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

No. 18-260

In the Supreme Court of the United States

COUNTY OF MAUI, HAWAI’I

PETITIONER,

v.

HAWAI’I WILDLIFE FUND; SIERRA CLUB MAUI GROUP;

SURFRIDER FOUNDATION; WEST MAUI

PRESERVATION ASSOCIATION,

RESPONDENTS.

ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF WEST

VIRGINIA, 19 OTHER STATES, AND THE

GOVERNORS OF KENTUCKY AND MISSISSIPPI

IN SUPPORT OF PETITIONER

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

ZACHARY A. VIGLIANCO

Assistant Attorney

General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed at end]

QUESTION PRESENTED

Whether the Clean Water Act requires a permit

when pollutants originate from a point source but are

conveyed to navigable waters by a nonpoint source,

such as groundwater?

ii

TABLE OF CONTENTS

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

INTRODUCTION AND INTERESTS

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

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

I.

The Decision Below Cannot Be Squared

With The CWA’s Text, Structure, and

Legislative Intent..................................................6

A. Adoption Of The Atextual “Fairly

Traceable” Standard Expands The

Jurisdictional Scope Of The NPDES

Permitting Regime Beyond What

Congress Authorized And Undermines

The CWA’s Cooperative Federalist

Structure .........................................................6

B. The CWA’s Structure Confirms That

Congress Did Not Intend For The

NPDES Program To Encompass Releases

Into Groundwater ......................................... 14

II. Proper Interpretation Of The CWA Will

Not Leave Groundwater or Connected

Surface Waters Unprotected .............................. 20

III. Adopting The “Fairly Traceable” Standard

Will Impose Significant Burdens On State

Environmental Protection Agencies................... 27

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

iii

TABLE OF AUTHORITIES

Page(s)

CASES

26 Crown Assocs., LLC v. Greater New Haven

Reg’l Water Pollution Control Auth.,

2017 WL 2960506 (D. Conn. July 11, 2017) ......... 12

Appalachian Power Co. v. Train,

545 F.2d 1351 (4th Cir. 1976) ............................... 12

Arkansas v. Oklahoma,

503 U.S. 91 (1992)................................................ 2, 7

Branch v. W. Petroleum, Inc.,

657 P.2d 267 (Utah 1982) ...................................... 24

Cappaert v. United States,

426 U.S. 128 (1976)................................................ 18

Exxon Corp. v. Train,

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

Georgia v. Pruitt,

326 F.Supp.3d 1356 (S.D. Ga. June 8, 2018) ..........9

Gulf Restoration Network v. McCarthy,

783 F.3d 227 (5th Cir. 2015) ...................................7

Hawai’i Wildlife Fund v. County of Maui,

886 F.3d 737 (9th Cir. 2018) ................. 2, 10, 17, 26

Hudson Cty. Water Co. v. McCarter,

209 U.S. 349 (1908).............................................. 1, 3

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987)................................................ 10

Kansas v. Nebraska,

135 S. Ct. 1042 (2015)..............................................1

Ky. Waterways Alliance v. Ky. Utils. Co.,

303 F. Supp.3d 530 (E.D. Ky. 2017) ...................... 10

Ky. Waterways Alliance v. Ky. Utils Co.,

905 F.3d 925 (6th Cir. 2018)...................... 12, 13, 31

Martin v. Waddell’s Lessee,

41 U.S. 367 (1842)....................................................1

Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007)................................................ 27

Nat. Res. Def. Council v. E.P.A.,

915 F.2d 1314 (9th Cir. 1990) ......................... 13, 17

Oregon Nat. Desert Ass’n v. Dombeck,

172 F.3d 1092 (9th Cir. 1998) ............................... 16

Oregon Nat. Res. Council v. U.S. Forest Serv.,

834 F.2d 842 (9th Cir. 1987) ................................. 15

Prairie Rivers Network v. Dynegy Midwest

Generation, LLC,

350 F. Supp. 3d 697 (C.D. Ill. 2018) ...................... 24

Pronsolino v. Nastri,

291 F.3d 1123 (9th Cir. 2002) ............................... 16

Rapanos v. United States,

547 U.S. 715 (2006)............................................ 9, 18

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Rice v. Harken Expl. Co.,

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

Shanty Town Assocs. Ltd. P’ship v. E.P.A.,

843 F.2d 782 (4th Cir. 1988) ........................... 15, 17

Sierra Club v. Virginia Elec. & Power Co.,

903 F.3d 403 (4th Cir. 2018) ................................. 20

Simsbury-Avon Pres. Club, Inc. v. Metacon Gun

Club, Inc.,

575 F.3d 199 (2d Cir. 2009) ................................... 12

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Eng'rs,

531 U.S. 159 (2001)................................................ 19

Sporhase v. Nebraska, ex rel. Douglas,

458 U.S. 941 (1982)..................................................1

State ex rel. Lassen v. Harpham,

410 P.2d 100 (Ariz. 1966) ...................................... 25

State ex rel. Smith v. Kermit Lumber & Pressure

Treating Co.,

200 W. Va. 221, 488 S.E.2d 901 (1997) ................. 20

Tiegs v. Watts,

135 Wash. 2d 1 (1998) ........................................... 24

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

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

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Alaska,

521 U.S. 1 (1997)......................................................1

United States v. Cooper,

482 F.3d 658 (4th Cir. 2007) ...................................7

United States v. Earth Sciences, Inc.,

599 F.2d 368 (10th Cir. 1979) ............................... 17

Vill. of Oconomowoc Lake v. Dayton Hudson Corp.,

24 F.3d 962 (7th Cir. 1994) ............................. 10, 11

Wisconsin Res. Prot. Council v. Flambeau Min. Co.,

727 F.3d 700 (7th Cir. 2013) ................................. 28

STATUTES

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

33 U.S.C. § 1251(b) ...................................... 7, 8, 18, 27

33 U.S.C. § 1288 ........................................................ 15

33 U.S.C. § 1311 ..........................................................8

33 U.S.C. § 1311(a) ......................................................7

33 U.S.C. § 1329(a) .................................................... 16

33 U.S.C. § 1342(b) .................................................... 27

33 U.S.C. § 1362 .............................................. 9, 11, 12

Ariz. Rev. Stat. §§ 49-203.......................................... 21

Colo. Rev. Stat. §25-8-501 ......................................... 21

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Kan. Stat. § 65-164 .................................................... 22

Ky. Rev. Stat. § 224.70-110 ................................. 22, 23

Mich. Comp. Laws § 324.3109 .................................. 23

S.C. Code § 48-1-90(A)............................................... 23

W. Va. Code § 22-11-8(b) ........................................... 21

OTHER AUTHORITIES

81 Fed. Reg. 31,344 (May 18, 2016) .......................... 27

83 Fed. Reg. 27,769 (June 14, 2018) ......................... 28

84 Fed. Reg. 16,810

(Apr. 23, 2019) ..................... 9, 11, 17, 18, 29, 30, 32

84 Fed. Reg. 4154 (Feb. 14, 2019) ...............................9

Association of Clean Water Administrators, Report

on State NPDES Fee Permitting Program

Structures (June 2014) .......................................... 29

EPA ICR No. 0229.21, Supporting Statement,

Information Collection Request for National

Pollutant Discharge Elimination System (NPDES)

Program (Renewal) (Dec. 2015) ............................ 28

Keeping the Clean Water Act Cooperatively Federalor, Why the Clean Water Act Does Not Directly

Regulate Groundwater Pollution,

42 Wm. & Mary Envtl. L. & Pol'y

Rev. 447 (2018) ................................................ 12, 14

Senate Report No. 92-414, reprinted in 1972

U.S.C.C.A.N. 3668 (Oct. 28, 1971) ........ 8, 11, 14, 15

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Taking Groundwater,

91 Wash. U.L. Rev. 253 (2013) .............................. 24

U.S. Envtl. Prot. Agency, 319 Grant Program for

States and Territories (Oct. 19, 2017) .................. 25

U.S. Envtl. Prot. Agency, Do your Part—Be

SepticSmart! (Sept. 2012)...................................... 30

U.S. Envlt. Prot. Agency, Protecting Underground

Sources of Drinking Water from Underground

Injection (UIC) (Apr. 15, 2018).............................. 31

U.S. Envtl. Prot. Agency, Section 319 Nonpoint

Source Program Success Story: Passive Treatment

Systems Restore Water Quality (2008)................ 26

U.S. Envtl. Prot. Agency, Section 319 Nonpoint

Source Program Success Story: Success

Countering Acid Mine Drainage in Cheat River

Watershed (2005) ................................................... 26

U.S. Envtl. Prot. Agency, Success Stories about

Restoring Water Bodies Impaired by Nonpoint

Source Pollution (Apr. 29, 2019) ........................... 25

U.S. Census Bureau, QuickFacts

West Virginia (July 1, 2018) ................................. 30

Vandas, Winter & Battaglin, Water and the

Environment 4, American Geological Institute

(2002)................................................................ 10, 18

W. Va. Dept. of Envtl. Prot., Fiscal Year 2016-17

Annual Report........................................................ 30

1

INTRODUCTION AND

INTERESTS OF AMICI CURIAE 1

Every State has an abiding interest in the

conservation and regulation of its natural resources.

See, e.g., Hudson Cty. Water Co. v. McCarter, 209

U.S. 349, 355 (1908) (recognizing that States, acting

as “representative[s] of the interests of the public,

ha[ve] . . . standing in court to protect the atmosphere,

the water, and the forests within [their] territory”).

Indeed, this Court has repeatedly affirmed that

preserving, maintaining, and encouraging the

beneficial use of the natural bounty within a State’s

borders is an inherent facet of state sovereignty—and

this rule holds particular sway for intrastate waters.

In 2015 the Court emphasized that “[a]uthority over

water is a core attribute of state sovereignty,” Kansas

v. Nebraska, 135 S. Ct. 1042, 1067 (2015), echoing a

refrain common throughout our history that, as cosovereigns in our federal system, States “hold the

absolute right to all their navigable waters, and the

soils under them, for their own common use,” Martin

v. Waddell’s Lessee, 41 U.S. 367, 410 (1842). See also,

e.g., United States v. Alaska, 521 U.S. 1, 5 (1997) (“the

[States’] power to control . . . fishing, and other public

uses of water” is “an essential attribute of [their]

sovereignty”); Sporhase v. Nebraska, ex rel. Douglas,

458 U.S. 941, 946 (1982) (noting that a “State’s

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part, and no person or entity

other than amici contributed monetarily to its preparation or

submission.

2

interest in preserving its waters [is] well within its

police power”).

The Clean Water Act (“CWA”), 33 U.S.C. § 1251 et

seq., was designed to complement—not usurp—the

States’ primary role as stewards of their water

resources. While the overall purpose of the CWA is to

“restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters,” id.

§ 1251(a), Congress also “recognize[d], preserve[d],

and protect[ed]” the “primary responsibilities and

rights of [the] States” in this realm, id. § 1251(b)

(emphasis added). Thus, at the same time Congress

authorized the CWA’s regulatory framework, it made

clear that the States retain their traditional authority

“to prevent, reduce, and eliminate pollution, [and] to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources.” Id. The CWA therefore reflects a “careful

balanc[ing] [of] competing policies and interests”

specifically designed to protect the “sovereign

interests of the States.” Arkansas v. Oklahoma, 503

U.S. 91, 106-07 (1992).

The decision below, Hawai’i Wildlife Fund v.

County of Maui, 886 F.3d 737 (9th Cir. 2018),

threatens to upend a critical component of this

balance Congress struck. By adopting a standard

wholly divorced from the CWA’s text, structure, and

legislative intent, the decision greatly expands the

scope of waters subject to federal jurisdiction and the

CWA’s regulatory requirements. This reworking of

the statutory framework infringes upon the sovereign

prerogative of the States to manage their water

3

resources—especially those, like groundwater, that

often lie wholly intrastate. See Hudson Cty., 209 U.S.

at 356 (“few public interests are more obvious [and]

indisputable . . . than the interest of . . . a state to

maintain the rivers that are wholly within it”). And

given that the federal permitting process at the center

of this case is implemented by state environmental

protection agencies, this expansion will almost

certainly impose unnecessary and unworkable

bureaucratic burdens on those entities—to the

detriment of their other, preexisting conservation

efforts.

Amici curiae—the States of West Virginia,

Alabama, Alaska, Arkansas, Florida, Georgia, Idaho,

Indiana, Kansas, Kentucky, Louisiana, Missouri,

Montana, Nebraska, Ohio, Oklahoma, South

Carolina, Texas, Utah, Wyoming, and the Governors

of Kentucky and Mississippi—have an interest both in

preserving the quality of their water resources and in

preventing

unlawful

incursions

upon

their

sovereignty. Each amici State enforces its own

statutory and regulatory regime designed to conserve

and develop its water resources for the benefit of its

citizenry—now and into the future. The decision

below represents an unjustified expansion of the

CWA’s jurisdictional breadth that will significantly

burden, and even effectively displace, these protective

measures. Fidelity to the statutory text, by contrast,

properly apportions responsibility for protection of our

Nation’s water resources between federal and state

regulators. In doing so, it better secures those

resources, marshalling the power of federal regulation

4

where appropriate and leaving to the States the task

of tailoring individualized solutions to the complex

but localized problem of groundwater pollution.

Amici accordingly urge this Court to repudiate the

flawed and overreaching decision below, and thereby

restore the proper balance between state and federal

regulation that the CWA—correctly read—demands.

SUMMARY OF THE ARGUMENT

I. Through its enactment of the CWA and its

federal

centerpiece—the

National

Pollutant

Discharge Elimination System (“NPDES”)—Congress

crafted a two-tiered regulatory framework designed to

protect our Nation’s waters. The text of the CWA

reflects the statute’s cooperative federalism structure,

drawing clear lines between the discharge of a

pollutant from a point source into the “waters of the

United States”—which falls within the ambit of the

federal regime—and contaminants that are not

released into the “waters of the United States” or

discharged from a point source—which are subject to

state regulation.

This organizational paradigm

leverages the proximity of the States to sources of

pollution and the resources they threaten, which in

turn encourages a closely tailored, localized approach,

and preserves States’ sovereign prerogative to

regulate and conserve their natural resources—

particularly intrastate groundwater.

Congress’s intent to adopt this two-tiered

framework is readily apparent. The plain language of

the CWA places defined, textual limits on the

jurisdictional scope of the NPDES through its

5

definitions of “the discharge of a pollutant,” “point

source,” and “navigable waters.” Legislative history

confirms that Congress sought to regulate directly

only a particular subset of the Nation’s water

resources, and specifically did not intend to displace

the primacy of States when it comes to regulating

groundwater. And the vast majority of courts—

including this one—have relied on these factors to

conclude that Congress did not intend for the CWA to

directly regulate groundwater.

Under these textual limitations, only the

“discharge of a pollutant” from or conveyed by a point

source into “the waters of the United States” falls

within the ambit of the NPDES regime. Because

groundwater is neither a point source nor part of “the

waters of the United States,” discharge from a point

source into groundwater is not subject to federal

regulation even where the released substance

migrates through the subterranean medium and

eventually reaches jurisdictional waters. Accordingly,

no NPDES permit is required.

II. Nevertheless, this textual conclusion does not

mean that releases into groundwater are unregulated.

Fulfilling their role as primary conservators of

intrastate water resources, States have long enforced

comprehensive regulatory schemes that cover

releases into groundwater and intrastate waters.

Thus, while the releases at issue in this case—and

those like them—fall outside the ambit of the federal

statute, they are almost certainly subject to analogous

state-level permitting requirements and standards

that protect groundwater.

6

III. Further, because almost every State has

assumed responsibility for implementation of the

federal NPDES program, expansion of its scope will

place a significant burden on States’ environmental

protection agencies. And the expansion wrought by

adopting the Ninth Circuit’s “fairly traceable”

standard would not be marginal. Millions of home

septic systems, mine sites, catch-basins, oil and

natural gas wells, and water treatment plants

nationwide emit releases into groundwater that may

eventually migrate to “the waters of the United

States.” The load of NPDES permits that may need to

be issued and enforced by state agencies is likely to

increase astronomically if the decision below is left in

place. These increased burdens threaten to divert

scarce resources away from state-specific programs

that already protect the Nation’s waters—making it

likely that, rather than increase the degree of

environmental protection state agencies provide,

applying the “fairly traceable” standard nationwide

will weaken those agencies’ important efforts.

ARGUMENT

I.

The Decision Below Cannot Be Squared With The

CWA’s Text, Structure, and Legislative Intent.

A. Adoption Of The Atextual “Fairly Traceable”

Standard Expands The Jurisdictional Scope

Of The NPDES Permitting Regime Beyond

What Congress Authorized And Undermines

The CWA’s Cooperative Federalist Structure.

In the CWA’s first subsection, Congress

announced its fundamental purpose: “to restore and

7

maintain the chemical, physical, and biological

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

In service of that overarching objective, Congress

announced a “national goal” to eliminate “the

discharge of pollutants into the navigable waters.” Id.

The NPDES is one of the primary regulatory

mechanisms by which this goal is pursued. See id.

§ 1311(a) (“Except as in compliance with this section

and [other sections providing for NPDES permits], the

discharge of any pollutant by any person shall be

unlawful.”)

Congress did not, however, authorize pursuit of

this goal by any means necessary, nor did it elevate

the NPDES—the quintessentially federal portion of

the CWA’s regulatory framework—above all other

programs and initiatives that protect our Nation’s

waters. Indeed, on the heels of proclaiming the

statute’s central objective, Congress declared in the

CWA’s second subsection its intent to “recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution,” and “to plan the development and

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

§ 1251(b) (emphasis added). Clearly then, as this

Court has already affirmed, “[t]he Clean Water Act

anticipates a partnership between the States and the

Federal Government, animated by a shared

objective.” Arkansas, 503 U.S. at 101.

This partnership makes the CWA one of the

paradigmatic examples of “cooperative federalism.”

See, e.g., Gulf Restoration Network v. McCarthy, 783

F.3d 227, 230, 241 (5th Cir. 2015) (“Both parties

8

emphasize the fact that the CWA is a cooperative

federalism regime.”); United States v. Cooper, 482

F.3d 658, 667 (4th Cir. 2007) (“In the CWA, Congress

expressed its respect for states’ role through a scheme

of cooperative federalism.”). As the key committee

report on the bill that became the CWA phrased it, it

has long been an “important principle of public policy”

that “[t]he States shall lead the national effort to

prevent, control and abate water pollution.” S. Rep.

No. 92-414, reprinted in 1972 U.S.C.C.A.N. 3668,

3669. The CWA did not upend that policy; Congress

expressly and unambiguously embraced it. See 33

U.S.C. § 1251(b); S. Rep. No. 92-414, reprinted in 1972

U.S.C.C.A.N. 3668, 3678 (acknowledging the primary

goal of the CWA—elimination of the discharge of

pollutants—and stating that “[t]he States are

declared to have the primary responsibility and right

to implement such a goal”). Moreover, the Senate

report explicitly recognized that “[t]he objective of [the

CWA] will be met only if the States have vigorous and

adequate pollution control programs.” S. Rep. No. 92414, reprinted in 1972 U.S.C.C.A.N. 3668, 3685

(emphasis added). The federal aspects of CWA

regulation—such as the NPDES—were thus never

intended to represent an all-encompassing framework

for protecting every last drop of water from all sources

of pollution. Instead, the federal components of the

CWA were designed to work in tandem with state

programs and regulations to advance the statute’s

ultimate goal.

The statutory language and, in particular, the

textual parameters of the NPDES program, confirms

9

this point. As noted above, the CWA renders unlawful

the “discharge of a pollutant” without an NPDES

permit. 33 U.S.C. § 1311. But the statutory definition

of “discharge of any pollutant”—“any addition of any

pollutant to navigable waters from any point source,”

id. § 1362(12)—cabins the jurisdictional scope of the

NPDES in two important ways.

First, a “discharge of a pollutant” occurs only

when a qualifying substance is added to “navigable

waters,” 33 U.S.C. § 1362(12), which, in turn, is

defined as “the waters of the United States,” id.

§ 1362(7). The precise breadth of “the waters of the

United States” is an open question. See, e.g., Georgia

v. Pruitt, 326 F. Supp. 3d 1356, 1364-65 (S.D. Ga.

June 8, 2018) (granting preliminary injunction

against enforcement of the EPA’s 2015 definition of

“the waters of the United States”). Notably, the

Environmental Protection Agency (“EPA”) recently

promulgated a proposed rule that would revise its

understanding of what waters fall within its ambit,

see 84 Fed. Reg. 4154 (Feb. 14, 2019), as well as an

interpretive statement addressing the very question

before the Court now, see 84 Fed. Reg. 16,810 (Apr.

23, 2019).

But while the exact contours of “the waters of the

United States” may be unsettled (for now), this Court

has spoken directly to what that term does not

include. “The waters of the United States” does not

“refer to water in general,” but instead encompasses

only “relatively permanent, standing or flowing bodies

of water” such as “streams, oceans, rivers, lakes, and

bodies of water forming geographical features.”

10

Rapanos v. United States, 547 U.S. 715, 732-33 (2006)

(Scalia, J., plurality op.); id. at 778 (Kennedy, J.,

concurring) (rejecting concept of “navigable waters”

that would “permit federal regulation [of water]

alongside a ditch or drain, however remote and

insubstantial, that eventually may flow into

traditional navigable waters”). In short, there must

be some discernable boundary between jurisdictional

and nonjurisdictional waters—otherwise “why insert

the qualifying clause [“of the United States”] in the

statute?” Vill. of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962, 965 (7th Cir. 1994).

Critically, groundwater—which encompasses as

much as 98% of the Earth’s “accessible fresh water”2—

unquestionably falls outside this statutory paradigm.

Even the court below does not suggest otherwise. Cty.

of Maui, 886 F.3d at 746 n.2 (“We assume without

deciding the groundwater here is neither a point

source nor a navigable water under the CWA.”). And

for good reason, as a plethora of authorities confirm

that Congress did not intend for releases into or

conveyed by groundwater to fall within the ambit of

the NPDES permitting regime.

Even before

announcing Rapanos’s more disciplined view, for

instance, this Court emphasized that the CWA

“applies to virtually all surface water in the country.”

Int’l Paper Co. v. Ouellette, 479 U.S. 481, 486 (1987)

(emphasis added). Similarly, the lower courts have

followed this Court’s guidance and “overwhelmingly

2 Vandas, Winter & Battaglin, Water and the Environment 4,

American Geological Institute (2002), available at http://

www.agiweb.org/environment/publications/water.pdf.

11

found that groundwater, even if hydrologically

connected to navigable waters, is not itself a navigable

water under the CWA.” Ky. Waterways Alliance v.

Ky. Utils. Co., 303 F. Supp.3d 530, 542 (E.D. Ky. 2017)

(collecting authorities); see also, e.g., Rice v. Harken

Expl. Co., 250 F.3d 264, 269 (5th Cir. 2001) (citing

Exxon Corp. v. Train, 554 F.2d 1310, 1322 (5th Cir.

1977)); Oconomowoc Lake, 24 F.3d at 965.

These decisions are buttressed by legislative

history illustrating that Congress did not intend for

the CWA to expand federal jurisdiction to

groundwater. There were “[s]everal bills pending

before the Committee” that would have “provided

authority to establish Federally approved standards

for groundwaters which permeate rock soil, and other

subsurface formations.” S. Rep. No. 92-414, reprinted

in 1972 U.S.C.C.A.N. 3668, 3739. Yet because “the

jurisdiction regarding groundwaters is so complex and

varied from State to State, the Committee did not

adopt this recommendation.” Id. And finally, as the

EPA declared in the recently released interpretive

statement, its regulations “have never defined ‘waters

of the United States’ to include groundwater.” 84 Fed.

Reg. 16,810, 16,813; see also id. at 16,814 (“when

analyzing the [CWA] in a holistic fashion, Congress’s

intent becomes evident: Congress did not intend for

the NPDES program to address any pollutant

discharges to groundwater, even where groundwater

may be hydrologically connected to surface waters”).

Second, a discharge must be conveyed to

jurisdictional waters by a “point source,” which is

defined as “any discernible, confined and discrete

12

conveyance.” 33 U.S.C. § 1362(14). Each of these

statutory descriptors matters. Every example in the

statute’s nonexhaustive list of point sources—“any

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

fissure, container, rolling stock, concentrated animal

feeding operation, or vessel or other floating craft,

from which pollutants are or may be discharged,” id.

§ 1362(14)—is a readily identifiable and discrete

object or feature capable of channeling and

transporting pollutants to navigable waters.

Groundwater is none of these things. Instead of

being “discernible, confined and discrete,” by its very

nature it is diffuse and amorphous. Ky. Waterways

Alliance v. Ky. Utils Co., 905 F.3d 925, 933 (6th Cir.

2018). Unlike pollutants released from a point source,

“polluted groundwater typically does not flow in

discrete channels but instead oozes through the

hollow spaces of subterranean material.” 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, 465 (2018). And “[i]t

is basic science that ground water 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., 2017

WL 2960506, at *8 (D. Conn. July 11, 2017) (citation

omitted).

Further, as courts routinely recognized before the

decision below, “Congress consciously distinguished

between point source and nonpoint source discharges,

giving EPA authority under the [CWA] to regulate

13

only the former.” Appalachian Power Co. v. Train, 545

F.2d 1351, 1373 (4th Cir. 1976) (emphasis added); see

also, e.g., Simsbury-Avon Pres. Club, Inc. v. Metacon

Gun Club, Inc., 575 F.3d 199, 219 (2d Cir. 2009)

(reasoning that the CWA “clearly indicates that there

is a category of nonpoint source pollution,” and leaves

its regulation “to the states”); Nat. Res. Def. Council

v. E.P.A., 915 F.2d 1314, 1316 (9th Cir. 1990)

(explaining that the CWA “ban[s] only discharges

from point sources”). To be sure, the CWA reaches

some ostensibly “indirect” discharges into navigable

waters, such as where a pollutant (whatever its

origin) is conveyed by a series of point sources—

flowing, for example, from a pipe to a drainage ditch

and so on—before eventually reaching “the waters of

the United States.”

Pollution that reaches

jurisdictional water via migration through a nonpoint

source, however, is different in kind.

Individually and in concert, these textual

qualifiers set the outer parameters of the NPDES

permitting regime. Under the statutory text, a permit

is required only for a discharge from a point source

into navigable waters.

Thus, discharges into

groundwater—even from a point source—do not

require a permit, because groundwater is not part of

“the waters of the United States.” And even if such a

discharge eventually reaches jurisdictional waters by

migration through underground soil and water, a

permit would still not be necessary because

groundwater is not a point source. See Kentucky

Waterways, 905 F.3d at 934 (explaining that when

“the groundwater is adding pollutants to [a navigable

14

water],” the pollutants “are not coming from a point

source,” and “[t]he CWA has no say over that

conduct”).

B. The CWA’s Structure Confirms That

Congress Did Not Intend For The NPDES

Program To Encompass Releases Into

Groundwater.

The existence of these textual limits is reinforced

by the larger structure of the CWA. Congress was

well aware that pollution from nonpoint sources—

much of which (perhaps even the majority) flows into

groundwater—was a serious threat to the overall

health and integrity of our Nation’s water resources.

See S. Rep. No. 92-414, reprinted in 1972

U.S.C.C.A.N. 3668, 3705 (describing various nonpoint

sources as “major contributors to the Nation’s water

pollution problem” and a “major source of pollution,”

such that “the waters of the Nation cannot be restored

and their quality maintained unless the very complex

and difficult problem of nonpoint sources is

addressed”); Schiff, 42 Wm. & Mary Envtl. L. & Pol’y

Rev. at 459 (reproducing floor comment of Senator

Edwin Muskie, chief sponsor of the CWA in the

Senate, that “a great quantity of pollutants is

discharged by [nonpoint source] runoff”).

Congress’s response to the pressing problem of

nonpoint source pollution was not, however, the

NPDES permitting regime. Instead, recognizing that

“the control of nonpoint source pollution [i]s so

dependent on such site-specific factors as topography,

soil structure, rainfall, vegetation, and land use that

its uniform federal regulation [i]s virtually

15

impossible,”

Congress

“shift[ed]

primary

[responsibility] for the control of nonpoint source

pollution to the states.” Shanty Town Assocs. Ltd.

P’ship v. E.P.A., 843 F.2d 782, 791 (4th Cir. 1988).

With that said, Congress did not entirely abdicate

the field of nonpoint source regulation. Instead, it

imposed a “mandatory planning process” that

required States “to identify, in accordance with

federal guidelines,” areas with “substantial water

quality control problems,” and to “formulate and

operate a comprehensive . . . management plan for

each such area”—including “procedures for the

identification and control of the area’s major sources

of nonpoint source pollution.” Shanty Town, 843 F.2d

at 791 (citing 33 U.S.C. § 1288). This separate section

of the CWA reflects the reality that “[n]onpoint

sources, because of their very nature, are not

regulated under the NPDES,” and that Congress

instead “encourage[d] states to develop areawide

waste treatment management plans.” Or. Nat. Res.

Council v. U.S. Forest Serv., 834 F.2d 842, 849 (9th

Cir. 1987) (citing 33 U.S.C. § 1288); see also S. Rep.

No. 92-414, reprinted in 1972 U.S.C.C.A.N. 3668,

3706 (explaining that the CWA “provides a

mechanism to establish a program to control the

principal nonpoint sources of water pollutants”

involving state-created plans “for nonpoint source

pollution control”).

Then, concerned that nonpoint source pollution

had not been adequately ameliorated in the original

statute, Congress amended the CWA in 1987 to add

Section 319. See Or. Nat. Res. Council, 834 F.2d at

16

849 n.12 (“Congress recently amended the Clean

Water Act and added a new provision dealing with

nonpoint sources of pollution which provides grants

and assistance to states who develop programs to deal

with nonpoint sources.”). This amendment “directs

states to adopt ‘nonpoint source management

programs’”; authorizes “grants for nonpoint source

pollution reduction”; and mandates state reports to

the EPA identifying “those navigable waters within

the State which, without additional action to control

nonpoint sources of pollution, cannot reasonably be

expected to attain or maintain applicable water

quality standards or the goals and requirements of

this chapter.” Pronsolino v. Nastri, 291 F.3d 1123,

1138 (9th Cir. 2002) (quoting 33 U.S.C.

§ 1329(a)(1)(A)). In the wake of this amendment,

States now have an obligation to “describe [their]

programs for reducing nonpoint source pollution and

the process[es] [they have implemented] ‘to reduce, to

the maximum extent practicable, the level of

pollution’ resulting from particular categories of

nonpoint source pollution.” Id. (quoting 33 U.S.C.

§ 1329(a)(1)(C)).

It is through this planning and reporting

requirement—and the critical incentive of access to

federal grant money—that the CWA tackles nonpoint

source pollution. See Or. Nat. Desert Ass’n v.

Dombeck, 172 F.3d 1092, 1096-97 (9th Cir. 1998)

(explaining that the CWA “uses the ‘threat and

promise’ of federal grants” to address nonpoint source

pollution, and that Section 319 “similarly provides for

grants to encourage a reduction in nonpoint source

17

pollution”). Congress adopted a two-tiered regulatory

framework in which the NPDES regime encompasses

discharges from point sources into “the waters of the

United States,” and State programs (often facilitated

by federal grant money) regulate contaminants

attributable to nonpoint sources. Indeed, leaving

nonpoint source pollution of local waters to the States

reflects fundamental differences between these types

of pollution. As the EPA has recognized, “[t]he nature

of the connection between groundwater and surface

water is highly dependent on local climate,

topography, geology and the type of groundwater

formation at issue.” 84 Fed. Reg. 16,810, 16,812. And

these variables call for local—not top-down—

solutions.

See Shanty Town, 843 F.2d at 791

(discussing the “practical difficulties” of regulating

nonpoint source pollution); Nat. Res. Def. Council, 915

F.2d at 1316 (“The [CWA] focused on point source

polluters presumably because they could be identified

and regulated more easily than nonpoint source

polluters.”); United States v. Earth Sciences, Inc., 599

F.2d 368, 373 (10th Cir. 1979) (“it is clear from the

legislative history Congress would have [directly]

regulated so-called nonpoint sources if a workable

method could have been derived”).

Thus, a holistic examination of the CWA’s text

and structure shows that the court below’s expansion

of the CWA’s jurisdictional scope is directly at odds

with the expressed will of Congress. The Ninth

Circuit’s atextual standard—requiring an NPDES

permit whenever a discharge that migrates through

groundwater to “the waters of the United States” is

18

“fairly traceable” to a point source, Cty. of Maui, 886

F.3d at 749—ignores this conscious congressional

choice. Further, the consequences of this approach

are vast. The EPA has noted “a fundamental principle

of hydrology that many groundwaters and surface

waters are linked through the hydrologic cycle,” 84

Fed. Reg. 16,810, 16812, and this Court recognized

almost half a century ago that “groundwater and

surface water are physically interrelated as integral

parts of the hydrologic cycle.” Cappaert v. United

States, 426 U.S. 128, 142 (1976) (citation omitted); see

also Vandas et. al., supra n.2, at 26 (“[s]urface water

and groundwater systems are connected in most

landscapes”). Thus, the practical effect of adopting

the “fairly traceable” standard would be to extend the

reach of the NPDES permitting regime to virtually all

of the nation’s waters—and to any land capable of

absorbing water as well.

This novel and wide-reaching view of the NPDES

regime’s scope has no grounding in either the statute

or this Court’s precedents. In Rapanos, for instance,

Justice Scalia’s plurality opinion rejected an

“expansive theory” of CWA jurisdiction advanced by

the Army Corps of Engineers in part because adopting

it would have placed “virtually all” planning for the

“development and use . . . of land and water resources”

under federal control. 547 U.S. at 737. As Justice

Scalia explained, such a result would be at odds with

Congress’s express intent to preserve “the primary

rights and responsibilities of the States” under the

CWA. Id. (quoting 33 U.S.C. § 1251(b)). The same

concern animated this Court’s decision in Solid Waste

19

Agency of Northern Cook County v. U.S. Army Corps

of Engineers, where it rejected another unduly farreaching formulation of “the waters of the United

States” that would have “result[ed] in a significant

impingement of the States’ traditional and primary

power over land and water use.” 531 U.S. 159, 174

(2001) (citing Hess v. Port Authority Trans-Hudson

Corp., 513 U.S. 30, 44 (1994)).

Had Congress intended the CWA to directly

regulate the release of contaminants into

groundwater or pollution that entered the “waters of

the United States” from nonpoint sources, it would

have said so. It would not have placed textual limits

on the definition of the “discharge of a pollutant,” nor

included the statutory provisions addressing ways for

States to address nonpoint source pollution. After all,

those provisions—state planning and reporting, and

federal grant money to smooth the way—contain the

hallmarks of cooperative federalism.

Instead,

Congress adopted the CWA’s two-tiered regulatory

framework, leveraging and relying upon the States’

proximity to and familiarity with the sources of

nonpoint source pollution within their borders, to

achieve the “shared objective” of protecting and

conserving our Nation’s waters. The decision below is

wholly at odds with this structure. Accordingly, this

Court should reverse the decision below, and restore

the jurisdictional parameters of the NPDES program

to what Congress intended.

20

II. Proper Interpretation Of The CWA Will Not

Leave Groundwater or Connected Surface Waters

Unprotected.

As the previous section demonstrates, Congress

was well aware that the central goal of the CWA could

not be achieved without concerted effort to combat

groundwater contamination and control nonpoint

source pollution. But, as the Fourth Circuit recently

recognized, the CWA is not the only regulatory tool for

addressing these important issues: “The fact that

[some groundwater] pollution falls outside the scope

of the Clean Water Act’s regulation does not mean

that it slips through the regulatory cracks.” Sierra

Club v. Va. Elec. & Power Co., 903 F.3d 403, 411 (4th

Cir. 2018).

Fidelity to the CWA’s cooperative

federalist structure demands that the statute’s

federal regulatory components not be extended

beyond what Congress intended. But neither will

adherence to the text and structure of the CWA leave

our Nation’s groundwater—or the connected surface

waters it often feeds—unprotected.

States take seriously their responsibility to

protect the natural resources within their borders.

See, e.g., State ex rel. Smith v. Kermit Lumber &

Pressure Treating Co., 200 W. Va. 221, 488 S.E.2d 901

(1997) (West Virginia Department of Environmental

Quality lawsuit “seeking to compel the appellees to

clean up the hazardous waste at their business site”

as well as to recover “civil penalties and damages”).

Indeed, each of the amici States have adopted

comprehensive statutory and regulatory schemes

designed to protect and conserve their water

21

resources, including both groundwater and connected

surface waters. Examples of such laws include the

following:



In West Virginia, “[i]t is unlawful for any

person,” without a state permit, to “[a]llow

sewage, industrial wastes or other wastes, or

the effluent therefrom, produced by or

emanating from any point source, to flow into

the waters of this state.” W. Va. Code § 22-118(b); see also id. § 22-11-3(23) (defining “water”

to include “all water on or beneath the surface

of the ground” (emphasis added)). Similarly,

the Department of Environmental Protection

“establish[es] maximum contaminant levels

permitted for groundwater,” which must

“recognize the degree to which groundwater is

hydrologically connected with surface water

and other groundwater” and “provide

protection for such surface water and other

groundwater.” Id. § 22-12-4(b)-(c).



The law of Arizona, in light of that State’s arid

climate, is especially focused on protection of

its groundwaters through its comprehensive

aquifer protection permit and water quality

standards programs. Ariz. Rev. Stat. §§ 49203(A)(4), 223, 224(B).



In Colorado it is unlawful to discharge any

statutorily defined pollutant into any state

waters without first having obtained the

necessary permit from state authorities. Colo.

Rev. Stat. §25-8-501(1). “State waters” include

any and all “subsurface waters which are

22

contained in or flow in or through” the State.

Id. § 25-8-103(19).



Florida’s

regulation

of

state

waters

includes “underground waters.” Fla. Stat.

§§ 403.031(13), 403.062.

Florida requires

permits for installations expected to be sources

of water pollution that discharge to

groundwater and has a statewide groundwater

quality monitoring and permitting program.

Id. at §§. 403.087, 403.063; Fla. Admin.

Code §§ 62-520, 62-620.300. Discharges to

groundwater are not permitted to impair

contiguous surface waters. Fla. Admin. Code

§ 62-520.310. It is unlawful to discharge

pollutants to state waters without a permit,

with violators subject

to

civil and

administrative

enforcement

actions

or

criminal penalties. Fla. Stat. §§ 403.121,

403.161.



Kansas requires any “person, company,

corporation, institution or municipality” to

obtain a permit before allowing “sewage” to be

discharged into “the waters of the state.” Kan.

Stat. § 65-164(a). “Sewage” is broadly defined

to include “any substance that contains any of

the waste products or excrementitious or other

discharges from the bodies of human beings or

animals, or chemical or other wastes from

domestic, manufacturing or other forms of

industry.” Id. § 65-164(b). And “waters of the

state” specifically encompasses “subsurface

23

waters within the boundaries of the state.” Id.

§ 65-161.



Kentucky directly prohibits the discharge of

pollutants into groundwater, providing that

“no person shall, directly or indirectly . . .

discharge into any of the waters of the

Commonwealth . . . any pollutant, or any

substance that shall cause or contribute to the

pollution of the waters of the Commonwealth,”

except as authorized by state regulatory

authorities.

Ky. Rev. Stat. § 224.70-110.

“Waters of the Commonwealth” is defined to

include “all . . . bodies or accumulations of

water, surface and underground, natural or

artificial, which are situated wholly or partly

within, or border upon, this Commonwealth, or

are within its jurisdiction, except those private

waters which do not combine or effect a

junction with natural surface or underground

waters.” Id. § 224.1-300(6) (emphasis added).



Michigan law provides that a “person shall not

directly or indirectly discharge into the waters

of the state a substance that is or may become

injurious” to a broad array of interests,

including public health, commercial, industrial

and agricultural land uses, and wild flora and

fauna. Mich. Comp. Laws § 324.3109(1). The

term “waters of the state” is explicitly defined

to include “groundwaters . . . within the

jurisdiction of this state.” Id. § 324.3101(aa).



In South Carolina, it is “unlawful for a person,

directly or indirectly, to throw, drain, run,

24

allow to seep, or otherwise discharge into the

environment of the State organic or inorganic

matter” without a permit. S.C. Code § 48-190(A)(1) (emphasis added).

These State laws and others like them highlight a

crucial point: absence of a requirement to obtain an

NPDES permit is not equivalent to an unfettered

license to discharge pollutants into groundwater. An

entity or individual cannot entirely escape regulation

simply by moving a pipe away from water’s edge, such

that discharges seep into groundwater rather than

flow directly into the “waters of the United States.”

While such a move might relieve the owner of that

point source of the NPDES-permitting requirements

imposed by federal law, in almost every case the

purported regulatory void would be filled by a

complementary regulatory obligation arising under

state law. See, e.g., Tiegs v. Watts, 135 Wash. 2d 1,

12-14, 23-24 (1998); Prairie Rivers Network v. Dynegy

Midwest Generation, LLC, 350 F. Supp. 3d 697, 706

n.2 (C.D. Ill. 2018) (determining that Oconomowoc

Lake foreclosed CWA suit predicated on hydrological

connection between groundwater and jurisdictional

waters, but emphasizing that “Plaintiff is not without

recourse . . . [and] may pursue this claim in the Illinois

state courts with the Illinois EPA”).

Reliance on state environmental protections in

such a scenario is not only reasonable—it is exactly

what Congress intended by the balance it struck in

the CWA. It is also not an ephemeral promise: States

take seriously their frontline duty to protect

groundwater and combat nonpoint source pollution.

25

“Almost every [S]tate has at some point produced

legislation or judicial decisions, or both, proclaiming

the importance of groundwater regulation.” Dave

Owen, Taking Groundwater, 91 Wash. U. L. Rev. 253,

257 (2013); see also, e.g., Branch v. W. Petroleum,

Inc., 657 P.2d 267, 273 (Utah 1982) (“As Utah is one

of the most arid states in the union, the protection of

the purity of the water is of critical importance, and

the Legislature has enacted laws for the protection of

both surface and subterranean waters.”); State ex rel.

Lassen v. Harpham, 410 P.2d 100, 112 (Ariz. 1966)

(“Under-ground waters have received greater

attention of . . . state government[s] than surface

waters in water-conservation regulation.”).

Furthermore, the States’ efforts in this arena are

reinforced by federal resources that the CWA made

available. Since the CWA’s 1987 amendment, the

EPA has disbursed more than $4 billion in grants to

States and local entities to assist their efforts in

combatting nonpoint source pollution.3 The effects of

these federal resources are measureable and readily

apparent: Since 2005 the EPA has identified 779

bodies of water that were “pollution-impaired”—due

primarily to nonpoint source pollution—where

restoration efforts facilitated by Section 319 grants

3 U.S. Envtl. Prot. Agency, 319 Grant Program for States and

Territories (Oct. 19, 2017), https://www.epa.gov/nps/319-grantprogram-states-and-territories (listing total grant expenditures

on a yearly basis since 1990).

26

have

“led

to

4

improvements.”

documented

water

quality

Over $600,000 in Section 319 funding was

disbursed over a multi-year period beginning in 2003,

for instance, to fund projects that restored the water

quality in Morris Creek—a tributary of the Kanawha

River southeast of Charleston, West Virginia that had

been rendered “devoid of aquatic life” by “acid mine

drainage” that “seep[ed] out of . . . hillsides from old

[underground] mine voids.”5 In another prominent

example, “[m]ore than $1.1 million in section 319

grants” funded a series of projects targeting damage

caused by “underground and surface mines” in the

Cheat River watershed in north-central West Virginia

and southern Pennsylvania, where “many . . . streams

h[ad] been so severely degraded by acid mine drainage

that they [were] effectively dead.”6 As “a testament to

improved water quality” resulting from these Section

319 funded projects, the “once acidic” Cheat Lake—

the downstream destination of the Cheat River and its

4 U.S.

Evntl. Prot. Agency, Success Stories about Restoring

Water Bodies Impaired by Nonpoint Source Pollution (Apr. 29,

2019), https://www.epa.gov/nps/success-stories-about-restoringwater-bodies-impaired-nonpoint-source-pollution#read.

5 U.S. Envtl. Prot. Agency, Section 319 Nonpoint Source Program

Success Story: Passive Treatment Systems Restore Water

Quality 1-2 (2008), available at https://www.epa.gov/sites/

production/files/2015-12/documents/wv_morris.pdf.

6 U.S. Envtl. Prot. Agency, Section 319 Nonpoint Source Program

Success Story: Success Countering Acid Mine Drainage in Cheat

River Watershed 1-2 (2005), available at https://www.epa.gov/

sites/production/files/2015-12/documents/wv_cheat.pdf.

27

tributary streams—“is now home to bass [fishing]

tournaments.”7

In its opinion, the court below lamented that

refusing to extend the reach of the NPDES permitting

regime to releases into groundwater that migrates to

navigable waters would “make a mockery of the

CWA’s prohibitions.” Cty. of Maui, 886 F.3d at 752.

But the States have long assumed the mantle of

protecting groundwater and nonpoint source pollution

within their borders, and it is the lower court’s refusal

to recognize the cooperative balance Congress struck

that cannot be squared with the CWA’s commands.

Congress’s decision to confine the scope of the NPDES

program to discharges from point sources does not

leave groundwater unprotected or ignore the problem

of nonpoint source pollution. Extending the program’s

scope thus subverts Congress’ will and invades the

sovereign prerogative of the States—all to accomplish

a policy objective that is already being worked out

through the combined efforts of state regulators and

federal funding resources.

III. Adopting The “Fairly Traceable” Standard Will

Impose

Significant

Burdens

On

State

Environmental Protection Agencies.

While repudiating the standard the court adopted

below will not threaten the integrity of our Nation’s

water resources, adopting it could in fact undermine

existing state environmental protection measures.

The NPDES permitting regime is the centerpiece of

7 Id.

28

the CWA’s federal regulatory framework, but as a

practical matter, state environmental protection

agencies are largely responsible for implementing it.

See 33 U.S.C. § 1342(b); Nat’l Ass’n of Home Builders

v. Defs. of Wildlife, 551 U.S. 644, 650 (2007)

(explaining that although the EPA has default

responsibility for administering the NPDES

permitting system, a “State may apply for a transfer

of permitting authority to state officials”). Indeed,

after the EPA approves a State’s program, it “no

longer has authority to issue NPDES permits under

the CWA; at that point the state permitting authority

is the only entity authorized to issue NPDES permits

within the state’s jurisdiction.” Wis. Res. Prot.

Council v. Flambeau Min. Co., 727 F.3d 700, 703 (7th

Cir. 2013) (citation omitted).

The CWA was specifically designed to operate this

way: It declares that the States should “implement

the [NPDES] permit programs.” 33 U.S.C. § 1251(b).

And that intent has been largely realized: 47 States

have sought and received authority to implement the

NPDES permitting regime pursuant to Section

1342(b). See 81 Fed. Reg. 31,344, 34,345 (May 18,

2016) (“To date, 46 states and the Virgin Islands have

obtained authorization to administer the NPDES

permit program.”); 83 Fed. Reg. 27,769 (June 14,

2018) (EPA approval of Idaho—State number 47—to

obtain authorization to implement the NPDES).

Because the vast majority of States have assumed

primary responsibility over the NPDES permitting

process, burdens from any expansion of that regime

fall directly on state environmental protection

29

agencies. This Court has previously acknowledged

that the NPDES permitting process is “arduous,

expensive, and long.” U.S. Army Corps of Eng’rs v.

Hawkes Co., 136 S. Ct. 1807, 1815 (2016). As it

stands, state environmental protection agencies

already spend nearly 1.6 million hours and nearly 70

million dollars each year processing NPDES permits.8

Viewed in terms of individual States, implementation

of the NPDES program in West Virginia cost $2

million in 2014 and was the responsibility of

approximately 30 to 35 employees.9 Ohio spent more

than $10 million and employed approximately 100

people the same year, and California racked up a

nearly $32 million bill.10 Those numbers are likely to

increase by an order of magnitude—and perhaps

8 See EPA ICR No. 0229.21 Supporting Statement, Information

Collection Request for National Pollutant Discharge Elimination

System (NPDES) Program (Renewal), EPA ICR at *17, tbl. 12.1

(Dec. 2015), available at https://www.reginfo.gov/public/do/

DownloadDocument?objectID=60917402. The EPA’s estimates

are also generally consistent with those from a report compiled

by the Association of Clean Water Administrators, which

provides a State-by-State breakdown of the costs incurred

implementing the NPDES program, the number of state

employees involved in its implementation in each State, the

number of entities that have obtained an NPDES permit, and the

average fee assessed on those entities. See Association of Clean

Water Administrators, Report on State NPDES Fee Permitting

Program Structures (June 2014), available at https://www.acwaus.org/wp-content/uploads/2017/05/ACWA-NPDES-Fee-Report7-31-2014.pdf.

9

See Report on State NPDES Fee Permitting Program

Structures, supra n.3 at *49.

10 Id. at *8, *35.

30

several—if this Court allows the “fairly traceable”

standard to stand, thus creating a cascade of new

sources that will fall within the ambit of the NPDES

permitting regime.

Consider home septic systems. These systems

typically discharge pollutants (as the term is broadly

defined in the CWA) into groundwater, but

homeowners have not historically been required to

obtain an NPDES permit for those discharges. See 84

Fed. Reg. 16,810, 16812 (“neither EPA nor states have

generally required NPDES permits for [home septic

systems and other underground injection wells],

except in rare cases involving site-specific factors”).

Under the standard adopted below, however, a septic

system—a discrete object or feature—would likely

qualify as a point source, and discharges that migrate

through groundwater to jurisdictional waters would

therefore likely fall within the ambit of the NPDES

permitting regime.

The potential scope of such liability—and the

associated burden that would fall on state

regulators—is tremendous. Given the EPA’s estimate

that approximately 25% of American homes rely on

septic systems,11 adoption of the “fairly traceable”

standard could increase the number of NPDES

permits by roughly 220,000 in West Virginia alone.12

11 U.S. Envtl. Prot. Agency, Do Your Part—Be SepticSmart! 2

(Sept. 2012), available at https://www.epa.gov/sites/production/

files/2015-06/documents/septicsmart_longhomeownerguide_

english508_0.pdf.

12 See U.S. Census Bureau, QuickFacts West Virginia (July 1,

2018), https://www.census.gov/quickfacts/fact/table/wv/PST0452

31

This represents an astronomical 35,000% increase

over the number of NPDES permits—607—West

Virginia issued in fiscal year 2017.13 And the

aggregate numbers nationwide only reinforce the

staggering potential in new NPDES obligations if all

home septic systems qualify as point sources. The

EPA recently reported that “[o]ver 26 million homes

in the United States employ septic systems to treat

and dispose of household waste,” 84 Fed. Reg. 16,810,

16,812, and if even half of those systems release

pollutants that migrate to navigable water and can be

“fairly traced” back to the septic system, that could

still result in 13 million new NPDES permits under

the Ninth Circuit’s reasoning.

And septic systems account for only one new

category of point sources that could, for the first time,

be subject to the NPDES permitting regime. Under

the “fairly traceable” standard, NPDES permits would

very likely be required for wastewater treatment

plants (like the one at the center of this case) and

other relatively common underground injection wells,

as well. Municipalities and other entities use more

than 650,000 of these wells nationwide to process,

purify, and reuse wastewater, and around 180,000

17 (estimating that there are 892,226 housing units in West

Virginia).

13 W. Va. Dept. of Envtl. Prot., Fiscal Year 2016-17 Annual

Report

2, available at https://dep.wv.gov/pio/Documents/

2016-17%20Annual%20Report.pdf.

32

more wells facilitate oil and gas production.14 Even

though both categories of wells are already subject to

a variety of state and federal regulations, see id.,

under the “fairly traceable” standard they would

likely be required to obtain NPDES permits or face

liability under the CWA. The approach endorsed

below could also extend the jurisdictional scope of the

CWA to untold other sources—irrigation systems,

underground storage tanks or pipelines that spring a

leak, current and former mine sites, parking lots,

catch-basins, and many others.

What is more, the diffuse nature of groundwater

dispersal means that States likely would not be able

to complete this torrent of new NPDES permitting

with clarity, and certainly not without considerable,

unjustifiable cost.

The direction and speed of

groundwater flow depend on geography and gravity,

not design. Groundwater may (or may not) seep

through many feet of soil, porous rock, and other

subterranean matter—and often takes a circuitous,

uncertain

path—before

ultimately

reaching

jurisdictional waters. E.g., Kentucky Waterways, 905

F.3d at 933 (“One cannot look at groundwater and

discern its precise contours as can be done with

traditional point sources like pipes, ditches, or

tunnels.”).

These factors would make it extremely

challenging to draft a permit with precise discharge

14

See generally U.S. Envtl. Prot. Agency, Protecting

Underground Sources of Drinking Water from Underground

Injection (UIC) (Apr. 15, 2018), https://www.epa.gov/uic.

33

parameters, and more challenging still to monitor

compliance. It is one thing to measure outflow from a

pipe into navigable waters to ensure discharge levels

are compliant with an NPDES permit; it is quite

another to track the volume of pollutants that reach

navigable waters after seeping into the ground and

joining the complex subsurface network of

groundwater flows.

Indeed, as the EPA has

recognized, “[t]he amount of a pollutant that is

released into groundwater that will eventually reach

surface water also varies and is dependent on both the

characteristics of the pollutant itself as well as sitespecific factors.” 84 Fed. Reg. 16,810, 16,812; see also

id. (“The speed and concentration at which pollutants

move through groundwater depend on the amount

and type of pollutant, its solubility and density, and

the speed of the surrounding groundwater.). At a

minimum, States overseeing an NPDES regime that

encompasses releases traveling through groundwater

would likely need to procure expansive and timeconsuming environmental impact studies in order to

obtain a quantum of data that could (at least

conceivably) provide them with the sort of precision,

coherence, and scientific integrity necessary avoid

arbitrary regulation.

All told, the “fairly traceable” standard threatens

to drown state environmental protection agencies

under a wave of newfound responsibility, requiring

them to process and issue a swell of technologically

challenging and complex NPDES permits to sources

that have never before been subject to that process.

Handling this flood of new permits will leech already

34

scarce resources from other programs better equipped

to address groundwater pollution. See Part II, supra.

Congress did not intend to foist such a burden on the

States, nor did it desire the federal components of the

CWA to displace the protections groundwater and

other intrastate water resources already receive

under state law. This Court should accordingly

repudiate the atextual “fairly traceable” standard,

and thus ensure that the NPDES permitting regime

remains within the boundaries Congress set.

CONCLUSION

The decision of the United States Court of Appeals

for the Ninth Circuit should be reversed.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

ZACHARY A. VIGLIANCO

Assistant Attorney

General

[Additional signatures on following page]

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