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

No. 18-260

In the

Supreme Court of the United States

COUNTY OF MAUI, HAWAI‘I,

Petitioner,

v.

HAWAI‘I WILDLIFE FUND; SIERRA CLUB–MAUI

GROUP; SURFRIDER FOUNDATION; WEST MAUI

PRESERVATION ASSOCIATION,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE FEDERAL

WATER QUALITY COALITION IN

SUPPORT OF PETITIONER

A. Bruce White

Counsel of Record

Fredric P. A ndes

A shley E. Parr

Barnes & Thornburg LLP

One North Wacker Drive, Suite 4400

Chicago, Illinois 60606

(312) 357–1313

bruce.white@btlaw.com

Counsel for Amicus Curiae

288656

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTERESTS OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Ninth Circuit’s “Traceability Theory”

Unconstitutionally Rewrites the Act . . . . . . . . . . 4

A. The Act’s Plain Language Does Not

Authorize Regulation of Releases

via Groundwater. . . . . . . . . . . . . . . . . . . . . . . 4

B. The Ninth Circuit’s “Traceability

Theory” Represents a Significant

Depa r ture from Established

Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. T h e N i n t h C i r c u i t ’s H o l d i n g

Misapplies Case Law to Support the

“Traceability Theory” . . . . . . . . . . . . . . . . . 8

D. The Ninth Circuit’s “Traceability

Theory” Contravenes Legislative

History and Usurps Congressional

Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii

Table of Contents

Page

II. Congress Intended for State Programs

and Other Federal Programs to Address

Groundwater Protection. . . . . . . . . . . . . . . . . . . 14

III. The “ Traceability Theory” Presents

Profound Practical Problems. . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Chesapeake Bay Found., Inc. v.

Severstal Sparrows Point, LLC,

794 F. Supp. 2d 602 (D. Md. 2011) . . . . . . . . . . . . . . . . 6

Concerned Area Residents for the Environment

v. Southview Farm,

34 F.3d 114 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 10

Greater Yellowstone Coalition v. Lewis,

628 F.3d 1143 (9th Cir. 2010) . . . . . . . . . . . . . . 9, 10, 20

Hawai‘i Wildlife Fund v. Cty. of Maui,

886 F.3d 737 (9th Cir. 2018) . . . . . . . . . . . . . . . . passim

Kelley v. United States,

618 F. Supp. 1103 (W.D. Mich. 1985) . . . . . . . . . . 13, 14

Kentucky Waterways All. v.

Kentucky Utilities Co.,

905 F.3d 925 (6th Cir. 2018) . . . . . . . . . . . . . . . . 8, 9, 18

League of Wilderness Defs./Blue Mountains

Biodiversity Project v. Forsgren,

309 F.3d 1181 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . 11

McClellan Ecological Seepage Situation v.

Weinberger,

707 F. Supp. 1182 (E.D. Cal. 1988) . . . . . . . . . . . . 8, 14

iv

Cited Authorities

Page

Peconic Baykeeper, Inc. v. Suffolk County,

600 F.3d 180 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 11

PennEnvironment v. PPG Indus., Inc.,

964 F. Supp. 2d 429 (W.D. Pa. 2013) . . . . . . . . . . . . . . 7

Rapanos v. United States,

547 U.S. 715 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Shanty Town Assocs. Ltd. P’ship v. EPA,

843 F.2d 782 (4th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . 7

Sierra Club v. Abston Const. Co.,

620 F.2d 41 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . 10, 11

Tennessee Clean Water Network v.

Tennessee Valley Auth.,

905 F.3d 436 (6th Cir. 2018) . . . . . . . . . . . . . . . . . . 8, 18

Tri‑Realty Co. v. Ursinus Coll.,

No. 11-5885, 2013 WL 6164092

(E.D. Pa. Nov. 21, 2013) . . . . . . . . . . . . . . . . . . . . . . . . 7

Trs. for Alaska v. EPA,

749 F.2d 549 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . 7-8

Umatilla Waterquality Protective Ass’n v.

Smith Frozen Foods, Inc.,

962 F. Supp. 1312 (D. Or. 1997) . . . . . . . . . . . . . passim

v

Cited Authorities

Page

United States v. Smithfield Foods, Inc.,

972 F. Supp. 338 (E.D. Va. 1997) . . . . . . . . . . . . . . . . 21

Upstate Forever v.

Kinder Morgan Energy Partners,

No. 17-1640 (4th Cir. Apr. 12, 2018) . . . . . . . . . . . 18, 19

Utility Air Regulatory Group v. EPA,

134 S. Ct. 2427 (June 23, 2014) . . . . . . . . . . . . . . . . . 22

Village of Oconomowoc Lake v.

Dayton Hudson Corp.,

24 F.3d 962 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 13

Washington Wilderness Coalition v.

Hecla Mining Co.,

870 F. Supp. 983 (E.D. Wash. 1994) . . . . . . . . . . . .6, 14

STATUTES AND OTHER AUTHORITIES

33 U.S.C. § 1251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

33 U.S.C. § 1251(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16

33 U.S.C. § 1252(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

33 U.S.C. § 1254(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

33 U.S.C. § 1311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

vi

Cited Authorities

Page

33 U.S.C. § 1329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

33 U.S.C. § 1362(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16

33 U.S.C. § 1362(12) . . . . . . . . . . . . . . . . . . . . . . 2, 4, 13, 16

33 U.S.C. § 1362(12)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

33 U.S.C. § 1367(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

33 U.S.C. § 1370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

42 U.S.C. § 300i(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

42 U.S.C. § 6973(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 9621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

40 C.F.R. § 122.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

40 C.F.R. § 264.92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

40 C.F.R. § 300.430 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

68 Fed. Reg. 7216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

84 Fed. Reg. 16810 (April 23, 2019) . . . . . . . . . . . . 8, 9, 14

84 Fed. Reg. 4154 (Feb, 14, 2019) . . . . . . . . . . . . . . . . . . . 5

vii

Cited Authorities

Page

118 Cong. Rec. 10,666 (1972) . . . . . . . . . . . . . . . . . . . 13, 14

Ariz. Rev. Stat. §§ 49-223–224 . . . . . . . . . . . . . . . . . . . . 17

Ariz. Rev. Stat. §§ 49-241–252 . . . . . . . . . . . . . . . . . . . . 17

D.C. Municipal Regulations Parts 1150–1158 . . . . . . . . 17

F.A.C. 62-621.300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Md. Code Ann., Envir. § 9-322 . . . . . . . . . . . . . . . . . . . . 17

MI Admin. Code R. 323.2201–2240 . . . . . . . . . . . . . . . . 17

N.C. Gen. Stat. § 143-215 . . . . . . . . . . . . . . . . . . . . . . . . . 17

N.M. Stat. Ann. §§ 74-6-3–4 . . . . . . . . . . . . . . . . . . . . . . 17

S. Rep. No. 414, 92d Congress, 1st Sess. 73 (1972) . . . . 13

S.C. Code Ann. § 48-1-10(2) . . . . . . . . . . . . . . . . . . . . . . . 17

S.C. Code Ann. § 48-1-10(20) . . . . . . . . . . . . . . . . . . . . . . 17

S.C. Code Ann. § 48-1-90(A)(1) . . . . . . . . . . . . . . . . . . . . 17

Summary of Key Existing CERLCA Policies for

Groundwater Restoration, OSWER Directive

9283.1-33 (June 26, 2009) . . . . . . . . . . . . . . . . . . . . . . 15

viii

Cited Authorities

Page

U.S. Code Cong. & Admin. News 1972 . . . . . . . . . . . . . 13

Va. Code Ann. § 62.1-254 . . . . . . . . . . . . . . . . . . . . . . . . . 17

W. Va. Code § 22-11-8(b) . . . . . . . . . . . . . . . . . . . . . . . . . 17

1

STATEMENT OF INTERESTS

OF AMICUS CURIAE1

Amicus Federal Water Quality Coalition (the

“Coalition”) is a group of industrial companies, municipal

entities, agricultural parties, and trade associations that

are directly affected, or have members that are directly

affected, by regulatory decisions made under the federal

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

Coalition member entities or their members own and

operate facilities located on or near waters of the United

States. These entities operate pursuant to individual

or general National Pollutant Discharge Elimination

System wastewater or stormwater permits, which impose

control requirements on the discharge of pollutants to

jurisdictional surface waters.

Regulation of releases of pollutants via groundwater

that have a “fairly traceable” connection to surface water

impacts Coalition member permits and the operation of

their facilities, as well as the entire National Pollutant

Discharge Elimination System permitting program

(“Program”). The Ninth Circuit decision, if upheld,

1. No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than the amicus curiae, or its counsel made a

monetary contribution to its preparation or submission. The Utility

Water Act Group and the Edison Electric Institute are members

of the Coalition but will be filing separate amicus briefs. The

Utility Water Act Group and the Edison Electric Institute are not

signatories to this amicus brief and have not made any monetary

contributions intended to fund the preparation or submission of

this brief. The parties have consented to the filing of this brief.

2

would require National Pollutant Discharge Elimination

System permits for releases to groundwater, which are

fairly traceable from a point source to a surface water

and more than de minimis, a position that would harm

Coalition members throughout the country by significantly

expanding the scope of regulated activity. The decision is

likely to lead to a substantial expansion of the activities

and operations that are subject to requirements under the

Program, which has never, until now, regulated releases

via groundwater. In light of the substantial impact this

case will have on its members, the Coalition has a direct

interest in maintaining the current, well-established

Program, which does not cover releases to groundwater

and which the Ninth Circuit decision will undermine if

not reversed.

SUMMARY OF ARGUMENT

The Ninth Circuit’s novel “traceability theory”—

recognizing Clean Water Act liability for releases of

pollutants that are fairly traceable from a point source

to a surface water via groundwater in greater than de

minimis amounts—unconstitutionally expands the scope

of EPA authority in direct conflict with the plain language

and Congressional intent of the Act. The Act regulates

discharges of pollutants from a point source to navigable

waters. 33 U.S.C.§ 1362(12). Groundwater, however, is

neither a point source nor a navigable water. Nonetheless,

the Ninth Circuit held that the Program covers releases

of pollutants from a point source that travel through

groundwater, a nonpoint source, into surface water.

Hawai‘i Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 749

(9th Cir. 2018). The Ninth Circuit’s holding would require

permits for releases of pollutants to groundwater that

3

are “fairly traceable” from the point source to navigable

waters, where the discharge is the functional equivalent of

a discharge into navigable waters and the pollutant levels

reaching navigable waters are more than de minimis. Id.

The Ninth Circuit decision rewrites the Act and

ignores legislative intent. The decision broadly and

unjustifiably expands the scope of the Program, thereby

affecting EPA, state agencies, and regulated entities,

including Coalition members, without any indication that

Congress intended such an effect. The Congressional

intent behind the Program, as well as the Act generally, is

to allow the states to take a primary role in the regulation

of pollutant discharges to their waters. 33 U.S.C. § 1251(b).

Further, the Ninth Circuit’s “traceability theory”

of liability is unnecessary to protect against pollution

of groundwater, because numerous federal and state

programs already regulate groundwater, including

releases via groundwater. Notably, the releases from

underground wells, at issue in this case, are regulated

pursuant to both the Safe Drinking Water Act and state

programs administered by the Hawai‘i Department of

Health.

Finally, expanding the Program to cover releases via

groundwater would have serious practical implications

for federal and state agencies and the regulated

community. No statutory or regulatory roadmap exists

for regulation of such releases via groundwater pursuant

to the “traceability theory.” Under the current Program,

applying the “traceability theory” of liability to releases

via groundwater would require site-specific, fact-intensive

inquiries involving complex, time-consuming, and costly

technical assessments.

4

Recognizing the “traceability theory” would require

an overhaul of the Program, which only Congress has

the authority to effect. Congress could do so by issuing

clear legislative directives authorizing EPA to establish

a comprehensive regulatory program covering releases

of pollutants via groundwater through National Pollutant

Discharge Elimination System permitting. In the

absence of such clear legislative directives, however, the

Ninth Circuit has no basis for supplementing the current

regulatory regime.

If broadly applied, the Ninth Circuit decision would

cause substantial and unwarranted changes in the

administration of the Program, contrary to the language

of the Act, as well as underlying Congressional intent. The

decision should be vacated.

ARGUMENT

I.

The Ninth Circuit’s “ Traceability Theor y”

Unconstitutionally Rewrites the Act.

A.

The Act’s Plain Language Does Not Authorize

Regulation of Releases via Groundwater.

The Act prohibits the “discharge of any pollutant”

except discharges that comply with the permitting, water

quality, and technology-based standards provisions of the

statute. 33 U.S.C. § 1311(a). As used in the Act, the phrase

“discharge of any pollutant” refers both to “any addition of

any pollutant to navigable waters from any point source”

and to “any addition of any pollutant to the waters of the

contiguous zone of the ocean from any point source other

than a vessel or other floating craft.” 33 U.S.C. § 1362(12).

5

The Act defines “navigable waters,” in turn, as

“waters of the United States, including the territorial

seas.” 33 U.S.C. § 1362(7). And, EPA has consistently

excluded groundwater from the definition of “waters of the

United States.” See 40 C.F.R. § 122.2. Consequently, Clean

Water Act jurisdiction does not extend to waters—such

as groundwater—that are not point sources or “navigable

waters.”

The Act defines “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. §

1367(14). Groundwater is not a “discernible, confined and

discrete conveyance,” so cannot be considered as a “point

source” by the Act’s own definition. Hawai‘i Wildlife Fund

v. Cty. of Maui, 886 F.3d 737, 745–46, n.2 (9th Cir. 2018)

(“We assume without deciding the groundwater here is

neither a point source nor a navigable water under the

[Act]”).

Consistent with longstanding Agency practice, EPA’s

new, proposed definition of “waters of the United States”

expressly excludes groundwater. See 84 Fed. Reg. 4154,

4190 (Feb, 14, 2019). The proposed rule explains, “The

agencies have never interpreted ‘waters of the United

States’ to include groundwater and would continue that

practice through this proposed rule by explicitly excluding

groundwater.” Id.

6

B. The Ninth Circuit’s “Traceability Theory”

Represents a Significant Departure from

Established Precedent.

The Act does not regulate groundwater as a “water of

the United States” or as a “point source,” and the existence

of non-jurisdictional groundwater between a point source

and a navigable water breaks the causal chain offederal

Clean Water Act jurisdiction over the release of pollutants

from a point source to a navigable water. The Ninth

Circuit’s “traceability theory” represents a significant

departure from well-established case law that recognizes

the limits of federal authority over the regulation of

releases via groundwater.

Under existing case law, natural or manmade surface

water bodies can themselves qualify as “point sources”

subject to regulation under the Act, if they function

as discrete, confined conveyances to “add” “pollutants

to navigable waters. See, e.g., Umatilla Waterquality

Protective Ass’n v. Smith Frozen Foods, Inc., 962 F.

Supp. 1312, 1320–21 (D. Or. 1997) (summarizing cases

from Ninth, Fifth and Tenth Circuit courts of appeals

and holding that an unlined brine pond constitutes a point

source but that the Program does not apply to releases

of pollutants via groundwater from such a point source);

Washington Wilderness Coalition v. Hecla Mining Co.,

870 F. Supp. 983, 988 (E.D. Wash. 1994) (finding “manmade ponds” to be point sources and citing Ninth, Fifth,

and Tenth circuit case law).

Groundwater itself is not a point source. See, e.g.,

Chesapeake Bay Found., Inc. v. Severstal Sparrows

Point, LLC, 794 F. Supp. 2d 602, 619–20 (D. Md. 2011)

7

(dismissing Clean Water Act citizen suit claim as baseless

because releases via migrations of groundwater or soil

runoff is not point source pollution); PennEnvironment v.

PPG Indus., Inc., 964 F. Supp. 2d 429, 454–55 (W.D. Pa.

2013) (citing the Tenth, Ninth, Fifth, and Second Circuits

to hold that “a ‘discharge’ occurring through migration

of groundwater. . . represents ‘nonpoint source’ pollution

because there is no ‘discernible, confined and discrete

conveyance.’”); Tri‑Realty Co. v. Ursinus Coll., No. 115885, 2013 WL 6164092, at *8 (E.D. Pa. Nov. 21, 2013)

(citing the Tenth, Ninth, and Second Circuits to hold that

“diffuse downgradient migration of pollutants on top of

or through soil and groundwater. . . is nonpoint source

pollution outside the purview of the [Act].”).

Existing case law clearly acknowledges that releases

via groundwater constitute nonpoint-source pollution.

Id. The Act “contains no mechanism for direct federal

regulation of nonpoint source pollution.” Shanty Town

Assocs. Ltd. P’ship v. EPA, 843 F.2d 782, 791 (4th Cir.

1988). As such, the Program cannot cover releases via

groundwater, because groundwater is a nonpoint source,

which is not directly subject to federal Clean Water Act

regulation. See id. The fact that a “fairly traceable” or

other hydrologic connection exists between groundwater

and navigable waters does not obviate the statutory

requirement that a regulated discharge of a pollutant

must enter navigable waters through a “discernible,

confined and discrete conveyance.” See 33 U.S.C. § 1367

(14). In other words, how a pollutant enters a navigable

water is determinative, and the distinction between

point and nonpoint sources depends on “whether the

pollution reaches the water through a confined, discrete

conveyance.” Trs. for Alaska v. EPA, 749 F.2d 549, 558

8

(9th Cir. 1984); see also 84 Fed. Reg. 16810, 16814 (April

23, 2019) (rejecting federal authority over releases via

groundwater).

C.

The Ninth Circuit’s Holding Misapplies Case

Law to Support the “Traceability Theory.”

As numerous courts have recognized, the Act does

not subject releases of pollutants to surface waters via

groundwater to the Program. E.g., Kentucky Waterways

All. v. Kentucky Utilities Co., 905 F.3d 925, 934 (6th Cir.

2018) (“The [Act]’s text also forecloses the hydrological

connection theory.); accord Tennessee Clean Water

Network v. Tennessee Valley Auth., 905 F.3d 436, 444 (6th

Cir. 2018); McClellan Ecological Seepage Situation v.

Weinberger, 707 F. Supp. 1182, 1193 (E.D. Cal. 1988). The

plaintiffs in Kentucky Waterways, like Respondents here,

place great weight on the fact that the Act’s prohibition

of unpermitted point source discharges “to navigable

waters,” does not include the adverb “directly.” See

id. at 934 (citing 33 U.S.C. § 1362(12)(A)). As the court

in Kentucky Waterways explains, however, the term

“directly” would be superfluous, because the term “into”

already suggests directness. Id. “It refers to a point of

entry.” Id. (citations omitted). Accordingly, “the phrase

‘into’ leaves no room for intermediary mediums to carry

the pollutants.” Id.

The Ninth Circuit cites Justice Scalia’s plurality

opinion in Rapanos v. United States, stating that the Act

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.’” Hawai‘i

Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 748 (9th Cir.

9

2018) (citing 547 U.S. 715, 743, (2006) (plurality opinion)).

The court in Kentucky Waterways responds to this point,

too, explaining that Justice Scalia’s “quote has been taken

out of context in an effort to expand the scope of the

Act well beyond what the Rapanos Court envisioned.”

Kentucky Waterways, 905 F.3d at 936.

Justice Scalia highlighted the absence of the word

“directly” from § 1362(12)(A) only to explain that the

Act covers pollutants traveling through multiple point

sources before discharging into navigable waters. Id.

(citing Rapanos, at 743). Justice Scalia’s language explains

that intermediary point sources do not break the chain

of Clean Water Act liability, but in no way suggests that

nonpoint sources would not break the chain of liability.

Id. Consistent with Justice Scalia’s rationale in Rapanos,

EPA’s recent Interpretive Statement clarifies this point:

“The 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. 16810,

16814 (April 23, 2019).

The Ninth Circuit cites several other cases in support

of its opinion recognizing jurisdiction over indirect

discharges, but such cases do not involve groundwater

and, indeed, support Petitioner’s distinction here between

point and nonpoint source pollution. For example, the

court relies on one of its own cases, Greater Yellowstone

Coalition v. Lewis, 628 F.3d 1143 (9th Cir. 2010). There,

the Ninth Circuit held that precipitation flowing into pits

containing “newly extracted waste rock,” “filter[ed]”

hundreds of feet underground, and “eventually entering

the surface water” did not constitute point source pollution

10

under the Act. Id. at 1147, 1153. In so holding, the court

explained that when rainwater runoff collects in a storm

drain before reaching surface water, it is a point source

discharge; when it filters through pits and the ground

prior to reaching surface water, it is nonpoint source

pollution. Id. at 1152–53. The court improperly likens the

stormwater drain system in Greater Yellowstone, which

was clearly a point source, to the groundwater here, which

courts consistently have held does not constitute a point

source. See Cty. of Maui, 886 F.3d at 746–47 (9th Cir.

2018). In fact, Greater Yellowstone draws precisely the

distinction between point and nonpoint source pollution

that Petitioner highlights here: the drain system in

Greater Yellowstone constitutes point source pollution,

while the releases via groundwater in Maui do not. The

Ninth Circuit’s inapt and unsupported comparison to

Great Yellowstone highlights the central issue with the

“traceability theory,” which ignores the jurisdictional

requirement that pollutants enter a navigable water

through a “discernible, confined and discrete conveyance.”

The Ninth Circuit also cites Concer ned Area

Residents for the Environment v. Southview Farm,

34 F.3d 114 (2d Cir. 1994), and Sierra Club v. Abston

Const. Co., 620 F.2d 41 (5th Cir. 1980), in support of

its novel “traceability theory.” Again, contrary to the

court’s suggestion, neither case involves a release from a

nonpoint source, such as groundwater. In Concerned Area

Residents, evidence showed that liquid manure pollution

reached navigable waters either directly from a tanker,

a point source, or through an intermediary ditch, also

a point source. 34 F.3d at 118–19 (“We believe that the

swale coupled with the pipe under the stonewall leading

into the ditch that leads into the stream was in and of

11

itself a point source.”). Similarly, Abston Construction

held that although the Act’s definition of “point source”

pollution excluded unchanneled and uncollected surface

waters, rainfall collected or channeled by coal miners in

connection with mining operations constitutes point source

pollution. Sierra Club v. Abston Const. Co., 620 F.2d 41,

45 (5th Cir. 1980) (explaining, “erosion of spoil pile walls

results in discharges into a navigable body of water by

means of ditches, gullies and similar conveyances, even if

the miners have done nothing beyond the mere collection

of rock and other materials.”). Unlike the releases here—

which travel via groundwater, a nonpoint source—the

releases at issue in Concerned Area Residents and Abston

of

Construction involve no break in the causal chain

federal Clean Water Act jurisdiction over the discharge of

pollutants from the point source to the navigable water.

Finally, the Ninth Circuit cites Peconic Baykeeper,

Inc. v. Suffolk County, 600 F.3d 180 (2d Cir. 2010), and

League of Wilderness Defs./Blue Mountains Biodiversity

Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002), in

support of its “traceability theory.” Neither of these

cases, however, involve groundwater as a theoretical

“point source.” In Peconic Baykeeper, the court held that

the trucks and helicopters used to spray the pesticides

were “point sources” for the purposes of the Act but

did not address whether a discharge of a pollutant to a

navigable water occurred from the point source. 600 F.3d

at 188-89; cf. League of Wilderness Defs./Blue Mountains

Biodiversity Project v. Forsgren, 309 F.3d 1181, 1192–93

(9th Cir. 2002) (holding that “the aerial spraying of

pesticide being conducted by the Forest Service is point

source pollution and requires an [National Pollutant

Discharge Elimination System] permit.”).

12

The cases cited by the Ninth Circuit are consistent

with Petitioner’s position that Congress intended to

regulate through the Act only those discharges of

pollutants from point sources to jurisdictional surface

waters. The rationale that Congress, implicitly and by

extension, intended to regulate releases of pollutants via

groundwater is conclusory, overly broad, and contrary to

the language of the Act. The court’s “traceability theory”

would profoundly frustrate the regulatory framework.

D.

The Ninth Circuit’s “Traceability Theory”

Contravenes Legislative History and Usurps

Congressional Authority.

In contrast to the Ninth Circuit’s arg uments

for coverage of g roundwater under the Act, the

constitutionally-sound rationale applied by other courts

highlights Congress’ intent not to extend the Act’s

jurisdiction to groundwater. Umatilla Waterquality,

962 F. Supp. at 1318 (explaining, “when Congress wanted

certain provisions of the [Act] to apply to groundwater,

it stated so explicitly.”). For example, in Umatilla, the

court pointed to 33 U.S.C. § 1252(a), which instructs EPA

to “develop comprehensive programs for preventing . . .

pollution of the navigable waters and ground waters . . .”

and to 33 U.S.C. § 1254(a)(5), which discusses “monitoring

the quality of the navigable waters and ground waters and

the contiguous zone and the oceans.”

The National Pollutant Discharge Elimination System

permitting provisions of the Act make no reference to

groundwater. The Act’s silence on groundwater in the

context of permitting highlights the lack of Congressional

intent for such permitting provisions to cover releases

13

of pollutant via groundwater, particularly in contrast

with the express references to groundwater elsewhere

in the statute. Id.; see also Kelley v. United States, 618 F.

Supp. 1103, 1105 (W.D. Mich. 1985) (discussing Congress’

inclusion of groundwater in research provisions of the

Act and choice not to include groundwater in regulatory

provisions). The Umatilla court also noted that, of the

four categories of water described throughout the Act—

navigable waters, groundwater, the contiguous zone,

and oceans—the definition of “discharge of a pollutant”

excludes groundwater while expressly including navigable

waters and waters of the contiguous zone and the ocean.

962 F. Supp. at 1318 (citing 33 U.S.C. § 1362(12)).

As a number of courts have pointed out, the legislative

history of the Act supports the plain-language reading

that the Act does not regulate groundwater. See Village of

Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962,

965 (7th Cir. 1994); Umatilla Waterquality, 962 F. Supp.

at 1318-19; Kelley, 618 F. Supp. at 1105–06. Indeed, the

report accompanying the Senate version of the Act shows

that Congress declined to regulate groundwater through

the Act because “jurisdiction regarding groundwaters is

so complex.” S. Rep. No. 414, 92d Congress, 1st Sess. 73

(1972), U.S. Code Cong. & Admin. News 1972, pp. 3668,

3749 (cited in Village of Oconomowoc Lake, 24 F.3d at 965;

Umatilla Waterquality, 962 F. Supp. at 1319; Kelley, 618

F. Supp. at 1105-06).

Additionally, Representative Aspin proposed an

amendment to include specific references to groundwater

and adding the term “ground waters” to the definition

of “discharge of pollutant” found in Section 502(12).

118 Cong. Rec. 10,666 (1972), 1 Leg. Hist. 589 (remarks

14

of Rep. Aspin). The House rejected the so-called

Aspin Amendment, which expressly sought to include

groundwater within the ambit of the Act. Id. at. 10,667,

1 Leg. Hist. 590-91 (remarks of Rep. Clausen) (cited in

Umatilla Waterquality, 962 F. Supp. at 1319; Washington

Wilderness Coalition, 870 F. Supp. at 989-90; McClellan

Ecological, 707 F. Supp. at 1194; Kelley, 618 F. Supp. at

1106).

Both the report accompanying the Senate’s version

of the Act and the House of Representatives’ rejection

of the Aspin Amendment evince a clear legislative intent

not to regulate releases of pollutants via groundwater

through the National Pollutant Discharge Elimination

System program.

II. Congress Intended for State Programs and Other

Federal Programs to Address Groundwater

Protection.

Since the Ninth Circuit’s decision recognizing the

“traceability theory” to conclude that the Petitioner’s

releases from underground injection wells required a

National Pollutant Discharge Elimination System permit,

EPA has issued a definitive Interpretive Statement

rejecting authority over such releases of pollutants via

groundwater. Specifically, the Interpretive Statement

announced that, “because the [Act] clearly evinces a

purpose not to regulate groundwater, and because

groundwater is extensively regulated under other

statutory regimes. . . groundwater is categorically

excluded from the [Act]’s coverage.” 84 Fed. Reg. 16810,

16814 (April 23, 2019).

15

As the Interpretive Statement explains, in contrast

to the Program, there are a number of federal programs,

within and outside the Act, that do address groundwater

concerns. Specifically, the Resource Conservation

and Recovery Act, the Comprehensive Environmental

Response, Compensation and Liability Act, and the Safe

Drinking Water Act all include express provisions for

the protection of groundwater. Similarly, RCRA contains

provisions, like the groundwater protections standard,

expressly aimed at groundwater protection. See 42 U.S.C.

§ 9621; 40 C.F.R. § 264.92.

For example, Resource Conservation and Recovery

Act remedial plans often require groundwater monitoring

to ensure acceptable pollutant levels in groundwater.

Further, the Comprehensive Environmental Response,

Compensation and Liability Act already specifically

establishes a groundwater classification system for

determining appropriate cleanup standards for the

removal or remediation of contaminated sites. See 42

U.S.C. § 6973(a); 40 C.F.R. § 300.430. Indeed, EPA has

stated that “[t]he mission of the Superfund program is to

protect human health and the environment. . . by restoring

contaminated groundwaters to beneficial use.” Summary

of Key Existing CERLCA Policies for Groundwater

Restoration, OSWER Directive 9283.1-33 (June 26, 2009).

Numerous Comprehensive Environmental Response,

Compensation and Liability Act remedial and removal

activities—including groundwater monitoring, pump

and treat systems, in situ treatment, and containment

using vertical engineered barriers—are aimed directly

at protecting groundwater.

16

The Safe Drinking Water Act also provides protection

to groundwater resources, through enforcement as to

actions that imminently and substantially endanger human

health. 42 U.S.C. § 300i(a). The Safe Drinking Water Act’s

approach to protecting drinking water also includes

regulatory programs, such as the Underground Injection

Control Program, that were expressly designed to protect

source water and groundwater from contamination.

Congress has already recognized the need to protect

groundwater and established programs to do so. The

specific references to groundwater protection in these

statutes, compared with the notable lack of reference

to groundwater in the National Pollutant Discharge

Elimination System permitting provisions of the Act,

highlight the significance of Congress’ decision to regulate

groundwater through certain federal programs but not

through the Program.

Furthermore, Congress enacted the Act with respect

for states’ inherent powers over local water resources by

limiting the Act’s scope to “waters of the United States.”

See 33 U.S.C. § 1362(7), (12). EPA has recognized that

safeguarding state authority to manage state waters is

one of the Act’s primary goals. 33 U.S.C. § 1251(b) (“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[.]”); see also

33 U.S.C. § 1329 (establishing state nonpoint source

management programs). The Ninth Circuit’s “traceability

theory” would deprive the powers that Congress intended

to leave to states.

As the legislative history detailed above demonstrates,

Congress did not design the Program to accommodate the

17

regulation of releases of pollutants via groundwater, but

left the issue to the states, many of which have implemented

their own programs to regulate groundwater. 2

Importantly, such state programs do not operate

like the Program. In fact, the state programs differ

widely, to address specific regional groundwater issues

in ways that the Program cannot. Notably, some of the

groundwater programs listed above require permits

for certain industrial activities affecting groundwater,

others establish groundwater quality standards, and

others prohibit specific practices such as underground

injection. The Act contemplates such regional regulation of

groundwater and expressly authorizes states to regulate

beyond the Act’s regulatory floor. 33 U.S.C. § 1370.

The Ninth Circuit’s decision—announcing federal

authority over releases of pollutants via groundwater—

upends the existing regulatory structure and frustrates

the cooperative federalism written into the Act.

2. See, e.g., Ariz. Rev. Stat. §§ 49-223–224, 49-241–252

(issuing “groundwater protection permits”); N.M. Stat. Ann. §§

74-6-3–4 (establishing a water quality control commission that

administers groundwater abatement and discharge plans); S.C.

Code Ann. §§ 48-1-90(A)(1), 48-1-10(2), (20) (requiring discharge

permits for “seep[age]”); W. Va. Code § 22-11-8(b) (regulating

underground injection of wastes); N.C. Gen. Stat. § 143-215

(establishing groundwater standards and regulating “waste not

discharged to surface waters”); Md. Code Ann., Envir. § 9-322

(requiring groundwater discharge permits for certain operations);

Va. Code Ann. § 62.1-254 (establishing the Groundwater Act of 1992

to “conserve, protect, and beneficially utilize the groundwater. .

. .”); D.C. Municipal Regulations Parts 1150–1158 (establishing

groundwater quality standards); MI Admin. Code R. 323.2201–

2240 (establishing a groundwater quality program); F.A.C. 62621.300 (administering groundwater discharge permits).

18

III. The “Traceability Theory” Presents Profound

Practical Problems.

Courts have reached different conclusions as to

the Act’s jurisdiction over releases of pollutants via

groundwater based largely on whether they focused on

the Act’s broad objectives or the Act’s plain language

and legislative history. On the one hand, courts—such as

the Sixth Circuit—that comprehensively considered the

Act’s text, structure, and legislative history, as well as the

programmatic and practical implications, hold that it does

not. Kentucky Waterways All., 905 F.3d at 937 (“Reading

the [Act] to cover groundwater pollution like that at

issue in this case would upend the existing regulatory

framework.”); Tennessee Clean Water Network, 905 F.3d

at 444 (“allowing the CWA to cover pollution of this sort

would disrupt the existing regulatory framework.”).

On the other hand, courts—such the Fourth and Ninth

Circuits—that have focused on the broad objective stated

in Section 101(a) rather than the plain language tend

to reach a contrary conclusion. Accordingly, the Ninth

Circuit’s focus on the Act’s broad objectives with little

regard for the practical applicability of the “traceability

theory” creates significant confusion and regulatory

uncertainty.

The Fourth Circuit recognized a theory similar to

the “traceability theory” in Upstate Forever v. Kinder

Morgan Energy Partners, ruling that an alleged discharge

of pollutants from a point source, which travelled a short

distance through groundwater to reach surface waters,

fell within the scope of the Act. No. 17-1640 (4th Cir. Apr.

12, 2018). The Fourth Circuit ruled that a point source

need not convey the pollutant-discharge to navigable

waters to trigger Program permitting requirements. Id.

19

Kinder Morgan involved an underground pipeline

rupture that spilled several hundred thousand gallons of

gasoline into groundwater, after which trace amounts of

gasoline migrated into surface waters. Clearly concerned

with remediation, the court recognized liability under the

Act. What the Fourth Circuit ignored, however, were the

state and federal regulatory schemes already in place to

address such releases. Indeed, the State of South Carolina

is actively overseeing the successful remediation of the

Kinder Morgan spill. States designed such programs to

address groundwater concerns, and there is simply no

need or justification for rewriting the Program to regulate

these releases through the Act.

Implementation of a federal permitting program for

groundwater would present daunting practical challenges.

None of the cases upholding the “hydrological connection

theory” or “traceability theory” establishes any roadmap

for regulation. Rather, the cases are fact-specific and have

extremely narrow and limited applicability in a regulatory

context. The application of such theories in a regulatory

context would require complex, time-consuming, and

costly technical assessments of site-specific factors, such

as topography, climate, the distance to a jurisdictional

surface water, geologic factors, and the like. See 68

Fed. Reg. at 7216 (“highly dependent on site-specific

variables”); Umatilla Waterquality, 962 F. Supp. at 1320

(noting that a groundwater’s connection to a surface water

is “often not obvious”).

To develop a regulatory program based on the

“traceability theory” or other similar theory, either a

court or the Agency would need to define what constitutes

a “fairly traceable” connection, which must necessarily

20

include the minimum distance between the groundwater

and the navigable water, the time for pollutants to travel

through groundwater, or some combination of spatial

and temporal factors. To date, factors that courts

have considered include distance to navigable waters,

the time it takes groundwater to travel, depth of the

groundwater, flow in terms of both direction and rate,

climate, geology, soil type, topography, elevation, and

slope. See, e.g, Greater Yellowstone Coal, 641 F. Supp. at

1138 (considering the travel time, distance, geology, flow,

and slope of the groundwater at issue). Each court that

has undertaken a scientific analysis of the groundwater at

issue has considered a different set of site-specific factors,

and it is not possible from analysis of these cases to deduce

any discernible rule. Absent a consistent, coherent set of

standard tests, each permittee would have to undertake

its own review, at the risk of criminal and civil liability,

to evaluate whether and how it would be regulated by the

Program for releases via groundwater.

Further, the “traceability theory” would significantly

expand the scope of regulation to include regulation

of sources that release pollutants via groundwater to

jurisdictional surface waters. For example, the Program

does not regulate releases of pollutants via groundwater

from public sewer systems, concentrated animal feeding

operations, retention ponds, surface impoundments,

ash ponds, underground storage tanks, septic tanks,

green infrastructure projects designed specifically to

infiltrate stormwater into the ground and groundwater,

accidental and historical releases, solid waste disposal

operations, and injection wells that discharge pollutants

to groundwater through various types of potentially

“discrete conveyances.” Pursuant to the “traceability

21

theory” or “hydrologic connection theory,” each of these

sources would require permitting for releases of pollutants

via groundwater to surface waters, which would require

a fact-specific determination for every single permittee.

Septic systems, for example, historically have not

required National Pollutant Discharge Elimination

System permits for releases of pollutants via groundwater.

United States v. Smithfield Foods, Inc., 972 F. Supp.

338, 345 (E.D. Va. 1997) (holding that septic systems are

nonpoint sources). To permit septic systems, or any of the

other traditionally nonpoint sources listed above, EPA

would have to develop, and states would have to adopt

and implement, an entirely new regulatory scheme that

attempts to regulate diffuse, nonpoint sources through a

permitting system developed specifically for point sources.

For example, EPA would need to establish a

regulatory scheme for determining where one would

monitor the point of “discharges” to groundwater, how one

would determine compliance with effluent limits, how one

would apply a mixing zone, and how one would consider

dilution and attenuation within the soil and groundwater

in determining the appropriate discharge limits. The

Act and the current Program regulations answer none

of these questions.

Additionally, such a change could potentially require

EPA and states to reevaluate, and possibly revise,

nearly every total maximum daily load that has been

adopted and approved nationwide (along with the load

and wasteload allocations contained in them), to account

for the astronomical influx of nonpoint sources into the

point-source permitting program. As the Supreme Court

22

recognized in Utility Air Regulatory Group v. EPA, only

Congress can establish such new regulatory programs.

134 S. Ct. 2427 (June 23, 2014) (rejecting EPA’s claim

of authority to rewrite statutory language to regulate

greenhouse gases under the Clean Air Act). Recognition

of the Ninth Circuit’s “traceability theory” absent a clear

Congressional directive and administrative rulemakings

to implement the theory creates significant confusion and

uncertainty such that imposing liability pursuant to the

“traceability theory” under the current Program would

deprive regulated entities of due process.

In accordance with Utility Air Regulatory Group

and separation-of-powers principles, this Court should

reject the Ninth Circuit’s judicial revision of the Act.

Beyond the constitutional considerations, the significant

practical issues associated with covering releases of

pollutants via groundwater through the current Program

further demonstrate that only Congress, not the judiciary,

can authorize EPA to regulate releases of pollutants

via groundwater. To do so, Congress would have to

issue clear legislative directives authorizing EPA to

establish a comprehensive regulatory program covering

releases of pollutants via groundwater through National

Pollutant Discharge Elimination System permitting. If

upheld, the Ninth Circuit decision would substantially

and unconstitutionally change the administration of

the Program in direct contravention of the Act’s plain

language, significant federal case law recognizing the

limits of EPA authority to regulate groundwater, and

legislative history.

23

CONCLUSION

For the foregoing reasons, the judgment below should

be vacated.

Dated this 16th day of May, 2019.

Respectfully submitted,

A. Bruce White

Counsel of Record

Fredric P. A ndes

A shley E. Parr

Barnes & Thornburg LLP

One North Wacker Drive, Suite 4400

Chicago, Illinois 60606

(312) 357–1313

bruce.white@btlaw.com

Counsel for Amicus Curiae