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

No. 18-260

In the Supreme Court of the United States

COUNTY OF MAUI, HAWAII, PETITIONER

v.

HAWAII WILDLIFE FUND, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

MATTHEW Z. LEOPOLD

General Counsel

DAVID FOTOUHI

Principal Deputy General

Counsel

LAUREN T. MAHER

Attorney

U.S. Environmental

Protection Agency

Washington, D.C. 20460

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

MALCOLM L. STEWART

Deputy Solicitor General

ERIC GRANT

Deputy Assistant Attorney

General

ALLON KEDEM

Assistant to the Solicitor

General

DAVID S. GUALTIERI

Senior Counsel

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a “discharge of a pollutant,” 33 U.S.C.

1362(12), occurs when a pollutant is released from a

point source, travels through groundwater, and ultimately migrates to navigable waters.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statutory provisions involved ...................................................... 2

Statement ...................................................................................... 2

Summary of argument ................................................................. 9

Argument:

Under the Clean Water Act, a release of pollutants to

groundwater is not subject to NPDES requirements,

even if the pollutants subsequently migrate to

jurisdictional surface waters................................................. 12

A. The NPDES regime protects only surface

waters and does not regulate releases of

pollutants to groundwater ....................................... 13

B. The release of a pollutant to groundwater is not

a “discharge of a pollutant” under Section 1311,

even if the pollutant eventually migrates to

jurisdictional surface waters ................................... 19

C. This Court need not address the application of

the NPDES program to circumstances where

pollutants do not travel through groundwater ...... 33

Conclusion ................................................................................... 35

Appendix — Statutory provisions ........................................... 1a

TABLE OF AUTHORITIES

Cases:

Arkansas v. Oklahoma, 503 U.S. 91 (1992)........................... 3

CSX Transp., Inc. v. McBride, 564 U.S. 685 (2011) ........... 23

Concerned Area Residents for the Env’t v. Southview

Farm, 34 F.3d 114 (2d Cir. 1994), cert. denied,

514 U.S. 1082 (1995)............................................................ 22

EPA v. California ex rel. Water Res. Control Bd.,

426 U.S. 200 (1976).............................................................. 14

(III)

IV

Cases—Continued:

Page

Exxon Corp. v. Train, 554 F.2d 1310

(5th Cir. 1977) .......................................................... 16, 17, 18

Holmes v. Securities Investor Prot. Corp.,

503 U.S. 258 (1992).............................................................. 24

Kentucky Waterways Alliance v. Kentucky Utils.

Co., 905 F.3d 925 (6th Cir. 2018) ....................................... 23

Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) .................... 31

Rapanos v. United States, 547 U.S. 715

(2006) ...........................................................4, 5, 10, 20, 21, 22

Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133 (10th Cir. 2005), cert. denied,

547 U.S. 1065 (2006)............................................................ 22

Solid Waste Agency of N. Cook Cnty. v. Army Corps

of Eng’rs, 531 U.S. 159 (2001) ...................................... 15, 25

Tennessee Clean Water Network v. Tennessee Valley

Auth., 905 F.3d 436 (6th Cir. 2018),

petition for cert. pending, No. 18-1307

(filed Apr. 15, 2019) ............................................................. 23

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985).............................................................. 14

United States v. Velsicol Chem. Corp.,

438 F. Supp. 945 (W.D. Tenn. 1976) .................................. 22

Upstate Forever v. Kinder Morgan Energy

Partners, L.P., 887 F.3d 637 (2018),

petition for cert. pending, No. 18-268

(filed Aug. 28, 2018) ............................................................ 23

Utility Air Regulatory Grp. v. EPA, 573 U.S. 302

(2014) .............................................................................. 24, 25

Village of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962 (7th Cir.), cert. denied,

513 U.S. 930 (1994).............................................................. 26

V

Treaty, statutes, and regulations:

Page

Convention on the Territorial Sea and the

Contiguous Zone art. 24, opened for signature

Apr. 29, 1958, 15 U.S.T. 1612-1613,

516 U.N.T.S. 220, 222 (entered into force

Sept. 10, 1964) ..................................................................... 14

Clean Water Act, 33 U.S.C. 1251 et seq. ................................ 1

Tit. I .................................................................................. 16

33 U.S.C. 1251(a) ......................................................... 2

33 U.S.C. 1251(b) ......................................................... 2

33 U.S.C. 1251(d) ......................................................... 1

33 U.S.C. 1252(a) ................................................. 16, 17

33 U.S.C. 1254(a)(5) ................................................... 17

Tit. II ................................................................................ 17

33 U.S.C. 1282(b)(2) ................................................... 17

33 U.S.C. 1288(a) ................................................. 10, 18

33 U.S.C. 1288(b)(2)(F) ............................................... 2

33 U.S.C. 1288(b)(2)(G) ............................................. 18

33 U.S.C. 1288(b)(2)(K) ............................................. 18

Tit. III............................................................................... 17

33 U.S.C. 1311 ................................................ 19, 21, 34

33 U.S.C. 1311(a) ....................................2, 9, 12, 13, 1a

33 U.S.C. 1311(b) ....................................................... 14

33 U.S.C. 1311(d) ....................................................... 14

33 U.S.C. 1311(e) ....................................................... 14

33 U.S.C. 1314(a)(1)(A) ............................................. 17

33 U.S.C. 1314(a)(2)(A) ....................................... 17, 18

33 U.S.C. 1314(g)(1) ................................................... 14

33 U.S.C. 1319 .............................................................. 3

33 U.S.C. 1329 .............................................................. 3

33 U.S.C. 1329(h)(5)(D) ....................................... 10, 19

33 U.S.C. 1329(i)(1) .................................................... 19

VI

Statutes and regulations—Continued:

Page

Tit. IV ............................................................................... 26

33 U.S.C. 1342(a) ................................................... 3, 1a

33 U.S.C. 1342(b) ............................................... 1, 3, 3a

33 U.S.C. 1342(b)(1)(D) ................................. 16, 28, 4a

33 U.S.C. 1342(d) ......................................................... 3

33 U.S.C. 1344 .............................................................. 3

Tit. V:

33 U.S.C. 1362(7) ....................................... 2, 13, 14, 7a

33 U.S.C. 1362(8) ............................................. 2, 14, 7a

33 U.S.C. 1362(9) ........................................... 13, 14, 8a

33 U.S.C. 1362(10) ............................................... 13, 8a

33 U.S.C. 1362(11) ............................................... 14, 8a

33 U.S.C. 1362(12) ..................................... 3, 15, 27, 8a

33 U.S.C. 1362(12)(A) .......................7, 9, 12, 13, 24, 8a

33 U.S.C. 1362(12)(A)-(B) ..................................... 2, 8a

33 U.S.C. 1362(12)(B) ............................................ 9, 13

33 U.S.C. 1362(14) ....................................................... 2

33 U.S.C. 1365 .............................................................. 3

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

33 U.S.C. 1370(1) ....................................................... 30

33 U.S.C. 1370(2) ....................................................... 30

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

42 U.S.C. 9601 et seq. .......................................................... 32

42 U.S.C. 9601(8) ............................................................. 32

42 U.S.C. 9604(a)(1) ......................................................... 32

42 U.S.C. 9621(d)(2)(A) ................................................... 32

Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq. ................. 33

33 U.S.C. 2701(20) ........................................................... 33

Resource Conservation and Recovery Act of 1976,

42 U.S.C. 6901 et seq. .......................................................... 31

VII

Statutes and regulations—Continued:

Page

42 U.S.C. 6902(b) ............................................................. 31

42 U.S.C. 6903(3) ............................................................. 32

42 U.S.C. 6924(o) ............................................................. 32

42 U.S.C. 6924(p) ............................................................. 32

42 U.S.C. 6991b(c) ........................................................... 32

Safe Drinking Water Act, 42 U.S.C. 300f et seq. ............ 4, 31

42 U.S.C. 300h.................................................................. 31

42 U.S.C. 300h(b) ............................................................. 31

40 C.F.R.:

Pt. 122:

Section 122.2(2)(v) ..................................................... 15

Pt. 144:

Section 144.1(g) .......................................................... 31

Pt. 257:

Sections 257.90-257.98 .............................................. 32

Pt. 264:

Sections 264.90-264.99 .............................................. 32

Pt. 280 ............................................................................... 32

Miscellaneous:

118 Cong. Rec. 10,666 (1972) ................................................ 28

EPA, Clean Water Act Coverage of Discharges of

Pollutants via a Direct Hydrologic Connection to

Surface Water, Docket No. EPA-HQ-OW-20180063 (Feb. 20, 2018), https://www. regulations.

gov/document?D=EPA-HQ-OW-2018-0063-0001 ............. 6

83 Fed. Reg. 7126 (Feb. 20, 2018) .......................................... 6

84 Fed. Reg. 16,810 (Apr. 23, 2019) ............................ passim

W. Page Keeton et al., Prosser and Keeton on

The Law of Torts (5th ed. 1984) ........................................ 24

VIII

Miscellaneous—Continued:

Page

Memorandum from James E. Woolford &

John E. Reeder, Directors, Office of Solid Waste

and Emergency Response to Superfund National

Policy Managers, Summary of Key Existing EPA

CERCLA Policies for Groundwater Restoration

(June 26, 2009), https://semspub.epa.gov/work/

HQ/175202.pdf ..................................................................... 32

William L. Prosser, Handbook of The Law of Torts

(3d ed. 1964)......................................................................... 23

S. Rep. No. 414, 92d Cong., 1st Sess. (1971) ................. 28, 29

Water Pollution Control Legislation—1971

(H.R. 11896, H.R. 11895): Hearings Before the

House Comm. on Public Works, 92d Cong.,

1st Sess. (1972) .............................................................. 26, 27

Water Pollution Control Legislation—1971

(Proposed Amendments to Existing Legislation):

Hearings Before the House Comm. on Public

Works, 92d Cong., 1st Sess. (1971).................................... 26

Webster’s Third New International Dictionary

(1993) .................................................................................... 15

In the Supreme Court of the United States

No. 18-260

COUNTY OF MAUI, HAWAII, PETITIONER

v.

HAWAII WILDLIFE FUND, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the application of the Clean Water Act (CWA or Act), 33 U.S.C. 1251 et seq., to pollutants

that are released from a point source, travel through

groundwater, and ultimately migrate to navigable waters. Along with the States, see, e.g., 33 U.S.C. 1342(b),

the United States Environmental Protection Agency

(EPA) implements the Act, see 33 U.S.C. 1251(d), and

the United States both enforces the CWA and is a potential defendant in suits alleging the unpermitted discharge of a pollutant from federal facilities. The United

States has a strong interest in ensuring that the respective roles of the federal government and the States in

regulating the release of pollutants are appropriately

balanced under the Act. At the Court’s invitation, the

United States filed a brief as amicus curiae at the petition stage of this case.

(1)

2

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in an

appendix to this brief. App., infra, 1a-8a.

STATEMENT

1. Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of

the Nation’s waters,” 33 U.S.C. 1251(a), while “recogniz[ing], preserv[ing], and protect[ing] the primary responsibilities and rights of States to prevent, reduce,

and eliminate pollution,” 33 U.S.C. 1251(b). Subject to

certain exceptions that are not implicated here, the

CWA prohibits the “discharge of any pollutant” unless

the discharge is authorized by a permit issued in accordance with the Act. 33 U.S.C. 1311(a). The Act defines

the term “ ‘discharge of a pollutant’ ” to include “any addition of any pollutant to navigable waters from any

point source,” as well as additions of pollutants to “waters

of the contiguous zone or the ocean” from any point source

other than a vessel or other floating craft. 33 U.S.C.

1362(12)(A)-(B).

The CWA defines the term “ ‘navigable waters’ ”—

which are sometimes called jurisdictional surface

waters—as “the waters of the United States, including

the territorial seas.” 33 U.S.C. 1362(7); see 33 U.S.C.

1362(8) (defining “territorial seas”). The Act defines

the term “ ‘point source’ ” as “any discernible, 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.” 33 U.S.C.

1362(14). The Act recognizes that certain other sources

of diffuse pollution, referred to as “nonpoint source” discharges, will also occur, see, e.g., 33 U.S.C. 1288(b)(2)(F),

3

1329, but it does not include such releases within the

definition of the term “discharge of a pollutant,” 33 U.S.C.

1362(12).

The CWA “anticipates a partnership between the

States and the Federal Government,” Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992), and it establishes permitting programs through which appropriate federal or

state officials may authorize discharges of pollutants

from point sources into the waters of the United States.

Under the National Pollutant Discharge Elimination

System (NPDES) program, the EPA may permit the

discharge of pollutants other than dredged or fill material. 33 U.S.C. 1342(a). 1 The EPA may authorize a State

that meets certain statutory criteria to administer its

own NPDES program. 33 U.S.C. 1342(b). When a State

receives such authorization, the EPA retains oversight

and enforcement authority. 33 U.S.C. 1319, 1342(d). As

suggested by its name, the goal of the NPDES program

is to eliminate uncontrolled point source discharges to

waters of the United States.

The CWA authorizes enforcement actions to be

brought either by government officials, 33 U.S.C. 1319,

or by private citizens under specified circumstances,

33 U.S.C. 1365. A citizen suit may be brought against a

person “who is alleged to be in violation of ” specified

CWA requirements. 33 U.S.C. 1365(a)(1).

2. Petitioner owns and operates four wells at a

wastewater treatment plant that processes four million

gallons of sewage per day from approximately 40,000 people. Pet. App. 7. Treated wastewater is then injected

via petitioner’s wells into the groundwater, some of

A separate permitting program established by the Act governs

the discharge of dredged or f ill material into navigable waters, see

33 U.S.C. 1344, but that program is not implicated here.

1

4

which enters the Pacific Ocean via submarine seeps. Id.

at 7-9. Those wells operate under permits that authorize underground injection of wastewater pursuant to

the Safe Drinking Water Act, 42 U.S.C. 300f et seq. See

Pet. App. 37; Pet. 7.

Respondents are citizen plaintiffs who allege that petitioner violated the CWA by “discharging effluent

through groundwater and into the ocean without the

[NPDES] permit required.” Pet. App. 10-11. Respondents introduced into evidence the results of a “Tracer

Dye Study,” which showed that 64% of the pollutants

injected into two of petitioner’s wells ultimately reached

the Pacific Ocean. Id. at 9-10. In a series of rulings, the

district court held in favor of respondents, based in part

on its determination that a “party is liable under the

Clean Water Act if, without an NPDES permit, it indirectly discharges a pollutant into the ocean through a

groundwater conduit.” Id. at 56 (emphasis omitted); see

id. at 32-84, 85-100.

The court of appeals affirmed. Pet. App. 1-31. The

court first held that each of petitioner’s wells was a

“point source” under the Act. Id. at 13-16. The court

then addressed petitioner’s argument that, in order for

a CWA “discharge” to occur, “the point source itself

must convey the pollutants directly into the navigable

water,” rather than indirectly through groundwater (as

in the case of wastewater from petitioner’s wells). Id.

at 16 (emphasis omitted). The court rejected that argument, holding that “an indirect discharge from a point

source to a navigable water suffices for CWA liability to

attach.” Id. at 19.

In support of that conclusion, the Ninth Circuit relied in part on Justice Scalia’s plurality opinion in Ra-

5

panos v. United States, 547 U.S. 715 (2006), which suggested that the NPDES program covers circumstances

in which pollutants flow from point sources through intermittent streams before reaching jurisdictional surface waters. In the court of appeals’ view, that opinion

recognized that “the CWA does not forbid the ‘addition

of any pollutant directly to navigable waters from any

point source,’ but rather the ‘addition of any pollutant

to navigable waters.’ ” Pet. App. 21 (quoting Rapanos,

547 U.S. at 743). While acknowledging that the Rapanos

plurality opinion was not “controlling” in the Ninth Circuit, the court viewed that opinion as nonetheless supporting its conclusion that pollutants need not “be discharged ‘directly’ to navigable waters from a point

source” to fall within the Act’s coverage. Id. at 23.

The Ninth Circuit accordingly held petitioner liable

under the CWA because

(1) [petitioner] 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 water, and (3) the pollutant levels

reaching navigable water are more than de minimis.

Pet. App. 24. The court viewed its “ ‘fairly traceable’ ”

standard (point 2 above) as more faithful to the CWA

than an alternative test, advocated by the United States

in its Ninth Circuit amicus brief (see p. 13 n.3, infra),

that would have “requir[ed] a ‘direct hydrological connection’ between the point source and the navigable water.” Pet. App. 24 n.3.

3. Shortly after the Ninth Circuit issued its decision

in this case, the EPA requested public comment on

“whether pollutant discharges from point sources that

reach jurisdictional surface waters via groundwater or

6

other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.” 83 Fed. Reg. 7126, 7126 (Feb.

20, 2018). The EPA’s request noted that federal courts

had disagreed about the Act’s applicability to discharges

through groundwater, id. at 7127-7128, and it sought

the views of interested parties regarding whether “subjecting such releases to CWA permitting is consistent

with the text, structure, and purposes of the CWA,” id.

at 7128. The EPA received more than 50,000 public

comments in response to its request. See EPA, Clean

Water Act Coverage of Discharges of Pollutants via a

Direct Hydrologic Connection to Surface Water,

Docket No. EPA-HQ-OW-2018-0063 (Feb. 20, 2018).2

On April 23, 2019, the EPA published an “Interpretive Statement on Application of the Clean Water Act

National Pollutant Discharge Elimination System Program to Releases of Pollutants From a Point Source to

Groundwater.” 84 Fed. Reg. 16,810. The agency explained that its Interpretive Statement was intended to

“advise the public on how EPA interprets the relevant

provisions of the CWA.” Id. at 16,811. The Interpretive

Statement set forth the agency’s “comprehensive analysis of the CWA’s text, structure, [and] legislative history” insofar as relevant to the applicability of NPDES

program requirements to releases of pollutants to

groundwater from a point source. Ibid.

At the outset of its analysis, the EPA observed that

responses to its 2018 request for comment had generally advocated one of two opposing views. Some commenters had argued, consistent with the Ninth Circuit’s

decision in this case, that “a ‘discharge of a pollutant’

https://www.regulations.gov/document?D=EPA-HQ-OW-20180063-0001.

2

7

may occur when a pollutant has been added to a navigable water via groundwater with some connection to the

navigable water.” 84 Fed. Reg. at 16,813. Other commenters had advanced the view, “sometimes described

as the ‘terminal point source’ theory,” under which “any

intermediary between the point source and the navigable water means that a pollutant has not been discharged ‘to the navigable water from the point source.’ ”

Id. at 16,814 (quoting 33 U.S.C. 1362(12)(A)) (brackets

omitted).

The EPA explained that its own interpretation “differ[ed] from these two theories.” 84 Fed. Reg. at 16,814.

In the agency’s view, “the best, if not the only, reading

of the statute is that all releases to groundwater are excluded from the scope of the NPDES program, even

where pollutants are conveyed to jurisdictional surface

waters via groundwater.” Ibid. Relying on evidence

from the Act’s text, structure, and legislative history,

the EPA concluded that “the CWA clearly evinces a

purpose not to regulate groundwater,” and that “any

circumstance in which a pollutant is released from a

point source to groundwater is categorically excluded

from the CWA’s coverage.” Ibid.; see ibid. (discussing

absence of groundwater regulation in “[t]he operative,

enforceable provisions of the Clean Water Act that make

up the NPDES permitting program”); id. at 16,815 (discussing evidence of “Congress’s intent to deliberately

leave groundwater out of the definition of ‘discharge of

a pollutant’ ”); id. at 16,816-16,817 (discussing other provisions of the Act that recognize the States’ role in regulating groundwater).

The EPA determined that, in light of Congress’s evident intent that pollutant releases to groundwater

should not be subject to NPDES requirements, “[t]he

8

interposition of groundwater between a point source

and the navigable water thus may be said to break the

causal chain between the two, or alternatively may be

described as an intervening cause.” 84 Fed. Reg. at

16,814. The agency did not endorse the “ ‘terminal point

source’ theory,” which asserts that any spatial gap between a point source and jurisdictional surface waters

renders the NPDES program inapplicable. Ibid.; see Pet.

Br. 19 (describing its theory as a “means-of-delivery

test”). Rather, the Interpretive Statement explained

that, for circumstances where pollutants move from

point sources to jurisdictional surface waters without

traveling through groundwater, the agency would leave

in place its prior “case-by-case approach,” under which

the determination “[w]hether a [NPDES] permit is required * * * is necessarily a fact-specific inquiry, informed by the point source definition and an analysis of

intervening factors.” 84 Fed. Reg. at 16,814.

The EPA acknowledged that its prior statements

concerning pollutant releases to groundwater reflected

a “lack of consistent and comprehensive direction.”

84 Fed. Reg. at 16,817. Some government briefs (including the government’s Ninth Circuit amicus brief in

this case) and EPA guidance documents had stated

“that discharges to groundwater with a direct hydrologic connection to jurisdictional surface waters are

subject to the CWA.” Id. at 16,818. The EPA explained,

however, that its prior statements—many of which provided little or no analysis and were contained in documents that dealt primarily with other topics—“t[ook]

insufficient account of the explicit treatment of groundwater under the CWA, as reflected in the statute’s text,

structure, and legislative history.” Id. at 16,819.

9

Finally, the EPA determined that its view was supported by policy considerations. The agency explained

that, “[c]onsistent with Congress’s intent in structuring

the CWA,” its interpretation of the Act “will continue to

give states primacy for regulating ubiquitous groundwater discharges from sources such as septic tanks

which are known to affect jurisdictional surface water

quality in some instances.” 84 Fed. Reg. at 16,823-16,824;

see id. at 16,824 (describing “state laws and regulations

that prohibit or limit discharges of pollutants to groundwater”). At the same time, the EPA identified several

statutes that establish a “clear federal role” in regulating discharges into groundwater and protecting “groundwater quality.” Id. at 16,824; see id. at 16,824-16,826

(discussing examples). The EPA concluded that “[t]here

is sufficient legal authority to address releases of pollutants to groundwater that subsequently reach jurisdictional surface waters at both the state and federal level

without expanding the CWA’s regulatory reach beyond

what Congress envisioned.” Id. at 16,823.

SUMMARY OF ARGUMENT

The CWA prohibits unpermitted “discharge[s] of

any pollutant,” 33 U.S.C. 1311(a), which include “any

addition of any pollutant to navigable waters from any

point source,” 33 U.S.C. 1362(12)(A). That permitting

requirement does not apply where, as here, a pollutant

is released from a point source to groundwater, even if

the pollutant ultimately migrates to navigable waters.

A. The NPDES program does not apply to groundwater pollution. The CWA’s definition of “discharge of

a pollutant” applies only where pollutants are added to

one of three categories of water: navigable waters, waters of the contiguous zone, and the ocean. 33 U.S.C.

1362(12)(A) and (B). All three are surface waters, and

10

they are sometimes referred to as “jurisdictional surface waters” because they reflect the limits of the

NPDES program’s coverage.

Groundwater is distinct from surface water, and the

Act addresses them separately. But in contrast to the

Act’s treatment of jurisdictional surface waters, Congress confined the federal role in protecting groundwater under the NPDES program to providing the States

with informational, organizational, and resource-based

assistance. Several CWA provisions treat groundwater

pollution in the same manner as nonpoint source pollution, over which the States have sole regulatory authority. See, e.g., 33 U.S.C. 1288(a), 1329(h)(5)(D).

B. The Ninth Circuit concluded that a release to

groundwater can qualify as a “discharge of a pollutant”

under certain circumstances—namely, where the pollutant eventually migrates to a jurisdictional surface water and is “fairly traceable from the point source to a

navigable water” at more than de minimis levels. Pet.

App. 24. In the court’s view, such a release may properly

be considered an “indirect discharge” to a navigable water, id. at 22, a concept for which the court found support in Justice Scalia’s plurality opinion in Rapanos v.

United States, 547 U.S. 715 (2006). But Justice Scalia’s

opinion focused on circumstances in which pollutants

are released “into noncovered intermittent watercourses that lie upstream of covered waters.” Id. at 743.

Releases of pollutants to groundwater raise distinct

concerns, in light of Congress’s deliberate exclusion of

groundwater pollution from the NPDES program and

Congress’s separate treatment of such pollution under

distinct CWA provisions and other federal statutes.

Given that congressional choice, the EPA has correctly

11

concluded that “[t]he interposition of groundwater between a point source and the navigable water thus may

be said to break the causal chain between the two, or

alternatively may be described as an intervening cause.”

84 Fed. Reg. at 16,814.

Adoption of the Ninth Circuit’s “fairly traceable”

standard would also substantially enlarge the EPA’s

regulatory authority beyond what Congress intended.

Among other things, it could sweep within the NPDES

program private septic tank systems—currently used

by millions of homeowners without a permit—which often release pollutants such as nutrients into the water

table. Application of NPDES permitting requirements

to such activities would upend the traditional federalstate balance and disserve Congress’s intent.

The Congress that enacted the CWA was keenly

aware of the link between groundwater and surface waters, and in particular of the potential for pollutants to

reach jurisdictional surface waters by migrating through

groundwater. Yet Congress rejected proposals to regulate groundwater under the NPDES program, including as a means of preventing “indirect” surface-water

pollution. Instead, Congress has safeguarded the quality of groundwater, and of surface water connected to

groundwater, through other federal legislation. Congress has also authorized the States to adopt their own

protections for groundwater—which many have done.

The text and history of the CWA, and of complementary

federal legislation, reflect Congress’s decision to address groundwater pollution through measures other

than the NPDES program.

C. Respondents allege that petitioner released a pollutant (treated wastewater) into the ground, where

groundwater carried it to a navigable water (the ocean).

12

Because releases of pollutants to groundwater are categorically excluded from regulation under the NPDES

program, respondents’ allegations necessarily fail. The

Court need not address whether or how NPDES permitting requirements would apply where pollutants travel

from a point source to surface water by some route

other than through groundwater. Releases of that type

raise distinct issues, and the EPA and the United States

accordingly evaluate them on a case-by-case basis, “informed by the point source definition and an analysis of

intervening factors.” 84 Fed. Reg. at 16,814. A broader

ruling would unnecessarily call those practices into

question.

ARGUMENT

UNDER THE CLEAN WATER ACT, A RELEASE OF POLLUTANTS TO GROUNDWATER IS NOT SUBJECT TO NPDES

REQUIREMENTS, EVEN IF THE POLLUTANTS SUBSEQUENTLY MIGRATE TO JURISDICTIONAL SURFACE

WATERS

The CWA prohibits the unpermitted “discharge of

any pollutant,” 33 U.S.C. 1311(a), a term defined to include “any addition of any pollutant to navigable waters

from any point source,” 33 U.S.C. 1362(12)(A). As the

text, structure, and legislative history of the Act make

clear, a pollutant that is released to groundwater has

not been “add[ed] * * * to navigable waters from [a]

point source” within the meaning of the statute, even if

the groundwater eventually carries that pollutant to a

jurisdictional surface water. The contrary interpretation adopted by the Ninth Circuit—under which pollutants released into groundwater are subject to the

NPDES permitting regime whenever they “are fairly

traceable from [a] point source to a navigable water” at

13

more than de minimis levels, Pet. App. 24—is inconsistent with Congress’s evident intent to exclude pollutant

releases into groundwater from the NPDES program.3

A. The NPDES Regime Protects Only Surface Waters And

Does Not Regulate Releases Of Pollutants To Groundwater

1. The CWA’s prohibition on unpermitted pollutant

“discharge[s],” 33 U.S.C. 1311(a), applies to releases

that involve the addition of pollutants “to navigable waters from any point source,” 33 U.S.C. 1362(12)(A) (emphasis added), as well as to releases involving the addition of pollutants “to the waters of the contiguous zone

or the ocean from any point source other than a vessel

or other floating craft,” 33 U.S.C. 1362(12)(B) (emphases added). The three italicized categories comprise all

waters subject to the NPDES permitting regime. Each

of the three is a defined term under the Act. See 33 U.S.C.

1362(7), (9), and (10).

Other CWA provisions confirm the exclusive focus of

the NPDES regime on pollutant discharges to navigable waters, the ocean, and the contiguous zone. Those

three categories are used to define the term “ ‘effluent

limitation’ ” as “any restriction * * * on quantities, rates,

and concentrations of chemical, physical, biological, and

other constituents which are discharged from point

In the court of appeals, the government filed an amicus brief

supporting respondents. Since that time, however, the EPA has

comprehensively reexamined the question whether pollutant releases into groundwater may trigger NPDES permitting requirements. That agency endeavor was informed by a notice-and-comment

process that elicited more than 50,000 public comments. This brief

reflects the government’s reconsideration of the issue in light of that

notice-and-comment process and further agency analysis.

3

14

sources into navigable waters, the waters of the contiguous zone, or the ocean.” 33 U.S.C. 1362(11) (emphasis

added). NPDES permits often incorporate effluent limitations as a mechanism for controlling discharges of

pollutants to jurisdictional surface waters. See, e.g.,

33 U.S.C. 1311(b), (d), and (e); see also EPA v. California ex rel. Water Res. Control Bd., 426 U.S. 200, 204205 (1976). The EPA is also required to establish guidelines for pretreatment of certain pollutants to assist the

States in implementing the NPDES program, and those

guidelines likewise must seek “to control and prevent

the discharge [of such pollutants] into the navigable

waters, the contiguous zone, or the ocean.” 33 U.S.C.

1314(g)(1) (emphasis added).

All three of the categories of water covered by the

NPDES regime are surface waters. That is evidently

true of the ocean and the “contiguous zone,” which is

defined by reference to an international treaty, see

33 U.S.C. 1362(9), as extending seaward up to 12 nautical miles from the coast, see Convention on the Territorial Sea and the Contiguous Zone art. 24, opened for signature Apr. 29, 1958, 15 U.S.T. 1612-1613, 516 U.N.T.S.

220, 222 (entered into force Sept. 10, 1964). The same

is true of “ ‘navigable waters,’ ” defined to mean “the waters of the United States, including the territorial seas.”

33 U.S.C. 1362(7); see 33 U.S.C. 1362(8) (defining “territorial seas”). Although the “ ‘waters of the United

States’ ” that the CWA protects are not strictly limited

to those “deemed ‘navigable’ under the classical understanding of that term,” United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 134 (1985), the

CWA’s applicability to such waters nevertheless reflects the federal government’s “traditional jurisdiction

over waters that were or had been navigable in fact or

15

which could reasonably be so made,” Solid Waste Agency

of N. Cook Cnty. v. Army Corps of Eng’rs, 531 U.S. 159,

172 (2001). Only surface waters meet that description.

2. The CWA addresses groundwater through provisions separate and distinct from those that address the

three categories of jurisdictional surface waters just described. Groundwater is generally understood as water

below the earth’s surface in the saturated zone, “the

area in which all interconnected spaces in rocks and soil

are filled with water.” 84 Fed. Reg. at 16,812; see Webster’s Third New International Dictionary 1004 (1993)

(defining “groundwater” as “water within the earth that

supplies wells and springs”). At issue in this case, for

instance, are subsurface flows beneath the ground. Pet.

App. 10; see id. at 9, 34-35 (describing experiment that

detected subsurface movement by pollutants of one-half

mile over 84 days). Groundwater is not navigable and

cannot be made navigable, and it is different in kind

from the waters that have historically been treated as

“waters of the United States.” See 40 C.F.R. 122.2(2)(v)

(specifying that “Groundwater” does not qualify as

“ ‘waters of the United States’ ”). Releases to groundwater accordingly fall outside the statutory definition of

a CWA “discharge of a pollutant.” 33 U.S.C. 1362(12).

By enacting a definition of “discharge of a pollutant”

that does not encompass pollutant releases to groundwater, Congress made clear its expectation that groundwater pollution would be addressed through mechanisms other than the NPDES program. Indeed, the

lone operative NPDES provision that mentions groundwater relates to the States’ traditional role in protecting

groundwater. In specifying requirements for the EPA

to approve state NPDES programs, the Act instructs

that the EPA must determine that adequate authority

16

exists “under State law” to “control the disposal of pollutants into wells.” 33 U.S.C. 1342(b)(1)(D). This “simple

requirement” to ensure “that state permit programs

have adequate authority to issue permits which control

the disposal of pollutants into wells, which is not fleshed

out elsewhere in the Act or mirrored in any of the sections setting forth the [EPA’s] powers,” shows Congress’s intention to “stop short of establishing federal

controls over groundwater pollution.” Exxon Corp. v.

Train, 554 F.2d 1310, 1324-1325 (5th Cir. 1977).

3. Other CWA provisions that address issues of

groundwater quality do so in one of two ways, both of

which reflect Congress’s recognition of state regulatory

primacy in this sphere. First, the Act directs the EPA

to gather information that may assist state efforts to

regulate discharges to groundwater. Second, the Act

addresses groundwater in the context of state programs

to manage nonpoint source pollution. Taken together,

these provisions confirm that the States retain responsibility for regulating groundwater pollution, while

providing federal support and resources to assist the

States’ regulatory efforts.

a. Title I of the CWA contains several provisions

that direct the EPA to address groundwater pollution

through information gathering and coordination with

the States. The EPA must, among other things, “prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters.”

33 U.S.C. 1252(a) (emphases added). In performing

those functions, the EPA must cooperate with “State

water pollution control agencies, interstate agencies

and the municipalities,” and it is further authorized to

17

“make joint investigations with any such agencies of the

condition of any waters in any State or States, and of

the discharges” to such waters. Ibid. The EPA also

must establish national programs “in cooperation with

the States, and their political subdivisions,” in order to

“establish, equip, and maintain a water quality surveillance system for the purpose of monitoring the quality

of the navigable waters and ground waters and the contiguous zone and the oceans.” 33 U.S.C. 1254(a)(5) (emphasis added).

Title II of the CWA provides federal resources to the

States to enhance groundwater protection. See Exxon,

554 F.2d at 1323 (Congress “employed the power of the

federal purse to encourage protection by the states of

underground waters.”). In authorizing the EPA to

make grants to the States to construct publicly owned

treatment works, for example, Congress specially provided for increased funding for such construction if a

State certifies that the quantity of “available groundwater will be insufficient, inadequate, or unsuitable for

public use” unless effluents from public works, after adequate treatment, “are returned to the ground water.”

33 U.S.C. 1282(b)(2).

Title III of the Act requires the gathering of information relevant to groundwater protection and provides mechanisms for funding relevant state efforts.

See, e.g., 33 U.S.C. 1314(a)(1)(A) (directing the EPA to

develop and publish water quality criteria regarding,

among other things, expected effects on health and welfare “from the presence of pollutants in any body of water, including ground water”); 33 U.S.C. 1314(a)(2)(A)

(directing the EPA to develop and publish information

regarding, among other things, the factors necessary to

18

restore and maintain the chemical, physical, and biological integrity of “all navigable waters, ground waters,

waters of the contiguous zone, and the oceans”); ibid.

(requiring publication of information on the “factors

necessary to restore and maintain the chemical, physical, and biological integrity of all navigable waters,

ground waters, waters of the contiguous zone, and the

oceans”). Those and other similar provisions, which facilitate the gathering of information without “transforming this information into enforceable limitations,

strongly suggest[ ] that Congress meant to stop short of

establishing federal controls over groundwater pollution.” Exxon, 554 F.2d at 1324.

b. Other groundwater-focused CWA provisions treat

groundwater pollution in the same manner as nonpoint

source pollution. Nonpoint source pollution is another

distinct area in which the Act preserves state primacy,

offering support for state programs rather than establishing enforceable federal regulatory requirements.

Two such provisions stand out. First, Congress addressed concern over nonpoint source pollution affecting groundwater by requiring the States to submit to

the EPA “areawide waste treatment management

plans,” which must include processes for controlling the

disposal of pollutants on land or in subsurface excavation to “protect ground and surface water quality.”

33 U.S.C. 1288(a) and (b)(2)(K). Such plans must include a process to identify mine-related sources of pollution, including “underground mine runoff,” and must

include procedures and methods to control those

sources of runoff. 33 U.S.C. 1288(a) and (b)(2)(G).

Similarly, among its other measures aimed at helping the States control pollution from nonpoint sources,

19

the CWA authorizes the EPA in its grant-making to prioritize instances where States have implemented or

propose to implement programs to “carry out ground

water quality protection activities which the [EPA] determines are part of a comprehensive nonpoint source

pollution control program.” 33 U.S.C. 1329(h)(5)(D).

States may also receive groundwater-specific grants to

help them “carry[] out groundwater quality protection

activities” that will “advance the State toward implementation of a comprehensive nonpoint source pollution

control program.” 33 U.S.C. 1329(i)(1). Congress intended for such support “to protect the quality of

groundwater and to prevent contamination of groundwater from nonpoint sources of pollution.” Ibid.

In sum, as the EPA’s recent Interpretive Statement

explains, “[t]he foundational definitional terms and provisions that establish the NPDES program extend only

to discharges of pollutants to * * * jurisdictional surface waters.” 84 Fed. Reg. at 16,814. By contrast, Congress “included references to groundwater in provisions

aimed at providing information, guidance, and funding

to states, to enable them to regulate pollutant discharges

to groundwater.” Ibid. Thus, “the [CWA’s] structure

and references to groundwater therein are reflective of

Congress’s intent to leave regulation of releases of pollutants to groundwater with the states.” Ibid.

B. The Release Of A Pollutant To Groundwater Is Not A

“Discharge Of A Pollutant” Under Section 1311, Even If

The Pollutant Eventually Migrates To Jurisdictional

Surface Waters

The Ninth Circuit “assume[d] without deciding [that]

the groundwater here is neither a point source nor a

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

court nevertheless held that the release of a pollutant to

20

groundwater may be subject to NPDES requirements

if the pollutant eventually migrates to a jurisdictional

surface water. In the court’s view, such an “indirect discharge from a point source to a navigable water suffices

for CWA liability to attach,” id. at 19, at least where

pollutants are “fairly traceable from the point source to

a navigable water” at levels that “are more than de minimis,” id. at 24. That conclusion is inconsistent with Congress’s evident desire to exclude pollutant releases to

groundwater from the NPDES permitting program, and

it would unduly broaden the reach of the NPDES system.

1. In support of its view that the CWA’s definition of

“discharge” encompasses pollutant releases to groundwater that migrates to navigable waters, the Ninth Circuit relied on Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). Writing for

himself and three other Members of the Court, Justice

Scalia concluded that the CWA term “navigable waters”

does not encompass “channels containing merely intermittent or ephemeral flow.” Id. at 733-734. In the

course of his analysis, Justice Scalia addressed and rejected the government’s argument that reading the

term “ ‘navigable waters’ ” to exclude intermittent channels would allow “water polluters * * * to evade the

permitting requirement of § 1342(a) simply by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters.” Rapanos,

547 U.S. at 742-743. Justice Scalia explained:

Though we do not decide this issue, there is no reason to suppose that our construction today significantly affects the enforcement of § 1342, inasmuch as

lower courts applying § 1342 have not characterized

intermittent channels as “waters of the United States.”

The Act does not forbid the “addition of any pollutant

21

directly to navigable waters from any point source,”

but rather the “addition of any pollutant to navigable

waters.” § 1362(12)(A) (emphasis added); § 1311(a).

Thus, from the time of the CWA’s enactment, lower

courts have held that the discharge into intermittent

channels of any pollutant that naturally washes

downstream likely violates § 1311(a), even if the pollutants discharged from a point source do not emit

“directly into” covered waters, but pass “through

conveyances” in between.

Id. at 743 (citation omitted). 4

The Ninth Circuit read Justice Scalia’s opinion as endorsing an “ ‘indirect discharge’ rationale.” Pet. App.

22. While recognizing that the Rapanos plurality opinion was not “controlling,” the court described the opinion as “persuasive” support for the proposition that a

pollutant release may fall within the permitting requirement imposed by Section 1311 even if the pollutant is

not “discharged ‘directly’ to navigable waters from a

point source.” Id. at 23. Instead, the court held, it suffices if “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 water.” Id. at 24.

2. The Ninth Circuit’s analysis is unpersuasive. Justice Scalia’s discussion did not address groundwater but

instead focused solely on circumstances in which pollutants are released “into noncovered intermittent watercourses that lie upstream of covered waters.” Rapanos,

Justice Scalia also described an alternative theory under which

“intermittently flowing channels [may] themselves constitute ‘point

sources under the Act,’ ” and observed that “[s]ome courts have even

adopted both the ‘indirect discharge’ rationale and the ‘point source’

rationale in the alternative.” Rapanos, 547 U.S. at 743-744.

4

22

547 U.S. at 743; see ibid. (circumstances where “the discharge [is] into intermittent channels”). All the lower

court decisions that Justice Scalia offered as examples

of the indirect discharge theory, see id. at 743-744, involved releases into such intermittent watercourses.

See Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d

1133, 1136-1137, 1141 (10th Cir. 2005) (abandoned mine

tunnels), cert. denied, 547 U.S. 1065 (2006); Concerned

Area Residents for the Env’t v. Southview Farm, 34 F.3d

114, 118-119 (2d Cir. 1994), cert. denied, 514 U.S. 1082

(1995) (flow over farm field collected into swale connected

by a pipe to a ditch); United States v. Velsicol Chem.

Corp., 438 F. Supp. 945, 946-947 (W.D. Tenn. 1976) (city

sewer system).

Releases of pollutants to groundwater raise issues

distinct from those implicated by releases to intermittent watercourses or other media. As described above,

Congress chose to exclude groundwater pollution from

the NPDES program, leaving the States to regulate

groundwater quality while offering federal informational and financial assistance. That congressional policy choice would be subverted if releases to groundwater were held to come within the NPDES program’s

scope whenever the released pollutants migrated to

navigable waters and were “fairly traceable” to a point

source. Pet. App. 24. Applying NPDES requirements

to pollutants that flow through intermittent watercourses or via other means raises no similar concern.

In concluding that pollutants found in jurisdictional

surface waters were “fairly traceable” to petitioner’s releases, the Ninth Circuit found it sufficient that “the

Tracer Dye Study and [petitioner’s] concessions conclusively establish that pollutants discharged from all four

wells emerged at discrete points in the Pacific Ocean,

23

with 64 percent of the wells’ pollutants reaching the

ocean.” Pet. App. 24. The court further explained that

“[t]he Study also traced a southwesterly path from the

wells’ point source discharges to the ocean.” Id. at 24-25.

The court “le[ft] 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. The Fourth Circuit, while

holding that pollutant releases into groundwater may

require a NPDES permit if the pollutants ultimately

migrate to jurisdictional surface waters, has held that a

CWA plaintiff must establish a “direct hydrologic connection” between the point source and the navigable waters. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (2018), petition for cert. pending, No. 18-268 (filed Aug. 28, 2018); but see Kentucky

Waterways Alliance v. Kentucky Utils. Co., 905 F.3d

925 (6th Cir. 2018); Tennessee Clean Water Network v.

Tennessee Valley Auth., 905 F.3d 436 (6th Cir. 2018), petition for cert. pending, No. 18-1307 (filed Apr. 15, 2019).

The tests articulated by the Fourth and Ninth Circuits give insufficient weight to Congress’s evident intent that groundwater pollution should be addressed

under the CWA through mechanisms specifically directed to that end, rather than subsumed within the

NPDES program. The legal concept of “ ‘proximate

cause’ ” often serves as “shorthand for the policy-based

judgment that not all factual causes contributing to an

injury should be legally cognizable causes.” CSX

Transp., Inc. v. McBride, 564 U.S. 685, 701 (2011) (opinion of Ginsburg, J.); see William L. Prosser, Handbook

of The Law of Torts § 49, at 283 (3d ed. 1964) (proximate

causation turns on “policy issues which determine the

extent of the [defendant’s] original obligation and of its

24

continuance, rather than [on] the mechanical sequence

of events which goes to make up causation in fact”). The

CWA’s definition of “discharge of a pollutant” is naturally read to contemplate such an inquiry. A release is

not properly viewed as “addi[ng] * * * [a] pollutant to

navigable waters from [a] point source,” 33 U.S.C.

1362(12)(A) (emphases added), if the path between the

point source and jurisdictional surface waters is too attenuated.

Passage of pollutants through intermediate groundwater likewise should preclude a determination that the

pollutants were added “to” jurisdictional surface waters

“from” a “point source.” As the EPA’s Interpretive

Statement explains, “[t]he interposition of groundwater

between a point source and the navigable water thus

may be said to break the causal chain between the two,

or alternatively may be described as an intervening

cause.” 84 Fed. Reg. at 16,814. Congress’s exclusion of

groundwater pollution from the NPDES program, and

its conferral upon the States of responsibility for regulating such pollution, indicate that the movement of pollutants through groundwater is not the type of factor on

which NPDES permitting requirements should turn.

Cf. Holmes v. Securities Investor Prot. Corp., 503 U.S.

258, 268 (1992) (“At bottom, the notion of proximate

cause reflects ‘ideas of what justice demands, or of what

is administratively possible and convenient.’ ”) (quoting

W. Page Keeton et al., Prosser and Keeton on the Law

of Torts § 41, at 264 (5th ed. 1984)).

3. Construing the Act’s definition of “discharge” as

encompassing releases to groundwater also threatens

to work “an enormous and transformative expansion in

EPA’s regulatory authority.” Utility Air Regulatory

Grp. v. EPA, 573 U.S. 302, 324 (2014). For instance,

25

“[o]ver 26 million homes in the United States employ

septic systems to treat and dispose of household waste,”

and “even well-functioning septic systems can contribute pollutants such as nutrients to groundwater.” 84 Fed.

Reg. at 16,812. Such systems often release “pollutants

such as nutrients” into the ground, ibid., where they

may enter the water table and eventually “find their

way to jurisdictional surface waters through groundwater,” id. at 16,823. Interpreting the Act to cover such

releases could require some septic tank owners, for the

first time, to obtain NPDES permits. See id. at 16,812

(“To date, neither EPA nor states have generally required NPDES permits for these types of activities.”).

The same could be true for those engaging in other common forms of water management, including “green infrastructure projects” that “release stormwater and recycled wastewater to the ground to recharge depleted

aquifers and prevent or reduce runoff to surface waters.” Ibid.

The Ninth Circuit’s interpretation would thus “expand the Act’s coverage beyond what Congress envisioned, potentially sweeping into the scope of the statute commonplace and ubiquitous activities.” 84 Fed.

Reg. at 16,823. This Court previously has cautioned

against taking such a step “without clear congressional

authorization.” Utility Air Regulatory Grp., 573 U.S.

at 324. Nor is the Court typically inclined to read the

CWA in a manner that would substantially “readjust

the federal-state balance” absent a “clear statement

from Congress.” Solid Waste Agency of N. Cook Cnty.,

531 U.S. at 174.

4. The legislative debates that preceded the CWA’s

enactment reveal Congress’s awareness of the relation-

26

ship between groundwater and surface waters, including the potential for pollutants to migrate via groundwater to jurisdictional surface waters. Congress nevertheless rejected proposals to regulate groundwater under the NPDES program, even as a means of protecting

surface waters. See Village of Oconomowoc Lake v.

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

(“Members of Congress have proposed adding ground

waters to the scope of the Clean Water Act,” but “Congress elected to leave the subject to state law.”), cert.

denied, 513 U.S. 930 (1994).

In a hearing before the House Public Works Committee, for instance, EPA Administrator William Ruckelshaus testified in support of creating federal standards for

regulating groundwater, out of concern about the indirect

effects of groundwater pollution on surface waters:

The only reason for the request for Federal authority over ground waters was to assure that we have

control over the water table in such a way as to insure that our authority over interstate and navigable

streams cannot be circumvented, so we can obtain

water quality by maintaining a control over all the

sources of pollution, be they discharged directly into

any stream or through the ground water table.

Water Pollution Control Legislation—1971 (Proposed

Amendments to Existing Legislation): Hearings Before

the House Comm. on Public Works, 92d Cong., 1st Sess.

230 (1971).

Representative Leslie Aspin similarly expressed

concern that groundwater was “conspicuously included”

in all sections of the bill except the one establishing the

NPDES program (Title IV). Water Pollution Control

Legislation—1971 (H.R. 11896, H.R. 11895): Hearings

Before the House Comm. on Public Works, 92d Cong.,

27

1st Sess. 727 (1972) (Hearings). Representative Aspin

questioned whether a meaningful “distinction” could be

drawn between groundwater and surface waters:

Sometimes a navigable water and ground-water

source run into each other, or come close to each

other, so that seepage from the polluted groundwater source could pollute the navigable water or vice

versa. To say that the Federal Government can regulate the ecology of one, but not the other, is silly and

counterproductive.

Hearings 728.

Representative Aspin accordingly proposed an

amendment to regulate groundwater under the NPDES

program by adding the term “ground waters” to the definition of “discharge of pollutant” now found in 33 U.S.C.

1362(12). See Hearings 728. He explained the rationale

for his amendment by invoking the need to protect surface waters against the introduction of pollutants via

groundwater:

[T]he amendment brings ground water into the subject of the bill, into the enforcement of the bill.

Ground water appears in this bill in every section, in

every title except title IV. It is under the title which

provides EPA can study ground water. It is under

the title dealing with definitions. But when it comes

to enforcement, title IV, the section on permits and

licenses, then ground water is suddenly missing.

* * * If we do not stop pollution of ground waters

through seepage and other means, ground water gets

into navigable waters, and to control only the navigable water and not the ground water makes no

sense at all.

28

118 Cong. Rec. 10,666 (1972) (emphasis added). The

House rejected the Aspin amendment by a vote of 86 to

34. See id. at 10,669; see also id. at 10,667 (remarks of

Rep. Clausen opposing amendment).

The Senate was similarly aware of the link between

surface waters and groundwater. The Committee on

Public Works explained that it preferred to address the

indirect effects of groundwater pollution on surface waters, not by regulating releases to groundwater under

the NPDES regime, but by strengthening state efforts

to protect groundwater:

Several bills pending before the Committee provided

authority to establish Federally approved standards

for groundwaters which permeate rock, soil, and

other subsurface formations. Because the jurisdiction regarding groundwaters is so complex and varied from State to State, the Committee did not adopt

this recommendation.

The Committee recognizes the essential link between

ground and surface waters and the artificial nature

of any distinction. Thus the Committee bill requires

in section 402 that each State include in its program

for approval under section 402 affirmative controls

over the injection or placement in wells o[f ] any pollutants that may affect ground water. This is designed to protect ground waters and eliminate the

use of deep well disposal as an uncontrolled alternative to toxic and pollution control.

S. Rep. No. 414, 92d Cong., 1st Sess. 73 (1971) (Senate

Report) (emphasis added).

The Senate Committee proposed language, now codified at 33 U.S.C. 1342(b)(1)(D), requiring the States to

maintain programs for deep-well disposal to eliminate

29

uncontrolled well disposal as a potential cause of surface water pollution. See Senate Report 73. The Committee declined, however, to include groundwater in the

NPDES program. See ibid. The CWA’s legislative history thus shows that both Houses of Congress were

aware of the connection between groundwater and jurisdictional surface waters, including the potential for

pollutants to migrate through groundwater to surface

waters. Congress nevertheless rejected appeals to apply the NPDES program to groundwater pollution, preferring instead to address the issue by providing federal

assistance to the States.

To be sure, the approach to groundwater that Congress specifically considered and rejected was broader

than the rule adopted by the Ninth Circuit in this case.

By adding the term “ground waters” to the definition of

“discharge of pollutant,” Representative Aspin’s proposed amendment would have made all pollutant releases into groundwater subject to the NPDES program,

based on the general tendency of polluted groundwater

to impair the quality of jurisdictional surface waters.

The Ninth Circuit did not adopt that categorical rule,

but held that NPDES permitting requirements apply

when actual migration of pollutants is shown—i.e.,

when identified pollutants in jurisdictional surface waters are “fairly traceable” to point source releases that

migrate through groundwater.

Despite that distinction, the legislative deliberations

described above are highly relevant to understanding

the intent of the Congress that enacted the CWA. Neither the Members of Congress who supported Representative Aspin’s amendment, nor those who opposed it,

suggested that the bill under consideration already imposed NPDES permitting requirements on any point

30

source releases into groundwater that ultimately migrated to jurisdictional surface waters. To the contrary,

although Members of Congress disagreed as to whether

such releases should be covered by the NPDES program, their shared understanding was that the CWA as

enacted did not have that effect.

5. Although releases to groundwater are not subject

to the CWA’s NPDES permitting requirements, Congress has provided in other ways for the protection of

groundwater quality, including as a means of safeguarding surface waters. The States also have adopted

measures to protect against groundwater contamination, a role that the Act contemplates and encourages.

Together, these state and federal provisions “form a

mosaic of laws and regulations that provide mechanisms

and tools for EPA, states, and the public to ensure the

protection of groundwater quality, and to minimize related impacts to surface waters.” 84 Fed. Reg. at 16,824.

a. In addition to supporting state efforts to prevent

groundwater pollution through funding, informationgathering, and coordination assistance, see pp. 16-18,

supra, the CWA authorizes the States to regulate discharges to waters more stringently than federal law requires. See 33 U.S.C. 1370(1) (Act does not “preclude

or deny the right of any State * * * to adopt or enforce

(A) any standard or limitation respecting discharges of

pollutants, or (B) any requirement respecting control or

abatement of pollution”); see also 33 U.S.C. 1370(2).

Many state programs effectively prohibit or limit discharges of pollutants to groundwater. 84 Fed. Reg. at

16,824. In response to the EPA’s February 2018 request for comment, the attorneys general of Alabama,

Arkansas, Colorado, Georgia, Kansas, Louisiana, Minnesota, Missouri, Nebraska, Nevada, Oklahoma, South

31

Carolina, South Dakota, Texas, West Virginia, and Wyoming submitted comments describing state laws that

protect intrastate waters, including groundwater,

wholly apart from their States’ obligations under the

CWA. Ibid.

b. Unlike the CWA, other federal laws provide for “a

clear federal role” in protecting groundwater. 84 Fed.

Reg. at 16,824. Those provisions reinforce the conclusion that, insofar as Congress deemed federal groundwater protection to be necessary and appropriate, it relied on measures specifically crafted to that end, rather

than on the more general provisions of the NPDES permitting program. See id. at 16,824-16,826.

Under the Safe Drinking Water Act (SDWA),

42 U.S.C. 300f et seq., the EPA has established requirements for state programs to regulate the underground

injection of fluids to protect drinking water sources (i.e.,

underground water that supplies, or can reasonably be

expected to supply, public water systems). See 42 U.S.C.

300h. The EPA’s underground injection control program under the SDWA includes regulatory requirements for several classes of wells; bans certain types of

waste wells; and imposes reporting and other requirements for operating and closing wells. See 42 U.S.C.

300h(b); 40 C.F.R. 144.1(g).

The Resource Conservation and Recovery Act of

1976 (RCRA), 42 U.S.C. 6901 et seq., was enacted “to

reduce the generation of hazardous waste and to ensure

the proper treatment, storage, and disposal of that

waste which is nonetheless generated, ‘so as to minimize

the present and future threat to human health and the

environment.’ ” Meghrig v. KFC W., Inc., 516 U.S. 479,

483 (1996) (quoting 42 U.S.C. 6902(b)). The RCRA reg-

32

ulates the “ ‘disposal’ ” of hazardous waste, defined to include waste “discharged into any waters, including

ground waters.” 42 U.S.C. 6903(3). Among other things,

the RCRA requires groundwater monitoring at hazardous waste treatment, storage, and disposal facilities, see

42 U.S.C. 6924(o) and (p); 40 C.F.R. 264.90-264.99; and

restricts the release of regulated substances from underground storage tanks, 42 U.S.C. 6991b(c); 40 C.F.R.

Pt. 280. See also 40 C.F.R. 257.90-257.98 (imposing special rules to address groundwater contamination resulting from coal combustion).

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.

9601 et seq., provides another measure of federal protection from releases of hazardous substances to “ground

water” and “subsurface strata,” as well as to “surface

water.” 42 U.S.C. 9601(8); see 42 U.S.C. 9604(a)(1). In

remedial actions under CERCLA, the cleanup level

for groundwater must be that “which at least attains

Maximum Contaminant Level Goals established under

[SDWA] and water quality criteria established under

* * * the Clean Water Act.” 42 U.S.C. 9621(d)(2)(A).

Thus, when setting CERCLA cleanup levels for remedying discharges to groundwater that reach surface water, water-quality standards appropriately may incorporate CWA requirements applicable to the receiving

surface water. See 84 Fed. Reg. at 16,826 (citing Memorandum from James E. Woodford & John E. Reeder,

Directors, Office of Solid Waste and Emergency Response, to Superfund National Policy Managers, Summary of Key Existing EPA CERCLA Policies for

Groundwater Restoration 8 (June 26, 2009) (Directive

9283.1-33)).

33

Federal law also addresses liability for damages to

groundwater caused by oil spills. In the Oil Pollution

Act of 1990 (OPA), 33 U.S.C. 2701 et seq., Congress authorized awards of damages for harm to “ ‘natural resources,’ ” and it defined that term to include “ground

water.” 33 U.S.C. 2701(20). Like the SDWA, RCRA,

and CERCLA provisions described above, the OPA’s

definition of natural resources indicates that when Congress intends to establish federal protections for groundwater, it refers to groundwater specifically.

C. This Court Need Not Address The Application Of The

NPDES Program To Circumstances Where Pollutants

Do Not Travel Through Groundwater

In light of “Congress’s unique treatment of groundwater in the CWA,” 84 Fed. Reg. at 16,819, the NPDES

program is categorically inapplicable to releases of pollutants to groundwater. This case solely involves allegations that pollutants were released from a point source

“into groundwater, through which the pollutants then

enter[ed] a ‘navigable water.’ ” Pet. App. 13 (brackets

omitted). The principle articulated above is accordingly

sufficient to determine that respondents’ allegations do

not state a violation of the Act. This Court need not decide whether and how the Act would apply when pollutants travel from a point source to jurisdictional surface

waters through a medium other than groundwater.

In particular, the Court need not determine how the

NPDES program might apply where pollutants released from a point source travel to jurisdictional surface waters over land. The EPA’s Interpretive Statement described and reaffirmed the agency’s “case-bycase approach to determining whether pollutant releases

to jurisdictional surface waters that do not travel through

groundwater require an NPDES permit. Whether a

34

permit is required for such a release is necessarily a

fact-specific inquiry, informed by the point source definition and an analysis of intervening factors.” 84 Fed.

Reg. at 16,814.

Accordingly, the United States has sometimes determined that point source releases of pollutants that traveled over land to jurisdictional surface waters constituted unpermitted “discharges” prohibited by Section

1311. See 84 Fed. Reg. at 16,820 n.4. Examples include:



where the defendant, “using a backhoe, breached

the wall of the reservoir causing the wastewater

to flow into Rockcamp Run,” 12-cr-243 D. Ct.

Doc. 1, at 4 (S.D. Ohio Nov. 29, 2012);



where the defendant’s hose “discharg[ed] dark,

foamy, and odiferous liquid into a wooded draw

which flowed downward into the Palestine Creek,”

12-cr-149 D. Ct. Doc. 8-1, at 2 (S.D. Iowa Oct. 25,

2012);



where methanol leaked from the defendant’s

tank, “breached containment, including a dike

wall, ran down the riverbank and discharged into

the Elk River,” 14-cr-275 D. Ct. Doc. 9, at 23

(S.D. W. Va Mar. 24, 2015); and



where boron ash wastewater flowed through a

drainage pipe that emptied into a slope approximately 15 yards uphill from a tributary of the

Sangamon River; and was pumped from an excavation onto parking lots, which then ran into the

Sangamon tributary, 06-cr-30002 D. Ct. Doc. 1,

at 5-6 (C.D. Ill. Jan. 5, 2006).

The EPA and the United States thus have previously

rejected, and continue to reject, the “terminal point

source” theory that any spatial gap between a point

35

source release and jurisdictional surface waters necessarily precludes application of NPDES requirements.

The releases at issue in this case were not subject to

NPDES requirements, however, because Congress addressed groundwater pollution through other CWA

mechanisms that recognize state primacy in this sphere,

rather than subsuming groundwater-protection efforts

within the NPDES program. Because the CWA “categorically excludes releases to and from groundwater

from the permitting requirements of the Act irrespective of the directness of the hydrological connection” between the groundwater and jurisdictional surface water, 84 Fed. Reg. at 16,820, the Court can resolve this

case without casting doubt on government enforcement

actions of the sort described above.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

MATTHEW Z. LEOPOLD

General Counsel

DAVID FOTOUHI

Principal Deputy General

Counsel

LAUREN T. MAHER

Attorney

U.S. Environmental

Protection Agency

MAY 2019

NOEL J. FRANCISCO

Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

ERIC GRANT

Deputy Assistant Attorney

General

ALLON KEDEM

Assistant to the Solicitor

General

DAVID S. GUALTIERI

Senior Counsel

APPENDIX

1.

33 U.S.C. 1311(a) provides:

Effluent limitations

(a)

Illegality of pollutant discharges except in compliance with law

Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title,

the discharge of any pollutant by any person shall be

unlawful.

2.

33 U.S.C. 1342(a)-(c) provides:

National pollutant discharge elimination system

(a)

Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of

this title, the Administrator may, after opportunity for

public hearing issue a permit for the discharge of any

pollutant, or combination of pollutants, notwithstanding

section 1311(a) of this title, upon condition that such

discharge will meet either (A) all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and

1343 of this title, or (B) prior to the taking of necessary

implementing actions relating to all such requirements,

such conditions as the Administrator determines are

necessary to carry out the provisions of this chapter.

(2) The Administrator shall prescribe conditions

for such permits to assure compliance with the requirements of paragraph (1) of this subsection, including conditions on data and information collection, reporting,

and such other requirements as he deems appropriate.

(1a)

2a

(3) The permit program of the Administrator under

paragraph (1) of this subsection, and permits issued

thereunder, shall be subject to the same terms, conditions, and requirements as apply to a State permit program and permits issued thereunder under subsection

(b) of this section.

(4) All permits for discharges into the navigable

waters issued pursuant to section 407 of this title shall

be deemed to be permits issued under this subchapter,

and permits issued under this subchapter shall be

deemed to be permits issued under section 407 of this

title, and shall continue in force and effect for their

term unless revoked, modified, or suspended in accordance with the provisions of this chapter.

(5) No permit for a discharge into the navigable

waters shall be issued under section 407 of this title after

October 18, 1972. Each application for a permit under

section 407 of this title, pending on October 18, 1972,

shall be deemed to be an application for a permit under

this section. The Administrator shall authorize a State,

which he determines has the capability of administering a permit program which will carry out the objectives of this chapter to issue permits for discharges into

the navigable waters within the jurisdiction of such State.

The Administrator may exercise the authority granted

him by the preceding sentence only during the period

which begins on October 18, 1972, and ends either on

the ninetieth day after the date of the first promulgation of guidelines required by section 1314(i)(2) of this

title, or the date of approval by the Administrator of a

permit program for such State under subsection (b) of

this section, whichever date first occurs, and no such

authorization to a State shall extend beyond the last

3a

day of such period. Each such permit shall be subject to

such conditions as the Administrator determines are

necessary to carry out the provisions of this chapter.

No such permit shall issue if the Administrator objects

to such issuance.

(b)

State permit programs

At any time after the promulgation of the guidelines

required by subsection (i)(2) of section 1314 of this title,

the Governor of each State desiring to administer its

own permit program for discharges into navigable

waters within its jurisdiction may submit to the Administrator a full and complete description of the program it

proposes to establish and administer under State law

or under an interstate compact. In addition, such State

shall submit a statement from the attorney general (or

the attorney for those State water pollution control

agencies which have independent legal counsel), or

from the chief legal officer in the case of an interstate

agency, that the laws of such State, or the interstate

compact, as the case may be, provide adequate authority to carry out the described program. The Administrator shall approve each submitted program unless

he determines that adequate authority does not exist:

(1)

To issue permits which—

(A) apply, and insure compliance with, any applicable requirements of sections 1311, 1312, 1316, 1317,

and 1343 of this title;

(B)

and

are for fixed terms not exceeding five years;

4a

(C) can be terminated or modified for cause including, but not limited to, the following:

(i)

violation of any condition of the permit;

(ii) obtaining a permit by misrepresentation,

or failure to disclose fully all relevant facts;

(iii) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge;

(D)

control the disposal of pollutants into wells;

(2)(A) To issue permits which apply, and insure

compliance with, all applicable requirements of section

1318 of this title; or

(B) To inspect, monitor, enter, and require reports

to at least the same extent as required in section 1318

of this title;

(3) To insure that the public, and any other State

the waters of which may be affected, receive notice of

each application for a permit and to provide an opportunity for public hearing before a ruling on each such

application;

(4) To insure that the Administrator receives notice of each application (including a copy thereof ) for a

permit;

(5) To insure that any State (other than the permitting State), whose waters may be affected by the

issuance of a permit may submit written recommendations to the permitting State (and the Administrator)

with respect to any permit application and, if any part

of such written recommendations are not accepted by

the permitting State, that the permitting State will no-

5a

tify such affected State (and the Administrator) in

writing of its failure to so accept such recommendations together with its reasons for so doing;

(6) To insure that no permit will be issued if, in

the judgment of the Secretary of the Army acting

through the Chief of Engineers, after consultation with

the Secretary of the department in which the Coast

Guard is operating, anchorage and navigation of any of

the navigable waters would be substantially impaired

thereby;

(7) To abate violations of the permit or the permit

program, including civil and criminal penalties and other

ways and means of enforcement;

(8) To insure that any permit for a discharge from

a publicly owned treatment works includes conditions

to require the identification in terms of character and

volume of pollutants of any significant source introducing pollutants subject to pretreatment standards

under section 1317(b) of this title into such works and a

program to assure compliance with such pretreatment

standards by each such source, in addition to adequate

notice to the permitting agency of (A) new introductions

into such works of pollutants from any source which

would be a new source as defined in section 1316 of this

title if such source were discharging pollutants, (B) new

introductions of pollutants into such works from a source

which would be subject to section 1311 of this title if it

were discharging such pollutants, or (C) a substantial

change in volume or character of pollutants being introduced into such works by a source introducing pollutants into such works at the time of issuance of the

permit. Such notice shall include information on the

quality and quantity of effluent to be introduced into

6a

such treatment works and any anticipated impact of such

change in the quantity or quality of effluent to be discharged from such publicly owned treatment works; and

(9) To insure that any industrial user of any publicly owned treatment works will comply with sections

1284(b), 1317, and 1318 of this title.

(c)

Suspension of Federal program upon submission

of State program; withdrawal of approval of State

program; return of State program to Administrator

(1) Not later than ninety days after the date on

which a State has submitted a program (or revision

thereof ) pursuant to subsection (b) of this section, the

Administrator shall suspend the issuance of permits

under subsection (a) of this section as to those discharges subject to such program unless he determines

that the State permit program does not meet the requirements of subsection (b) of this section or does not

conform to the guidelines issued under section 1314(i)(2)

of this title. If the Administrator so determines, he shall

notify the State of any revisions or modifications necessary to conform to such requirements or guidelines.

(2) Any State permit program under this section

shall at all times be in accordance with this section and

guidelines promulgated pursuant to section 1314(i)(2)

of this title.

(3) Whenever the Administrator determines after

public hearing that a State is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State

and, if appropriate corrective action is not taken within

a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program.

7a

The Administrator shall not withdraw approval of any

such program unless he shall first have notified the State,

and made public, in writing, the reasons for such withdrawal.

(4)

LIMITATIONS ON PARTIAL PERMIT PROGRAM

RETURNS AND WITHDRAWALS.—A State may return to

the Administrator administration, and the Administrator may withdraw under paragraph (3) of this subsection approval, of—

(A) a State partial permit program approved

under subsection (n)(3) of this section only if the entire permit program being administered by the State

department or agency at the time is returned or withdrawn; and

(B) a State partial permit program approved

under subsection (n)(4) of this section only if an entire phased component of the permit program being

administered by the State at the time is returned or

withdrawn.

3.

33 U.S.C. 1362 provides in pertinent part:

Definitions

Except as otherwise specifically provided, when used

in this chapter:

*

*

*

*

*

(7) The term “navigable waters” means the waters

of the United States, including the territorial seas.

(8) The term “territorial seas” means the belt of

the seas measured from the line of ordinary low water

8a

along that portion of the coast which is in direct contact

with the open sea and the line marking the seaward limit

of inland waters, and extending seaward a distance of

three miles.

(9) The term “contiguous zone” means the entire

zone established or to be established by the United

States under article 24 of the Convention of the Territorial Sea and the Contiguous Zone.

(10) The term “ocean” means any portion of the

high seas beyond the contiguous zone.

(11) The term “effluent limitation” means any restriction established by a State or the Administrator on

quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the

waters of the contiguous zone, or the ocean, including

schedules of compliance.

(12) The term “discharge of a pollutant” and the

term “discharge of pollutants” each means (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.

*

*

*

*

*