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,

Petitioner,

v.

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

SURFRIDER FOUNDATION, and

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Richard A. Samp

(Counsel of Record)

Marc B. Robertson

Washington Legal Foundation

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

rsamp@wlf.org

Date: May 16, 2019

QUESTION PRESENTED

Whether the Clean Water Act, 33 U.S.C.

§§ 1311(a) & 1342(a)(1), requires a permit for the

discharge of pollutants, when the pollutants originate

from a point source but are not conveyed to navigable

waters by point sources.

iii

TABLE OF CONTENTS

Page

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

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.

PETITIONER’S GROUNDWATER INJECTIONS

ARE NOT SUBJECT TO CWA PERMITTING

BECAUSE ITS EFFLUENTS ARE NOT

CONVEYED TO NAVIGABLE WATERS BY

POINT SOURCES . . . . . . . . . . . . . . . . . . . . . . . . 8

A.

Releasing a Pollutant into

Groundwater Is Not an “Addition”

of a Pollutant “to Navigable Waters

from Any Point Source” within the

Meaning of the CWA . . . . . . . . . . . . . 10

B.

The Lower Court’s Interpretation

of the CWA Is Implausible Because

Its “Fairly Traceable” Standard Is

Vague and Prevents Entities from

Determining in Advance when

CWA Permits Are Required . . . . . . . 15

C.

The Rule of Lenity Requires that

Any Statutory Ambiguities Be

Resolved in Petitioner’s Favor . . . . . . 18

iv

Page

II.

C ONGRESS D OES NOT A UTHORIZE

SUBSTANTIALLY EXPANDED FEDERAL

REGULATION OF MATTERS TRADITIONALLY

REGULATED BY THE STATES WHEN, AS

HERE, THE RELEVANT STATUTE INCLUDES

NO CLEAR STATEMENT TO THAT EFFECT . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

v

TABLE OF AUTHORITIES

Cases:

Page(s)

Cochise Consultancy, Inc. v. United States

ex rel. Hunt, __ U.S. __,

2019 WL 2078068 (May 13, 2019) . . . . . . . . . . 7, 19

Kentucky Waterways Alliance v.

Kentucky Utilities Co.,

905 F.3d 925 (6th Cir. 2018) . . . . . . . . . . . 9, 11, 14

Leocal v. Ashcroft

543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Liparota v. United States,

471 U.S. 419 (1985) . . . . . . . . . . . . . . . . . . . . . . . 18

Rapanos v. United States,

547 U.S. 715 (2001) . . . . . . . . . . . . . . . 8, 12, 17, 22

Rice v. Harken Exploration Co.,

250 F.3d 264 (5th Cir. 2001) . . . . . . . . . . . . . . . . 10

Sierra Club v. Virginia Electric & Power Co.,

903 F.3d 403 (4th Cir. 2018) . . . . . . . . . . . 9, 11, 13

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Engineers [“SWANCC”],

531 U.S. 159 (2001) . . . . . . . . . . . . . . . . . . . . 12, 22

United States v. Agosto-Vega,

617 F.3d 541 (1st Cir. 2010) . . . . . . . . . . . . . . . . . 19

United States v. Hanousek,

176 F.3d 1116 (9th Cir. 1999) . . . . . . . . . . . . . . . 19

United States v. Hubenka,

438 F.3d 1026 (10th Cir. 2006) . . . . . . . . . . . . . . 19

United States v. Plaza Health Labs., Inc.,

3 F.3d 6443 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . 19

Upstate Forever v. Kinder Morgan Energy

Partners, L.P., 887 F.3d 637 (4th Cir.),

cert. petition docketed, No. 18-268

(U.S. Sept. 4, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 1

vi

Page(s)

Utility Air Reg. Group v. EPA [“UARG”],

573 U.S. 302 (2014) . . . . . . . . . . . . . . . . 1, 7, 21, 22

Village of Oconomowoc Lake v. Dayton Hudson

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

Yates v. United States,

135 S. Ct. 1074 (2015) . . . . . . . . . . . . . . . . . . . 7, 18

Statutes and Regulations:

Clean Water Act, 33 U.S.C. § 1251, et seq. . . . passim

33 U.S.C. § 1251(b) . . . . . . . . . . . . . . . . . . 8, 23

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

33 U.S.C. § 1319(c)(1) . . . . . . . . . . . . . . . . 7, 19

33 U.S.C. § 1319(c)(2) . . . . . . . . . . . . . . . . . . 19

33 U.S.C. § 1329(b) . . . . . . . . . . . . . . . . . . . . 13

33 U.S.C. § 1342(a)(1) . . . . . . . . . . . . . . . . 4, 11

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

33 U.S.C. § 1362(12) . . . . . . . . . . . . . . . passim

33 U.S.C. § 1362(14) . . . . . . . . . . . . . . . . . . 5, 9

33 U.S.C. § 1365 . . . . . . . . . . . . . . . . . . . . . . 23

33 U.S.C. § 1365(a)(1) . . . . . . . . . . . . . . . . . . . 3

Resource Conservation and Recovery Act (RCRA),

42 U.S.C. §§ 6901, et seq. . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 6902 . . . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 6903(27) . . . . . . . . . . . . . . . . . . . 14

Safe Drinking Water Act,

42 U.S.C. §§ 300f, et seq. . . . . . . . . . . . . . . . . . . . 13

40 C.F.R. § 122.2

.......................... 9

vii

Miscellaneous:

Page(s)

EPA, Interpretive Statement on Application

of the Clean Water Act NPDES Program to

Releases of Pollutants From a Point Source

to Groundwater [“Interpretive Statement”],

84 Fed. Reg. 16810 (April 23, 2019) . 11, 17, 20, 24

INTERESTS OF AMICI CURIAE

The Washington Legal Foundation (WLF) is a

public-interest law firm and policy center with

supporters in all 50 States.1 WLF promotes and

defends free enterprise, individual rights, a limited and

accountable government, and the rule of law.

WLF has regularly appeared before this and

other federal courts in cases involving claims arising

under the Clean Water Act (CWA), 33 U.S.C. § 1251, et

seq., and other federal environmental statutes. See,

e.g., Utility Air Reg. Group v. EPA, 573 U.S. 302 (2014)

[“UARG”]; American Farm Bureau Fed. v. EPA, 792

F.3d 281 (3d Cir. 2015); Murray Energy Corp. v. Dep’t

of Defense, dism’d, 713 Fed. Appx. 489 (6th Cir. 2018).

The Allied Educational Foundation (AEF) is a

nonprofit charitable and educational foundation based

in Tenafly, New Jersey. Founded in 1964, AEF is

dedicated to promoting education in diverse areas of

study, such as law and public policy, and has appeared

as amicus curiae in this Court on a number of

occasions.

The decision below and a similar decision from

the Fourth Circuit2 significantly expanded previously

1

Pursuant to Supreme Court Rule 37.6, WLF states that

no counsel for a party authored this brief in whole or in part; and

that no person or entity, other than WLF and its counsel, made a

monetary contribution intended to fund the preparation and

submission of this brief. All parties have consented to the filing.

2

Upstate Forever v. Kinder Morgan Energy Partners, L.P.,

887 F.3d 637 (4th Cir.), cert. petition docketed, No. 18-268 (U.S.

Sept. 4, 2018).

2

recognized limits on CWA permitting requirements.

Those courts held that, in many instances, releases of

pollutants into groundwater are prohibited by the CWA

in the absence of a permit issued under the National

Pollutant Discharge Elimination System (NPDES)

program. Amici believe that the decisions badly

misread applicable CWA provisions.

More importantly, amici are concerned that the

decisions place regulated entities in an untenable

situation. Under the Ninth Circuit’s new standard,

they cannot determine in advance whether their

groundwater releases require an NPDES permit, yet

they face large monetary sanctions and even criminal

penalties if a court later determines that they failed to

obtain necessary permits in advance of the discharges.

Congress cannot reasonably be understood to have

adopted a statutory scheme that places such an unfair

burden on regulated entities.

STATEMENT OF THE CASE

Since the early 1980s, Petitioner County of Maui

has operated a wastewater treatment plant that

processes several million gallons of sewage per day

from about 40,000 people living in the western portion

of the Island of Maui. Maui injects much of the treated

effluent into four wells, from which the effluent

migrates into groundwater. A 2013 tracer-dye study

determined that a majority of the effluent eventually

flows into the Pacific Ocean over an estimated two

miles of coastline. That migration process generally

takes more than a year, during which time the

chemical composition of the effluent changes

considerably.

3

Throughout the decades that the plant has

operated, Maui has never sought an NPDES permit for

its well injections, nor has any government agency

stated that the CWA required a permit. Both EPA and

Hawaii administer programs designed to prevent

underground injection control (UIC) wells from

contaminating underground sources of drinking water.

Maui’s well injections have complied at all times with

the permits issued to it under those programs.

The CWA authorizes “any citizen” to file a civil

action against “any person” (including a governmental

agency) alleged to be in violation of “an effluent

standard or limitation” imposed by the CWA. 33

U.S.C. § 1365(a)(1). Respondents Hawai‘i Wildlife

Fund, et al., filed a citizen suit against Maui in 2012,

alleging that the CWA prohibited Maui from injecting

effluent into its wells without an NPDES permit. The

district court granted summary judgment to

Respondents, concluding that Maui violated the CWA

by “indirectly discharg[ing] a pollutant into the ocean

through a groundwater conduit.” Pet. App. 56.

The Ninth Circuit affirmed. Pet. App. 1-31. The

appeals court concluded that Maui’s well injections

constituted discharges of pollutants “to navigable

waters” (the Pacific Ocean) “from [a] point source” (the

wells), id. at 12-13 (quoting 33 U.S.C. § 1362(12)), and

thus were prohibited under § 1311(a) in the absence of

an NPDES permit. Id. at 13. It rejected Maui’s

contention that the CWA applies only to pollutants

“discharged ‘directly’ to navigable waters from a point

source,” stating that the CWA’s definition of the phrase

“discharge of a pollutant” (§ 1362(12)) does not include

the word “directly.” Id. at 23.

4

The Ninth Circuit established a three-part

standard for determining whether releases of

pollutants into ground water are regulated by the CWA

and held that Maui was liable under that standard

because:

(1) the County discharged pollutants from

a point source, (2) the pollutants are

fairly traceable from the point source to a

navigable water such that the discharge

is the functional equivalent of a discharge

into the navigable waters, and (3) the

pollutant levels reaching the navigable

waters are more than de minimis.

Pet. App. 24. The appeals court provided no guidance

regarding what evidence is sufficient to demonstrate

that pollutants are “fairly traceable” from the point

source to a navigable water, or when pollution levels

are sufficiently low to be classified as “de minimis.”

Indeed, it explicitly deferred addressing those issues:

“We leave for another day the task of determining

when, if ever, the connection between a point source

and a navigable water is too tenuous to support

liability under the CWA.” Id. at 25.

SUMMARY OF ARGUMENT

Congress passed the CWA in 1972 to prohibit all

unpermitted discharges of pollutants into navigable

waters. 33 U.S.C. §§ 1311(a), 1342(a)(1). But by

carefully defining what constitutes a “discharge of a

pollutant,” the CWA makes clear that Congress did not

intend to address all potential sources of water

pollution. Rather, the CWA differentiates between

5

pollutants added “to navigable waters from [a] point

source” and those not added from a point source; only

the former are subject to § 1311(a)’s prohibition.

The text, structure, and purposes of the CWA all

support Maui’s contention that the migration of

effluent from its wells, through groundwater, and into

the Pacific Ocean does not constitute point-source

pollution of the sort subject to CWA regulation. That

contention is most clearly demonstrated by the CWA’s

definition of a “point source,” 33 U.S.C. § 1362(14). A

“point source” is a “discernable, confined and discrete

conveyance”; i.e., it conveys a pollutant. But Maui’s

effluent is not conveyed to the Pacific Ocean by means

of a discernable, confined and discrete conveyance.

Rather it reaches the ocean only after meandering for

more than a year through groundwater, which is

anything but a “confined and discrete conveyance.”

True, Maui’s wells meet the definition of a “point

source.” But that alone is not enough to constitute the

“discharge” of pollutants “to navigable waters” from a

point source or point sources, when the pollutants are

ultimately conveyed to navigable waters “from” a

source (such as groundwater) that does not meet the

statutory definition of “a point source.” If it were

otherwise, the limiting function of the “point source”

requirement would be largely obliterated. That is so

because virtually all pollutants that reach navigable

waters have at some point passed through a “point

source” (e.g., spray from a garden hose, chlorinated

water leaking from a water main). Under the Ninth

Circuit’s interpretation of § 33 U.S.C. § 1362(12), all

such activity would constitute an “addition of [a]

pollutant to navigable waters from any point source,”

6

no matter that the pollutant is not actually conveyed to

navigable waters by means of point sources.

Apparently recognizing the vast regulatory

expansion implied by its statutory construction, the

Ninth Circuit sought to limit its ruling somewhat by

imposing several atextual conditions: the pollutant

must be “fairly traceable” from the initial point source

to a navigable water, and the level of pollutants

reaching a navigable water must be more than “de

minimis.” Pet. App. 24. But the Ninth Circuit made

no effort to define those inherently vague terms,

leaving regulated entities with no method of discerning

when they are required to seek CWA permits.

The problem is not simply that the requisite

level of traceability remains undefined. A more serious

problem is the near impossibility of discovering in

advance how pollutants released into groundwater are

likely to migrate.

For example, municipalities

developing plans to construct waste disposal facilities

routinely appropriate millions of dollars without the

means of determining in advance whether, and how

much of, the effluent they plan to inject into wells may

eventually migrate into navigable waters. Yet under

the Ninth Circuit’s interpretation of the CWA, those

municipalities could face massive expenditures

(including civil and criminal liability) if a nonnegligible level of pollutants later discovered in a

navigable water is traced back to their disposal

facilities. It is highly improbable that Congress

adopted legislation that creates such traps for

regulated entities operating in good faith.

Moreover, the rule of lenity applies to any

7

ambiguity in the CWA’s definition of “discharge of a

pollutant.” 33 U.S.C. § 1362(12). Even “negligent”

violations of the CWA’s discharge provisions are

punishable under the criminal law with prison

sentences of up to a year and fines of up to $25,000 per

day. 33 U.S.C. § 1319(c)(1). The rule of lenity requires

that ambiguities in penal statutes such as the CWA

“should be resolved in favor of lenity.” Yates v. United

States, 135 S. Ct. 1074, 1088 (2015). The rule applies

regardless whether the CWA is being enforced in a civil

or a criminal context because it is a “fundamental

rule[ ] of statutory construction” that “a statutory

phrase must have a fixed meaning.”

Cochise

Consultancy, Inc. v. United States ex rel. Hunt, ___ U.S.

___, 2019 WL 2078068, at *4 (May 13, 2019). That rule

of construction requires “avoid[ing] interpretations that

would ascribe different meanings” to § 1362(12)

depending on the context in which the statute arises.

Ibid. Because Maui’s interpretation of § 1362(12) is (at

the very least) a plausible construction of an arguably

ambiguous penal statute (as evidenced by its adoption

by several federal appeals courts), the rule of lenity

requires acceptance of Maui’s interpretation.

The Ninth Circuit’s expansive interpretation of

the CWA should also be rejected because it is

inconsistent with this Court’s “clear statement” test.

If, as the Ninth Circuit held, the CWA imposes strict

federal controls on releases into groundwater, that

would represent both a vast expansion of federal

regulations and a significant encroachment upon a

traditional state power. This Court has repeatedly

held it will not interpret a statute as having such a

sweeping scope without a clear indication in the

statute that Congress intended that result. UARG, 573

8

U.S. at 324; Rapanos v. United States, 547 U.S. 715,

738 (2001) (plurality). The CWA contains no such

indication. To the contrary, in adopting the CWA,

Congress explicitly recognized States’ “primary” role in

addressing water-resource issues. 33 U.S.C. § 1251(b).

In the absence of any clear indication that Congress

intended, through its adoption of the CWA, to displace

States’ primary role in regulating groundwater, the

Court should decline to interpret the CWA in the

expansive manner urged by Respondents.

ARGUMENT

I.

PETITIONER’S GROUNDWATER INJECTIONS ARE

NOT SUBJECT TO CWA PERMITTING BECAUSE

ITS EFFLUENTS ARE NOT CONVEYED TO

NAVIGABLE WATERS BY POINT SOURCES

The material facts of this case are largely

undisputed. For several decades, Maui has been

injecting effluent from a wastewater treatment facility

into four wells, from which the effluent reaches

groundwater. A 2013 tracer-dye study determined that

a majority of the effluent eventually passes through the

groundwater and enters the Pacific Ocean over an

estimated two miles of coastline.

Under those

circumstances, Maui’s injections are not subject to

CWA permitting requirements because they are not

additions “to navigable waters from any point source”

or “to the waters of the contiguous zone or the ocean

from any point source,” within the meaning of 33

U.S.C. § 1362(12).

The court below “assume[d] without deciding the

groundwater here is neither a point source nor a

9

navigable water under the CWA.” Pet. App. 16 n.2.

The Ninth Circuit’s assumptions are correct. The CWA

defines a “point source” as:

any discernable, confined and discrete

conveyance, including but not limited to

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. This term does not include

agricultural stormwater discharges and

return flows from irrigated agriculture.

33 U.S.C. § 1362(14). Groundwater cannot plausibly be

included within that definition because it is not a

“discernable, confined and discrete conveyance,” nor is

it similar to any of the objects (e.g., pipes or ditches)

enumerated in the statute. Indeed, every federal

appeals court that has addressed the issue has

concluded that groundwater is not a CWA “point

source.” See, e.g., Kentucky Waterways Alliance v.

Kentucky Utilities Co., 905 F.3d 925, 933 (6th Cir.

2018) (“By its very nature, groundwater is a diffuse

medium that seeps in all directions, guided only by the

pull of gravity.”); Sierra Club v. Virginia Electric &

Power Co., 903 F.3d 403, 411 (4th Cir. 2018).

Nor is groundwater included within the

“navigable water” and “waters of the United States”

protected by the CWA. Indeed, longstanding EPA

regulations explicitly exclude “groundwater” from the

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

§ 122.2. The federal appeals courts agree. See, e.g.,

10

Village of Oconomowoc Lake v. Dayton Hudson Corp.,

24 F.3d 962, 965 (7th Cir. 1994); Rice v. Harken

Exploration Co., 250 F.3d 264, 269-70 (5th Cir. 2001).

Thus, the Ninth Circuit’s ruling depends entirely

on its interpretation of § 1362(12), which defines a

“discharge of a pollutant” as “(A) any addition of any

pollutant to navigable waters from any point source,

(B) 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.” Although

conceding that Maui’s effluent reaches the Pacific

Ocean through a medium (groundwater) that is not

itself a CWA “point source,” the Ninth Circuit held that

such “indirect discharges” from a point source (the

wells) are nonetheless sufficient to meet the statutory

requirement that the addition of pollutants to the

ocean be “from [a] point source.” Pet. App. 16-25.

That holding misreads the CWA. Indeed, the

text, structure, and purposes of the CWA all support

Maui’s contention that the migration of effluent from

its wells, through groundwater, and into the Pacific

Ocean does not constitute point-source pollution of the

sort subject to CWA regulation.

A.

Releasing

a

Pollutant

into

Groundwater Is Not an “Addition” of

a Pollutant “to Navigable Waters

from Any Point Source” within the

Meaning of the CWA

Maui’s opening brief cogently explains why its

conduct does not constitute the “discharge of a

pollutant” subject to the CWA permitting requirements

11

established by 33 U.S.C. §§ 1311(a) and 1342(a). Amici

will not repeat each of those arguments here. Rather,

we limit our discussion to several points that warrant

particular attention.

The CWA Targets Measurable Discharges.

The CWA protects the cleanliness of navigable waters

through a permitting scheme that specifies numerical

limits on the quantity of pollutants that a permit

holder may add to the navigable waters. The NPDES

program focuses on “effluent limitation,” defined as a

restriction on “the quantities, rates, and

concentrations” of pollutants discharged into navigable

waters.” 33 U.S.C. § 1362(11). Whether a regulated

entity is complying with those restrictions can be

determined by measuring discharges at the point

source.

But no such measurement is practicable if, as

here, the alleged “discharge of pollutants” is occurring

at locations far removed (in both distance and time)

from the release into groundwater at the regulated

entity’s point source. Measurements taken at the point

source would not accurately reflect the extent of

pollutants being added to navigable waters because: (1)

only some not-yet-determined percentage of pollutants

released at the point source will actually enter

navigable waters; and (2) the chemical composition of

any pollutants entering the navigable waters will have

changed considerably during the months or years likely

to have elapsed while the pollutants meander through

groundwater. See EPA, Interpretive Statement on

Application of the Clean Water Act NPDES Program to

Releases of Pollutants From a Point Source to

Groundwater [“Interpretive Statement”], 84 Fed. Reg.

12

16810, 16812 (April 23, 2019) (“[T]he travel time and

distance between polluted groundwater and surface

water can allow for the reduction of the impacts of

contamination on the surface water due to natural

processes.”).

The impracticability of such measurements

when pollutants enter the navigable waters via

groundwater is a strong indication that the CWA’s

NPDES permitting system does not cover groundwater

releases. See Kentucky Waterways, 905 F.3d at 934-35

& n.8. By limiting § 1311(a)’s discharge restrictions to

pollutants that are “convey[ed]” to navigable waters by

one or more point sources, the CWA makes clear that

the restrictions apply only to discharges capable of

being quantified. Sierra Club, 903 F.3d at 411 (“In

regulating discharges of pollutants from point sources,

Congress clearly intended to target the measurable

discharge of pollutants.”) (emphasis in original).

Ecological Considerations Do Not Trump

Statutory Text and Structure. Respondents contend

(and Maui vigorously disputes) that Maui’s

groundwater releases are damaging coral reefs and

other aspects of the Pacific Ocean environment. Those

factual disputes are irrelevant to the statutoryconstruction issue before the Court, in the absence of

any ambiguity regarding whether § 1311(a)’s

restrictions apply to groundwater releases. Solid

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

Corps of Engineers, 531 U.S. 159, 167, 171 (2001)

(holding that Army Corps’s desire to protect the habitat

of migratory birds did not justify its efforts to expand

CWA coverage to include isolated waters); Rapanos,

547 U.S. at 741-42 (plurality) (evidence that placing fill

13

on wetlands not adjacent to navigable waters might

have a negative ecological impact was irrelevant to

issue of whether the CWA authorized Army Corps to

regulate those wetlands).

Moreover, a finding that CWA § 1311(a) does not

regulate groundwater releases does not mean that such

releases are exempt from government regulation and

thus that ecological concerns could be overlooked.

Maui’s well injections are subject to permitting

requirements imposed by both the federal Safe

Drinking Water Act, 42 U.S.C. §§ 300f, et seq., and

Hawaii state law. Although § 1311(a)’s restrictions

apply only to point-source discharges, the CWA also

directs that each State adopt federally approved

programs “for controlling pollution added from

nonpoint sources to the navigable waters within the

State and improving the quality of such waters.” 33

U.S.C. § 1329(b). Hawaii has adopted such a program,

which continues to examine any impact of Maui’s

groundwater releases on the Pacific Ocean. As the

Fourth Circuit has recognized, simply because a water

quality issue falls outside the scope of § 1311(a)’s

restrictions “does not mean that it slips through the

regulatory cracks.” Sierra Club, 903 F.3d at 411.

Another federal law that restricts groundwater

releases is the Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. §§ 6901, et seq. RCRA regulates

the management of hazardous solid waste. Indeed, the

Sixth Circuit based its holding that the CWA does not

regulate groundwater pollution in substantial part on

its conclusion that a contrary holding would undercut

RCRA’s regulation of hazardous wastes:

14

Reading the CWA to cover groundwater

pollution like that at issue in this case

[involving coal ash] would upend the

existing regulatory framework. RCRA

explicitly exempts from its coverage any

pollution that is subject to CWA

regulation. 42 U.S.C. § 6903(27). In that

way, RCRA and the CWA are mutually

exclusive—if certain conduct is regulated

under the CWA and requires an NPDES

permit, RCRA does not apply. Were we to

read the CWA to cover [Respondent’s]

conduct here, [Respondent’s] coal ash

treatment and storage practices would be

exempt from RCRA’s coverage. But coal

ash is solid waste, and RCRA is

specifically designed to cover solid waste.

See id. § 6902(a)(1). Reading the CWA so

as to remove solid waste management

practices from RCRA’s coverage is thus

problematic.

Kentucky Waterways, 905 F.3d at 937-38.

The Ninth Circuit’s “De Minimis” Rule

Should Be Applied in Reverse. Amici do not suggest

that a polluter can evade § 1311(a) discharge

restrictions by minutely altering its discharges. For

example, as Maui points out, § 1311(a) still applies

even if the end of a polluter’s pipe (a point source) is

removed from a navigable water and placed at a

location several feet above the water—so that

pollutants emitted from the pipe fall through several

feet of air before entering the navigable water. Pet.

Brief 53. Under those circumstances, all of the

15

pollutant released by the point source(s) is discharged

“to navigable waters,” and any intervening step is

negligible.

The Ninth Circuit created a de minimis

exception to its groundwater standard: pollutants

“fairly traceable from the point source to a navigable

water” are not subject to NPDES permitting

requirements if “pollutant levels reaching the

navigable waters are ... de minimis.” Pet. App. 24.

Amici submit that a de minimis standard is

appropriate, but it should be the precise opposite of the

one adopted by the Ninth Circuit. Releases of

pollutants are not subject to the NPDES permitting

requirements unless the pollutants are “convey[ed]” to

navigable water by a point source or a series of point

sources, but the permitting requirements apply even if

there is a de minimis gap between the point source

discharge and the entry of the pollutant into navigable

water.

B.

The Lower Court’s Interpretation of

the CWA Is Implausible Because Its

“Fairly Traceable” Standard Is Vague

and Prevents Entities from

Determining in Advance when CWA

Permits Are Required

Question 2 in Maui’s certiorari petition sought

review of its claim that the judgment violated its Fifth

Amendment due-process rights because the CWA, as

interpreted by the lower courts, is overly vague and did

not provide fair notice that Maui was required to

obtain an NPDES permit. Pet. 36-39. The Court

denied review of Question 2.

16

But while Maui’s due-process defense is not now

before the Court, its assertion that the Ninth Circuit’s

CWA liability standard is overly vague remains highly

relevant. Maui is correct that, as interpreted by the

Ninth Circuit, the CWA fails to provide regulated

entities with a method for discerning when they are

required to seek CWA permits. That failure counsels

strongly against affirmance of the Ninth Circuit’s

interpretation because Congress is highly unlikely to

have adopted a statute that creates such traps for

regulated entities operating in good faith.

The Ninth Circuit held that a NPDES permit is

required whenever non-negligible levels of pollutants

present in navigable water are “fairly traceable” to a

regulated entity’s releases from a point

source—without regard to how the releases were

conveyed to navigable water. Pet. App. 24. The

inherent vagueness of that standard extends far

beyond the Ninth Circuit’s failure to define the

requisite level of traceability and to “determin[e] when,

if ever, the connection between a point source and a

navigable water is too tenuous to support liability

under the CWA.” Id. at 25.

A more serious problem is the backward-looking

nature of the Ninth Circuit’s standard.

The

requirement to obtain a pre-discharge NPDES permit

is imposed only after it is determined that pollutants

are present in the navigable water and are “fairly

traceable” to effluents released to groundwater many

months or years earlier. Such backward-looking

standards wreak havoc on the ability of local

governments to construct sewage-treatment facilities

and other projects designed to address environmental

17

issues.

Groundwater migration patterns vary

significantly depending on soil composition and other

geological factors, and thus it can be nearly impossible

to determine in advance the likelihood that pollutants

released to groundwater will eventually migrate to

navigable water. See EPA Interpretive Statement, 84

Fed. Reg. at 16812. So municipal planners must

commit the millions of dollars necessary to design and

construct wastewater disposal facilities without

knowing the ultimate fate of the effluent they plan to

inject into wells. Yet under the Ninth Circuit’s “fairly

traceable” standard, they can be held civilly and

criminally liable for failing to obtain a permit that they

did not know they needed when they constructed the

facility and authorized well injections. Moreover, they

cannot rely on assurances of federal and state

regulators that an NPDES permit is unnecessary,

because private individuals can bypass those

regulators by filing citizen suits under 33 U.S.C.

§ 1365. And in light of the decision below, and the

Fourth Circuit’s similar decision in Kinder Morgan, one

can reasonably expect an avalanche of citizen suits

against the operators of the hundreds of thousands of

injection wells across the Nation.

The Ninth Circuit’s “fairly traceable” standard

is akin to the “substantial nexus” standard espoused by

some as a basis for determining whether wetlands

should be classified as navigable waters under the

CWA. The Rapanos plurality rejected the “substantial

nexus” standard as an implausible construction of

relevant CWA provisions because it was “perfectly

opaque” and provided no guidance to regulated entities.

Rapanos, 547 U.S. at 756 n.15 (plurality) (noting the

difficulty in determining, under the substantial-nexus

18

standard, “[w]hen exactly does a wetland ‘significantly

affect’ covered waters, and when are its effects ‘in

contrast ... speculative or insubstantial’”) (citations

omitted). The Court should reject the Ninth Circuit’s

atextual “fairly traceable” test for similar reasons. It

is not plausible that Congress intended to adopt such

a vague standard that provides little or no notice

regarding when those engaged in groundwater releases

must obtain NPDES permits.

C.

The Rule of Lenity Requires that Any

Statutory Ambiguities Be Resolved in

Petitioner’s Favor

For all the reasons explained by Maui in its

opening brief, the CWA unambiguously provides that

groundwater injections are not subject to CWA

permitting requirements because pollutants’ passage

through groundwater (not a point source) breaks the

necessary link between the initial point-source

discharge and any subsequent addition of a pollutant

to navigable water. But even if the Court concludes

that the CWA is ambiguous on that issue, it should

uphold Maui’s position based on the rule of lenity.

The Court has long adhered to “the rule that

ambiguity concerning the ambit of criminal statutes

should be resolved in favor of lenity.” Yates, 135 S. Ct.

at 1088 (citations omitted). Application of the rule of

lenity “ensures that criminal statutes will provide fair

warning concerning conduct rendered illegal and

strikes the appropriate balance between the

legislature, the prosecutor, and the court in defining

criminal liability.” Liparota v. United States, 471 U.S.

419, 427 (1985).

19

The CWA unquestionably qualifies as a criminal

statute. Mere “negligent” violations of the CWA’s

discharge provisions are punishable under the criminal

law with prison sentences of up to a year and fines of

up to $25,000 per day. 33 U.S.C. § 1319(c)(1).

“Knowing” violations carry fines of up to $100,000 per

day and six years’ imprisonment. 33 U.S.C.

§ 1319(c)(2). Criminal prosecutions for CWA permit

violations are not uncommon. See, e.g., United States

v. Hubenka, 438 F.3d 1026 (10th Cir. 2006); United

States v. Agosto-Vega, 617 F.3d 541 (1st Cir. 2010);

United States v. Hanousek, 176 F.3d 1116 (9th Cir.

1999). In at least one case, the Second Circuit applied

the rule of lenity to construe an ambiguous CWA

provision in the defendant’s favor and thereby overturn

his criminal conviction for discharging pollutants from

a point source without a permit. United States v. Plaza

Health Labs., Inc., 3 F.3d 643 (2d Cir. 1993).

Nor is it relevant, for purposes of applying the

rule of lenity, that this case arises in a civil context.

When a statute “has both criminal and noncriminal

applications,” the rule of lenity applies regardless

“whether we encounter its application in a criminal or

noncriminal context”—because the Court “must

interpret the statute consistently.” Leocal v. Ashcroft,

543 U.S. 1, 11 n.8 (2004). It is a “fundamental rule[ ]

of statutory construction” that “a statutory phrase

must have a fixed meaning.” Cochise Consultancy,

2019 WL 2078068, at *4. That rule of construction

requires “avoid[ing] interpretations that would ascribe

different meanings” to § 1362(12) depending on the

context in which the statute arises. Ibid.

Maui’s well injections are not subject to CWA

20

permitting requirements unless they qualify, under

§ 1362(12), as an “addition of any pollutant to

navigable waters from any point source.” Maui’s brief

has amply demonstrated that its well injections are not

added “to navigable waters from a point source.” But

even if the Court were to determine that § 1362(12) is

ambiguous on this point, the rule of lenity mandates

that the ambiguity be resolved in Maui’s favor.

II.

CONGRESS DOES NOT AUTHORIZE

SUBSTANTIALLY EXPANDED FEDERAL

REGULATION OF MATTERS TRADITIONALLY

REGULATED BY THE STATES WHEN, AS HERE,

THE RELEVANT STATUTE INCLUDES NO CLEAR

STATEMENT TO THAT EFFECT

The Ninth Circuit’s expansive interpretation of

the CWA should also be rejected because it is

inconsistent with this Court’s “clear statement” test.

If, as the Ninth Circuit held, the CWA imposes strict

federal controls on releases into groundwater, that

would represent both a vast expansion of federal

regulations and a significant encroachment upon a

traditional state power.

After comprehensively reviewing the issue, EPA

has concluded that “the text, structure, and legislative

history of the CWA demonstrate Congress’s intent to

leave the regulation of groundwater wholly to the

states under the Act.” EPA Interpretive Statement, 84

Fed. Reg. at 16813. The decision below would reverse

that determination; it would expand federal power to

encompass regulatory authority over the millions of

releases of pollutants annually into groundwater. Yet

no language in the CWA even hints at an intent to

21

authorize such regulation; the CWA expressly

references discharges into “navigable waters,” “waters

in the contiguous zone,” and “the ocean,” 33 U.S.C.

§ 1362(12), but it is silent as to discharges into

groundwater.

In several significant environmental-law cases,

the Court has applied a clear-statement rule of

statutory construction, under which it rejects

interpretations that would significantly expand the

scope of federal regulation and impinge on areas

traditionally regulated by the States, in the absence of

a clear indication in the statute that Congress intended

the expansion. In UARG, the Court rejected EPA’s

expansive interpretation of its Clean Air Act powers to

regulate greenhouse-gas emissions, explaining:

EPA’s interpretation is also unreasonable

because it would bring about an

enormous and transformative expansion

in EPA’s regulatory authority without

clear congressional authorization. When

an agency claims to discover in a longextent statute an unheralded power to

regulate a significant portion of the

American economy, ...we typically greet

its announcement with a measure of

skepticism. We expect Congress to speak

clearly if it wishes to assign to an agency

decisions of vast economic and political

significance. ... The power to require

permits for the construction and

modification of tens of thousands, and the

operation of millions, of small sources

nationwide falls comfortably within the

22

class of authorizations that we have been

reluctant to read into ambiguous

statutory text.

573 U.S. at 324.

The Court rejected similarly expansive Army

Corps interpretations of the CWA in both SWANCC

and Rapanos, applying a clear-statement rule and

noting in particular that the rejected interpretations

seriously impinged on land-use authority traditionally

exercised by state and local governments:

As we noted in SWANCC, the

Government’s expansive interpretation

would “result in a significant

impingement of the States’ traditional

and primary power over land and water

use.” 531 U.S., at 174. Regulation of

land use, as through the issuance of the

development permits sought by

petitioners in both of these cases, is a

quintessential state and local power. ...

We ordinarily expect a clear and manifest

statement from Congress to authorize an

unprecedented intrusion into traditional

state authority. ... The phrase “the waters

of the United States” hardly qualifies.

Rapanos, 547 U.S. at 737-38 (plurality) (citations

omitted).

The expansion of CWA authority wrought by the

Ninth Circuit’s decision cannot be overstated. The

court held that whenever a more-than-negligible level

23

of a pollutant released from a point source reaches a

navigable water, the entity that released the pollutant

can be held liable under the CWA without regard to

how the pollutant reached the navigable water. Left

unstated by the Ninth Circuit is that virtually all

pollutants at some point in time are channeled through

a point source. For example, homeowners release

chemicals onto their lawns through a hose and release

wastes into the ground through their septic systems.

Municipal water systems release chlorinated water

into the ground through leaks in their pipes. Although

the Ninth Circuit suggests that surface runoff is not

subject to NPDES permitting requirements, the Ninth

Circuit’s standard belies that suggestion—much of the

surface runoff likely at some time passed through a

point source. Under the Ninth Circuit’s expansive

definition of “discharge of a pollutant,” all an

enterprising plaintiffs’ lawyer need do to bring a

successful (and generally lucrative) citizen suit under

33 U.S.C. § 1365 is to trace pollutants discovered in a

navigable water to some point source, no matter how

distant in space and time.

The vastly expanded scope of CWA jurisdiction

espoused by the Ninth Circuit comes at the expense of

state regulators. That expansion is inconsistent with

one of the CWA’s stated purposes: “It is the policy of

the Congress to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution, to plan the

development and use (including restoration,

preservation, and enhancement) of land and water

resources, ...” 33 U.S.C. § 1251(b). In particular, as

EPA has recognized, “Congress purposely structured

the CWA to give states the responsibility to regulate

24

[groundwater] releases under state authorities.” EPA

Interpretive Statement at 16811.

In the absence of any clear indication that

Congress intended, through its adoption of the CWA, to

displace States’ primary role in regulating

groundwater, the Court should decline to interpret the

CWA in the expansive manner urged by Respondents.

CONCLUSION

The Court should reverse the judgment below.

Respectfully submitted,

Richard A. Samp

(Counsel of Record)

Marc B. Robertson

Washington Legal

Foundation

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

rsamp@wlf.org

Dated: May 16, 2019