court should reverse.
5
ARGUMENT
I.
THE CLEAN WATER ACT’S TEXT AND
STRUCTURE DEMONSTRATE THAT THE CLEAN
WATER
ACT
DOES
NOT
REGULATE
DISCHARGES INTO GROUNDWATER, EVEN IF
THERE IS A HYDROLOGIC CONNECTION
BETWEEN THE GROUNDWATER AND THE
NAVIGABLE WATERS.
Shortly after the Ninth Circuit’s decision underlying this case, Congress confirmed that the court’s
extension of federal-discharge permitting over
groundwater contravened Congress’s will. An explanatory statement attached to the Fiscal Year 2018
omnibus appropriations bill clarified the appropriate
scope of the Clean Water Act:
Regulation of Groundwater. – Since enactment
in 1972, the Clean Water Act (CWA) has regulated impacts to navigable waters, while regulation of groundwater has remained outside of
the Act’s jurisdiction. Instead, legislative history surrounding the CWA indicates that Congress intended for groundwater pollution to be
regulated through CWA’s nonpoint source
program and other Federal and State laws.
For example, releases into groundwater from
solid waste units are regulated at a Federal
level by the Resource Conservation and Recovery Act (RCRA). Recently, some courts have
imposed a broad view of CWA liability based
on a theory of hydrological connection between
groundwater and surface water. Other courts
have taken a more narrow view and have focused on statutory distinctions between surface water and groundwater. * * * [T]he Com-
6
mittees encourage the Agency to consider
whether it is appropriate to promulgate a rule
to clarify that groundwater releases from solid
waste units are regulated under RCRA and
are not considered point sources, and, that releases of pollutants through groundwater are
not subject to regulation as point sources under the Clean Water Act.
164 Cong. Rec. H2045, H2623-24 (daily ed. Mar. 22,
2018) (explanatory statement submitted by Rep.
Frelinghuysen); id. at H2045 (“Section 4 of the Act
states that this explanatory statement shall have the
same effect with respect to the allocation of funds
and implementation of this legislation as if it were a
joint explanatory statement of a committee of conference.”). In 2019, in the conference report accompanying Fiscal Year 2019 appropriations legislation,
Congress directed EPA to continue following the
guidance contained in the Fiscal Year 2018 omnibus
appropriations bill. See H.R. Rep. No. 116-9, at 741
(2019) (Conf. Rep.).
EPA also recently released an interpretive statement concluding that the Clean Water Act “is best
read as excluding all releases of pollutants from a
point source to groundwater from [federal-discharge]
program coverage and liability * * * regardless of a
hydrologic connection between the groundwater and
a jurisdictional surface water.” Interpretive Statement on Application of the Clean Water Act, 84 Fed.
Reg. 16,810, 16,811 (Apr. 23, 2019) (“EPA Interpretive Statement”). The Act’s text and structure confirms Congress’s and EPA’s united position that the
Clean Water Act excludes groundwater from federaldischarge permitting.
7
A.
The Clean Water Act Requires FederalDischarge Permits Only For Discharges
From Point Sources Into Navigable Waters, And Groundwater Is Neither A Point
Source Nor Part Of the Navigable Waters.
1. Under the Clean Water Act, a federaldischarge permit is required for only the “discharge
of any pollutant.” 33 U.S.C. §§ 1311(a); 1342(a)(1).
The Act, in turn, defines a “discharge of a pollutant”
as “any addition of any pollutant to navigable waters
from any point source.” Id. § 1362(12)(A). Putting
the two statutory sections together, for a discharge to
be regulated by the Clean Water Act—and thus
require a federal-discharge permit—(1) it must
originate from a point source and (2) it must flow
from the point source to navigable waters. Sebelius
v. Cloer, 569 U.S. 369, 376 (2013) (citation omitted)
(“As in any statutory construction case, ‘we start, of
course, with the statutory text.’ ”).
The Act further defines the relevant terms. A
“point source” is “any discernible, confined and
discrete conveyance * * * from which pollutants are
or may be discharged.” 33 U.S.C. § 1362(14). And
navigable waters are “the waters of the United
States, including the territorial seas.” Id. § 1362(7).
By substitution, to be regulated under the Clean
Water Act, a discharge must originate from a discernable, confined, and discrete conveyance, and
must flow to the waters of the United States, including its territorial seas.
2. The text and structure of the Clean Water Act
confirm that groundwater is not part of the navigable
waters of the United States. As a result, discharge of
pollutants into groundwater cannot trigger the Clean
8
Water Act’s federal-discharge permitting program.
a. The Clean Water Act treats “navigable waters”
and “ground waters” as distinct. Section 102 calls for
comprehensive programs to prevent pollution of “the
navigable waters and ground waters.” Id. § 1252(a).
Section 104 contemplates systems for monitoring the
quality of “the navigable waters and ground waters.”
Id. § 1254(a)(5). Section 106 makes grants for statepollution-control programs contingent on evaluating
“the quality of navigable waters and to the extent
practicable, ground waters.” Id. § 1256(e)(1). And
Section 304 requires federal guidelines for preventing pollution in “all navigable waters [and] ground
waters,” as well as federal pollution-control guidelines that consider “changes in the movement, flow,
or circulation of any navigable waters or ground
waters.” Id. §§ 1314(a)(2), 1314(f)(2)(F); see also
Damien Schiff, Keeping the Clean Water Act Cooperatively Federal—Or, Why the Clean Water Act Does
Not Directly Regulate Groundwater Pollution, 42
Wm. & Mary Envtl. L. & Pol’y Rev. 447, 461 (2018).
The Act’s separation of “navigable waters” and
“ground waters” would be unnecessary if ground
waters were navigable waters. And this Court “is
obliged to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330,
339 (1979). The Court therefore “refrain[s] from
concluding here that the different language in the”
Clean Water Act’s various sections “has the same
meaning in each.” Russello v. United States, 464
U.S. 16, 23 (1983). It should do the same here.
b. Respondents nonetheless argue that even though
groundwater may not be part of the waters of the
United States, discharges from point sources through
9
groundwater to the navigable waters require federaldischarge permits because they are the functional
equivalent of a discharge from a point source directly
into navigable waters. See Br. in Opp’n 22. But that
argument fares no better. The discharge into the
navigable waters is from groundwater. And groundwater is not a point source regulated by the Clean
Water Act.2
A point source, again, is “any discernible, confined
and discrete conveyance * * * from which pollutants
are or may be discharged,” such as a pipe, well, or
tunnel. 33 U.S.C. § 1362(14). Groundwater, by
contrast, “is widely diffused by saturation within the
crevices of underground rocks and soil,” 26 Crown
Assocs., LLC v. Greater New Haven Reg’l Water
Pollution Control Auth., No. 3:15-cv-1439 (JAM),
2017 WL 2960506, at *8 (D. Conn. July 11, 2017). It
is thus neither confined, nor discrete. See, e.g.,
2
While the focus of this brief is groundwater, consistent with
the Court’s question presented, other nonpoint sources should
not be subject to federal-discharge permitting either. See
generally, Basic Information about Nonpoint Source (NPS)
Pollution, EPA, https://www.epa.gov/nps/basic-informationabout-nonpoint-source-nps-pollution (last updated Aug. 10,
2018) (“[n]onpoint source pollution can include” urban runoff,
sediment from eroding streambanks, and atmospheric deposition); 33 U.S.C. § 1362(14) (exempting “agricultural stormwater
discharges” and “return flows from irrigated agriculture” from
the definition of a point source); Pacific Coast Fed’n of Fishermen’s Ass’ns v. Glaser, No. CIV S-2:11-2980-KJM-CKD, 2013
WL 5230266, at *13 (E.D. Cal. Sept. 16, 2013) (subsurface drain
tiles that transport discharges solely from irrigated agriculture
fall within the return-flows-from-irrigated-agriculture exemption); see also supra pp. 6-7 (nonpoint sources are not subject to
federal-discharge permitting).
10
Kentucky Waterways Alliance v. Kentucky Utils. Co.,
905 F.3d 925, 933 (6th Cir. 2018) (holding that
groundwater is not a point source because it is
neither “discernible,” “confined” nor “discrete.”). And
it therefore cannot qualify as a “point source” that
would fall under the Clean Water Act’s coverage.
B.
The Clean Water Act’s Structure Evinces
Congress’s Intent To Leave Regulatory
Control of Groundwater Pollution To The
States.
The Clean Water Act, read as a whole, further confirms that Congress intended for the States, not the
federal government, to regulate discharges from
point sources into groundwater. See Dole v. United
Steelworkers of Am., 494 U.S. 26, 35 (1990) (“[W]e are
not guided by a single sentence or member of a
sentence, but look to the provisions of the whole law,
and to its object and policy.” (quoting Massachusetts
v. Morash, 490 U.S. 107, 115 (1989))).
1. “[T]hroughout the [Clean Water Act], Congress
appeared to have four categories of waters in mind—
‘navigable waters,’ the contiguous zone, the ocean,
and ‘ground waters.’” Umatilla Waterquality Protective Ass’n v. Smith Frozen Foods, 962 F. Supp. 1312,
1318 (D. Or. 1997); see also 33 U.S.C. §§ 1254(a)(5)
(directing EPA to work with the States to monitor
the quality of navigable waters, ground waters, the
contiguous zone, and the ocean), 1314(a)(2) (directing
EPA to publish information on the factors necessary
to restore and maintain all navigable waters, ground
waters, waters of the contiguous zone, and the
ocean). In provisions related to the federal-discharge
permitting program, there is no mention of “ground
waters” while the other three types of waters are
11
directly referenced. See EPA Interpretive Statement,
84 Fed. Reg. at 16,814-16,815.
First, in addition to regulating the discharge of
pollutants from a point source into the navigable
waters through federal-discharge permits, the Act
prohibits “any addition of any pollutant to the waters
of the contiguous zone or the ocean from any point
source other than a vessel or other floating craft.” 33
U.S.C. § 1362(12). As one court has observed, “[o]nly
the first three” of the Clean Water Act’s four categories of waters “are included within the definition of
‘discharge of a pollutant.’” Umatilla, 962 F. Supp. at
1318. That “indicat[es] that Congress did not consider discharges to groundwater to be discharges that
would trigger the [federal-discharge] permit requirement.” Id.
Second, the Clean Water Act’s definition of effluent
limitations does not include groundwater. Effluent
limitations are “any restriction established by a State
or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and
other constituents which are discharged from point
sources into navigable waters, the waters of the
contiguous zone, or the ocean.” 33 U.S.C. § 1362(11)
(emphasis added). And permittees are generally
required to comply with effluent limitations in order
to qualify for federal-discharge permits. See id.
§ 1342(a). If Congress had intended to require
federal-discharge permits for discharges into or
through groundwater, one would expect groundwater
to be included alongside “navigable waters, the water
of the contiguous zone, or the ocean” in defining
effluent limitation. And “when Congress includes
one possibility in a statute, it excludes [others] by
12
implication.” Marx v. General Revenue Corp., 568
U.S. 371, 392 (2013).
Finally, Section 304(g) requires EPA to publish
guidelines to assist States in carrying out their
federal-discharge-permit programs.
33 U.S.C.
§ 1314(g). These guidelines are designed to “control
and prevent * * * discharge into the navigable waters, the contiguous zone, or the ocean”—every type of
water except groundwater. Id. at § 1314(g)(1) (emphases added).
2. Congress clearly intended for States to continue
to be primarily responsible for the protection of
groundwater. The Act makes it the “policy of Congress to recognize, preserve, and protect the primary
responsibilities and rights of the States to prevent,
reduce, and eliminate pollution.” Id. § 1251(b). In
three different groups of Clean Water Act provisions
apart from the discharge permitting program, Congress left it to the States to protect groundwater. See
Exxon Corp. v. Train, 554 F.2d 1310, 1322 (5th Cir.
1977) (finding, “upon close examination * * * of the
Act,” a “clear pattern of congressional intent”—
“federal information gathering and encouragement of
state efforts to control groundwater pollution but
[without] direct federal control over groundwater
pollution”); EPA Interpretive Statement, 84 Fed.
Reg. at 16,816-16,817.
First, Section 208 requires States to regulate discharges into groundwater as part of their areawide
waste-treatment-management plans. For example,
this section requires States to “identify * * * underground mine runoff” and to “set forth procedures and
methods (including land use requirements) to control
[it] to the extent feasible.” 33 U.S.C. § 1288(b)(2)(F)-
13
(G). Underground mine runoff is a discharge into
groundwater, and Congress used regulatory language, such as “control,” “procedures,” and “requirements” to show that States are in charge of regulating groundwater.
Under Section 208, States must also “identify, if
appropriate, salt water intrusion into rivers, lakes,
and estuaries * * * from any cause, including * * *
ground water extraction, set[ting] forth procedures
and methods to control such intrusion to the extent
feasible where such procedures and methods are
otherwise part of the waste treatment management
plan.” Id. § 1288(b)(2)(I). In these provisions, Congress once again used regulatory language to make
clear that States have the authority to regulate
groundwater. These provisions also highlight the
effect of groundwater extraction on rivers, lakes, and
estuaries, proving that Congress was aware of the
connection between groundwater and surface water
but chose to address it by leaving regulatory power
with the States.
Congress in Section 208 also required state areawide-waste-treatment-management programs “to
control the disposal of pollutants on land or in subsurface excavations * * * to protect ground and
surface water quality.” Id. § 1288(b)(2)(K). Like
Section 208’s other subsections, subsection (b)(2)(K)
uses the regulatory word “control” to have States
take the lead in combatting groundwater pollution.
Once again, Congress acknowledged the connection
between ground and surface waters and left States in
control of groundwater regulation.
Second, Sections 106, 202, and 319 establish grant
programs specifically designed to encourage States to
14
adopt additional measures to protect groundwater.
See id. §§ 1256, 1282, 1329. Section 106 forbids EPA
from awarding pollution-control-program grants to
any State that does not include “procedures necessary to monitor * * * the quality of navigable waters
and to the extent practicable, ground waters” as part
of its program. Id. § 1256(e)(1).
Section 202, meanwhile, conditions increased grant
amounts for treatment works on a State’s certification that “the quantity of available ground water will
be insufficient, inadequate, or unsuitable for public
use, including the ecological preservation and recreational use of surface water bodies, unless effluents
from publicly owned treatment works after adequate
treatment are returned to the ground water consistent with acceptable technological standards.” Id.
§ 1282(a)(1), (b), (b)(1). This provision encourages
States to take the lead in protecting groundwater
supplies. And it leaves it up to States to determine
what counts as “adequate treatment” of pollutants. It
also acknowledges that release of effluents into
groundwater can undermine “the ecological preservation and recreational use of surface water bodies,”
showing, once again, that Congress is aware of the
connection between ground and surface waters and
chose to leave groundwater regulation to the States.
Likewise, Section 319 addresses state nonpoint
source management programs. Id. § 1329. Among
its provisions, it establishes “[g]rants for protecting
groundwater quality” that allow EPA to give grants
to States “for the purpose of assisting * * * State[s] in
carrying out groundwater quality protection activities * * * to protect the quality of groundwater and to
prevent contamination of groundwater from nonpoint
sources of pollution.” Id. § 1329(i)(1).
15
Section 319 further authorizes the Administrator to
give priority in grant awards to States that “carry
out ground water quality protection activities * * *
[as] part of a comprehensive nonpoint source pollution control program, including research, planning,
ground water assessments, demonstration programs,
enforcement, technical assistance, education, and
training to protect ground water quality from nonpoint sources of pollution.
Id. § 1329(h)(5)(D).
Section 319 thus shows that Congress contemplated
supporting the groundwater-protection efforts of
States through grantmaking, rather than taking on
the issue itself.
Third, instead of directing EPA to regulate
groundwater, Sections 102, 104, and 304 require
EPA to consult and cooperate with States to develop
comprehensive programs and to provide states with
guidelines and information to aid state regulation of
groundwater. Id. §§ 1252, 1254, 1314. Section 102
requires EPA to “develop comprehensive programs
for preventing * * * the pollution of the navigable
waters and ground waters,” working together with
“State water pollution control agencies.”
Id.
§ 1252(a). Section 104 similarly requires EPA to
“establish national programs” to protect water quality, and develop a “water quality surveillance system”
to monitor the quality of ground and other waters “in
cooperation with the States.” Id. § 1254(a), (a)(5).
And Section 304 provides that EPA, “after consultation with * * * State agencies,” must “develop and
publish * * * criteria for water quality accurately
reflecting the latest scientific knowledge” on the
health effects of pollutants “in any body of water,
including ground water.” Id. § 1314(a)(1). All three
reaffirm Congress’s intent that EPA provide guid-
16
ance and support to state efforts to regulate groundwater pollution.
In these sections, the advisory language describing
EPA’s involvement contrasts with the regulatory
language used in Section 208 describing States’
responsibility to regulate groundwater. While the
States are commanded to develop “procedures and
methods,” “control” underground mine runoff, and
establish land-use “requirements,” id. §§ 1288(b)(2),
(b)(2)(G), EPA is instructed to help develop programs, id. § 1252(a); publish “information,” id.
§ 1314(a)(2);
and
develop
“guidelines,”
id.
§§ 1314(f)(1), (f)(2), (f)(2)(B), (f)(2)(E), (f)(2)(F).
That groundwater is mentioned repeatedly in these
three groups of provisions, and not at all in the
federal-discharge-permitting provisions of the Act,
supports the conclusion that the omission in the
permitting sections was deliberate. It is a “familiar
principle of statutory construction * * * that a negative inference may be drawn from the exclusion of
language from one statutory provision that is included in other provisions of the same statute.” Hamdan
v. Rumsfeld, 548 U.S. 557, 578 (2006).
In total, the text and structure of the Clean Water
Act shows that Congress left the regulation of
groundwater pollution to the States, not the federal
government, under the statute.
II.
THE CLEAN WATER ACT’S LEGISLATIVE
HISTORY DEMONSTRATES THAT CONGRESS
DID NOT INTEND THE ACT TO REGULATE
DISCHARGES INTO GROUNDWATER.
The Clean Water Act’s text and structure is further
supported by its legislative history. See Gustafson v.
Alloyd Co., 513 U.S. 561, 583 (1995) (“The legislative
17
history confirms what the text of the Act dictates.”).
Both the Senate and the House rejected attempts to
enact federal control of groundwater pollution.
Those explicit rejections foreclose a finding of an
implicit extension of federal regulatory power. See
Exxon Corp., 554 F.2d at 1329 (“We cannot attribute
to Congress an intention to achieve silently and by
indirection that which it consistently refused to do
directly.”).
1. The 1972 Senate Committee on Public Works
report rejected multiple bills extending federal
regulatory jurisdiction over groundwater.
The
Committee explained that “[s]everal bills pending
before the Committee provided authority to establish
Federally approved standards for groundwaters
which permeate rock, soil, and other subsurface
formations.” S. Rep. No. 92-414, at 73 (1971); see
also Comm. on Public Works, 93d Cong., A Legislative History of the Water Pollution Control Act
Amendments of 1972 (Comm. Print 1973). But
“[b]ecause the jurisdiction regarding groundwaters is
so complex and varied from State to State, the Committee did not adopt the recommendation.” S. Rep.
No. 92-414, at 73.
The Committee “recognize[d] the essential link
between ground and surface waters and the artificial
nature of any distinction”; indeed, the Committee
emphasized that “[t]he importance of groundwater in
the hydrologic cycle cannot be underestimated.” Id.
But instead of direct federal control, the Committee’s
bill required that each State’s water-pollution-control
plan contain “affirmative controls over the injection
or placement in wells of any pollutants that may
affect ground water.” Id. That provision would
“protect ground waters and eliminate the use of deep
18
well disposal as an uncontrolled alternative to toxic
and pollution control” without direct federal regulation. Id.
2. The House, too, rejected an attempt to bring
groundwater pollution within the Clean Water Act’s
permitting regime. Representative Aspin told the
House that groundwater was omitted, and warned
House members that if explicit references to groundwater were not added, it would not be covered.
Representative Aspin stated that “when it comes to
enforcement, title IV, the section on permits and
licenses, * * * ground water is suddenly missing.”
118 Cong. Rec. 10,666 (1972) (statement of Rep.
Aspin). And he warned that “[i]f we do not stop
pollution of ground waters through seepage and
other means, ground water gets into navigable
waters.” Id. Representative Aspin therefore argued
that “to control only the navigable water and not the
ground water makes no sense at all.” Id.
But although Representative Aspin introduced an
amendment that would “bring[] ground water into
the subject of the bill, into the enforcement of the
bill,” id., it was ultimately defeated on an 86-34 vote,
see 118 Cong. Rec. H2643 (daily ed. Mar. 28, 1972)
(statement of Rep. Smith, Chairman). And this
Court has held that the defeat of a proposed amendment “strongly militates against a judgment that
Congress intended a result that it expressly declined
to enact.” Gulf Oil Corp. v. Copp Paving Co., 419
U.S. 186, 200 (1974).
Like the Senate’s rejection of the groundwatercontrol bills, the House’s consideration and rejection
of the Aspin amendment shows that Congress consciously decided to omit groundwater from the Clean
19
Water Act’s enforcement provisions. As the Fifth
Circuit has summarized, the legislative history
demonstrates that “the House, like the Senate,
thought the bill would leave control of groundwater
pollution exclusively to the states.” Exxon Corp., 554
F.2d at 1329. This Court should conclude the same.
III.
OTHER STATE AND FEDERAL ENACTMENTS
PROTECT
GROUNDWATER
WITHOUT
STRETCHING THE CLEAN WATER ACT BEYOND
ITS TEXT.
Amici’s position that the Clean Water Act does not
regulate discharges into or through groundwater
does not mean that groundwater pollution is not a
serious problem. It is. In fact, the Senate Committee on Environment and Public Works held a hearing
on the issue in April 2018 where both majority and
minority witnesses agreed that groundwater pollution was a real problem. See The Appropriate Role of
States and the Federal Government in Protecting
Groundwater: Hearing Before the S. Comm. on Env’t
& Pub. Works, 115th Cong. __ (Apr. 18, 2018) (“Protecting Groundwater Hearing”). While protection of
groundwater is without question of great importance,
other tools—state and federal—are better suited to
address the problem than the blunt instrument of
the Clean Water Act’s discharge permitting program.
1. The Clean Water Act recognizes States’ independent authority “to adopt or enforce” their own
“standard[s] or limitation[s]” over the discharge of
pollutants and effluent limitations.
33 U.S.C.
§ 1370. In fact, all 50 States have done so. See Nat’l
Ass’n of Clean Water Agencies et al., Comment
Letter on Clean Water Act Coverage of “Discharges
of Pollutants” via a Direct Hydrologic Connection to
20
Surface Water at 10 & Attachment A (May 21, 2018)
(“NACWA EPA Comment Letter”), available at
https://tinyurl.com/y5gfdvan (50-state survey).
States’ independent authority to regulate groundwater quality is not only consistent with the Clean
Water Act’s text, structure, and legislative history,
but also allows States to regulate in ways tailored to
their unique waterways and needs. And States have
long exercised their power to protect intrastate
waters and groundwater independent of the federaldischarge permitting program. See States of West
Virginia et al., Comment Letter on Clean Water Act
Coverage of “Discharges of Pollutants” Via a Direct
Hydrologic Connection to Surface Water at 9-11
(May
21,
2018),
available
at
https://tinyurl.com/y6q8ay4q.
States have also
exercised independent authority to regulate groundwater contamination, often through permitting
measures. See generally id.; Protecting Groundwater
Hearing (statement of Martha Clark Mettler, Ass’t
Comm’r, Office of Water Quality, Indiana Dep’t of
Envtl. Mgmt) (summarizing varied state-law approaches). These state laws and differing approaches confirm that States are equal to the task of protecting groundwater.
2. Other Federal statutes independent of the Clean
Water Act provide appropriate, alternative vehicles
for regulating groundwater quality.
As EPA
acknowledges, “[i]n other federal statutes, * * *
Congress explicitly envisioned a federal role in
regulating groundwater quality.” EPA Interpretative Statement, 84 Fed. Reg. at 16824 (emphasis
added). It is through these other federal statutes
that Congress provided federal authority to address
21
groundwater contamination otherwise absent from
the Clean Water Act.
First, the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42
U.S.C. § 9601 et seq. (1980), authorizes federal
removal of pollutants or other remedial action
“[w]henever * * * any hazardous substance is released or there is a substantial threat of such a
release into the environment.” 42 U.S.C.
§ 9604(a)(1)(A). As in the Clean Water Act, “hazardous substance” is defined broadly. See id. § 9601(14).
Yet, unlike the Clean Water Act, CERCLA specifically includes in its definition of “environment,” “navigable waters” and “any other surface water, ground
water, drinking water supply, land surface, or subsurface strata * * * within the United States.” Id.
§ 9601(8) (emphasis added). Congress’s inclusion of
“ground water” in CERCLA and not the Clean Water
Act is telling; it shows that if Congress wanted to
include groundwater in the Clean Water Act, it
“knew how to.” Central Bank of Denver, N.A. v. First
Interstate Bank of Denver, N.A., 511 U.S. 164, 176
(1994).
Second, the Resource Conservation and Recovery
Act (RCRA), 42 U.S.C. § 6901 et seq. (1976), permits
EPA to bring an action against “any person” whose
“handling, storage, treatment, transportation or
disposal of any solid waste or hazardous waste may
present an imminent and substantial endangerment
to health or the environment.” Id. § 6973(a). And
“disposal” includes “discharge * * * of any solid waste
or hazardous waste into or on any land or water so
that such solid * * * waste or any constituent thereof
may * * * be * * * discharged into any waters, including ground waters.” Id. § 6903(3) (emphasis added).
22
Finally, the Safe Drinking Water Act (SDWA), 42
U.S.C. § 300f et seq. (1974), enacted just two years
after the Clean Water Act, provides measures specifically geared towards preventing and controlling
certain types of groundwater pollution. See Pet. 6-7,
11. Like the Clean Water Act, the SDWA recognizes
the role states play in regulating groundwater pollution. See 42 U.S.C. §§ 300h, h-1. EPA under the
SDWA is charged with “developing minimum requirements for” state underground injection control
“programs that prevent injection wells from contaminating underground sources of drinking water.”
Pet. 6; see 42 U.S.C. § 300h. The SDWA thus evidences Congress’s intent to provide for groundwater
protection independent of the Clean Water Act and
federal-discharge permitting program. Had Congress wanted to regulate groundwater contamination
through that mechanism, it could have—and would
have—done so explicitly.
IV.
EXPANDING FEDERAL JURISDICTION OVER
GROUNDWATER WOULD RESULT IN
UNINTENDED HARMFUL CONSEQUENCES.
1. The court of appeals’ decision threatens to upend the Clean Water Act’s existing cooperativefederalism regime. The Clean Water Act “establishes a distinctive variety of cooperative federalism,”
one “anticipat[ing] a partnership between the States
and the Federal Government.” U.S. Dep’t of Energy
v. Ohio, 503 U.S. 607, 633 (1992) (quoting Arkansas
v. Oklahoma, 503 U.S. 91, 101 (1992)). Expanding
federal regulation over groundwater would supersede state authority and add unnecessary costs and
regulatory uncertainty—contradicting the coopera-
23
tive federalism Congress implemented in the Clean
Water Act.
If the Ninth Circuit’s decision is left to stand, the
breadth of public activities subject to federal regulation and liability could balloon. Under it, “[e]veryday
activities, including farming, ranching, or having a
septic tank in your backyard could require a federaldischarge permit. This isn’t what Congress intended
when it passed the Clean Water Act.” Protecting
Groundwater Hearing (statement of Sen. Barrasso,
Chairman, S. Comm. on Env’t & Pub. Works).
Subjecting these workaday activities to Clean Water
Act permitting—a regime that this Court has previously characterized as “arduous, expensive, and
long”—would be unworkable. U.S. Army Corps of
Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016).
The States that have appeared in this case quantify
the real-world implications this expanded permitting
regime would have. Under this theory, the Ninth
Circuit’s approach could subject home septic systems
to federal-discharge permitting—as these systems
often discharge pollutants into groundwater—where
it could be shown that such discharges eventually
reach “navigable waters.” This “could increase the
number of [federal-discharge] permits by roughly
220,000 in West Virginia alone,” representing “an
astronomical 35,000% increase over the number of
[federal-discharge] permits—607—issued by West
Virginia in fiscal year 2017.” State of West Virginia
et al. Cert. Amicus Br. 13-14 (footnotes omitted).
Similarly, “[p]oint sources that require[ ] [federaldischarge] permitting in Arizona alone could possibly
jump more than 200,000%” due to that State’s hundreds of thousands of septic systems. Br. of Amici
Curiae States of Arizona, et al. in Support of Petition
24
for Rehearing En Banc 8-9, No. 15-17447 (9th Cir.
Mar. 12, 2018), ECF No. 75. This is hardly the
regime Congress could have envisioned when it
crafted the federal-discharge permitting program
almost 50 years ago.
2. Further, whether there is a determination of
any hydrologic connection between groundwater and
surface water is a “site-specific” inquiry requiring
intricate “technical assessments.”
Protecting
Groundwater Hearing, 115th Cong. __ (statement of
Amanda Waters, Gen. Counsel, Nat’l Ass’n of Clean
Water Agencies). That assessment would include
consideration of “topography, hydrology, and geology
as well as climate, distance to surface water, and
travel time, among other factors.” NACWA EPA
Comment Letter, supra, at 8. These complex assessments add to the regulatory uncertainty posed by
the Ninth Circuit’s ruling. “Due to this complexity,
as well as varying state legal frameworks, there is
great diversity of state approaches” regarding the
regulation of groundwater pollutants.
Protecting
Groundwater Hearing, 115th Cong. __ (statement of
Martha Clark Mettler, Ass’t Comm’r, Office of Water
Quality, Indiana Dep’t of Envtl. Mgmt); see also
supra pp. __ (discussing varied state law approaches). Nevertheless, “states are consistent in their
desire to retain their current flexibilities to regulate
these discharges using their [own] discretion to
determine which laws and regulatory schemes apply.” Id. This comports with cooperative federalism
principles as well. States are in the best position to
assess what works for themselves based on their
unique landscapes, existing legal frameworks, and
regulatory processes. The Court should respect that
individuality and allow States to continue to function
25
as laboratories of groundwater environmental protection.
3. Expanding the scope of federal-discharge permitting would also divert needed funding away from the
maintenance and development of critical public
resources and infrastructure. To this end, a broad
group of states, municipal organizations, and water
utilities have voiced concern over expanding federal
regulation of groundwater. See, e.g., Ass’n of California Water Agencies et al. Cert. Amicus Br. 8-25;
State of West Virginia et al. Cert. Amici Br. 5-25.
Two impacts stand out.
First, public utilities ultimately pass on the cost of
environmental compliance to their ratepayers—
average Americans. The federal-discharge permitting program and Clean Water Act liability must
therefore remain predictable. Imposing new classes
of required permits and their concomitant compliance costs will hurt ratepayers who often cannot
afford an increase in their utility rates. See Protecting Groundwater Hearing, 115th Cong. __ (statement
of Amanda Waters, Gen. Counsel, Nat’l Ass’n of
Clean Water Agencies).
Second, the Ninth Circuit’s extension of Clean Water Act liability can affect countless drinking water
pipelines, sewer collection systems, and other public
utilities. These systems are often prone to leakage or
other episodic failures due to age. Id. Along those
lines, determinations necessary to issue a permit or
regulate may prove infeasible or arbitrary in the
context of a release into groundwater. Particularly,
whether or how these sources contribute to the
groundwater contamination chain may be difficult to
pinpoint or measure. “[L]eaks * * * are difficult to
26
predict and locate, and impossible to eliminate
altogether. Under [a direct hydrologic connection]
theory, each leak would potentially be regulated as a
distinct discharge under the” Clean Water Act.
NACWA EPA Comment Letter, supra, at 6. And the
Clean Water Act is a strict liability statute. 33
U.S.C. § 1311(a). If a utility cannot obtain a permit,
it will be exposed to hefty civil penalties and potential financial ruin.
According to water utility trade estimates, “approximately $600 billion [is projected to be] needed over
the next 20 years to address aging public sewer lines
and systems.” Protecting Groundwater Hearing,
115th Cong. __ (statement of Amanda Waters, Gen.
Counsel, Nat’l Ass’n of Clean Water Agencies).
Additionally, expanding the regulatory scope of
federal-discharge permitting “would have the unintended consequence of impeding beneficial and
innovative public infrastructure projects such as
groundwater recharge systems that are used to
convey stormwater or recycled wastewater into
aquifers to augment public water supplies, create
seawater intrusion barriers, prevent land subsidence, and eliminate surface outfalls to protect water
quality.” Id. To require utilities and local municipalities to shoulder an added regulatory burden
subject to the federal-discharge permitting program
would divert limited resources from these other
infrastructure priorities that have significant environmental and public health benefits. The Court
should avoid those harms by reversing the decision
below.
27
CONCLUSION
For the foregoing reasons, as well as those in Petitioner’s brief, the Ninth Circuit’s judgment should be
reversed.
Respectfully submitted,
AARON CUTLER
SEAN MAROTTA
Counsel of Record
HEATHER A. BRIGGS
PAIGE MUHLESTEIN*
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-4881
sean.marotta@hoganlovells.com
Counsel for Amici Curiae
* Admitted only in California.
Practice supervised by firm
partners admitted in the
District of Columbia.
MAY 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.