Amicus Curiae Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.
Supreme Court briefMay 16, 2019
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No. 18-260
IN THE
Supreme Court of the United States
————
COUNTY OF MAUI,
Petitioner,
v.
HAWAI’I WILDLIFE FUND; SIERRA CLUB –
MAUI GROUP; SURFRIDER FOUNDATION;
WEST MAUI PRESERVATION ASSOCIATION,
Respondents.
————
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
————
BRIEF OF WYCHMERE SHORES
CONDOMINIUM TRUST AND LONGWOOD
VENUES & DESTINATIONS, INC. AS
AMICI CURIAE IN SUPPORT OF PETITIONER
————
KEVIN M. MCGINTY
Counsel of Record
JEFFREY R. PORTER
ANDREW NATHANSON
EMILY KANSTROOM MUSGRAVE
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
One Financial Center
Boston, MA 02111
(617) 542-6000
kmcginty@mintz.com
Counsel for Amici Curiae
May 16, 2019
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................
ii
STATEMENT OF INTEREST OF
AMICI CURIAE ...............................................
1
SUMMARY OF ARGUMENT .............................
2
ARGUMENT ........................................................
4
I. Amici’s Circumstances Illustrate The
Extent To Which The HydrologicConnection Theory Will Expand The
Scope Of The NPDES Program ................
4
II. Adopting The Hydrologic-Connection
Theory Will Trigger A Broad Expansion
Of The NPDES Program And Threaten
The Interests Of Millions Of Parties Who
Have Historically Been Regulated By
The States .................................................
9
III. Rejecting The Hydrologic-Connection
Theory Is Consistent With The Express
Purpose Of The CWA, And Will Not
(As Some Have Claimed) Create A
“Loophole” Allowing The Unregulated
Pollution Of Navigable Waters ................
15
CONCLUSION ....................................................
21
(i)
ii
TABLE OF AUTHORITIES
CASES
Page(s)
Conservation Law Found. v. Longwood
Venues & Destinations, Inc. et al.,
No. 1:18-cv-11821-WGY (D. Mass. filed
Aug. 24, 2018).............................................
1
Exxon Corp. v. Train,
554 F.2d 1310 (5th Cir. 1977) ............. 11, 15, 16
Hawai’i Wildlife Fund v. Cty. of Maui,
886 F.3d 737 (9th Cir. 2018) ............. 6, 9, 12, 15
Kentucky Waterways All. v. Kentucky Utils. Co.,
905 F.3d 925 (6th Cir. 2018) .....................
16
Oregon Natural Desert Ass’n v.
United States Forest Serv.,
550 F.3d 778 (9th Cir. 2008) .....................
16
Tenn. Clean Water Network v.
Tenn. Valley Auth.,
905 F.3d 436 (6th Cir. 2018) .....................
16
Upper Blackstone Water Pollution
Abatement Dist. v. EPA,
690 F.3d 9 (1st Cir. 2012) .........................
8
Upstate Forever v. Kinder Morgan Energy
Partners, L.P.,
887 F.3d 637 (4th Cir. 2018) ........... 9, 10, 15–16
STATUTES AND REGULATIONS
33 U.S.C. § 1251 et seq .................................
19
§ 1251(b) (2011) ......................................... 14, 16
§ 1362(12) (2010) .......................................
12
iii
TABLE OF AUTHORITIES—Continued
Page(s)
310 Mass. Code Regs. 15.000 et seq. (2016) ...
19
314 Mass. Code Regs. 4.00 et seq. (2013) .....
19
4.01(4) (2013) ............................................
19
314 Mass. Code Regs. 5.00 et seq. (2016) .....
18
5.03 (2016) .................................................
18
5.05(1)(a) (2016) ........................................
18
5.10(3) (2016) ............................................ 19, 20
Mass. Clean Waters Act, Mass. Gen. Laws
ch. 21, § 26 .................................................
18
RULES
Fed. R. Civ. P. 34 ..........................................
8
COURT FILINGS
Am. Compl., Conservation Law Found. v.
Long-wood Venues & Destinations, Inc. et
al., No. 1:18-cv-11821-WGY (D. Mass.
filed March 12, 2019), ECF No. 34 ......... 2, 8, 10
Case Management Order, Conservation
Law Found. v. Longwood Venues &
Destinations, Inc. et al., No. 1:18-cv11821-WGY (D. Mass. Feb. 3, 2019), ECF
No. 30 ........................................................
8
Defs.’ Answer & Affirmative Defenses to
Pl.’s Am. Compl., Conservation Law Found.
v. Long-wood Venues & Destinations, Inc.
et al., No. 1:18-cv-11821-WGY (D. Mass.
Apr. 5, 2019), ECF No. 49.........................
5
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Mem. in Supp. of Defs.’ Mot. to Dismiss,
Conservation Law Found. v. Longwood
Venues & Destinations, Inc. et al., No.
1:18-cv-11821-WGY (D. Mass. Nov. 30,
2018), ECF No. 16 .....................................
7
OTHER AUTHORITIES
Cape Cod Commission, Regional Wastewater Management Plan, http://www.
capecodcommission.org/regionalplans/RW
MP (last visited May 13, 2019).................
18
Cape Cod Commission, Wastewater, http://
www.capecodcommission.org/index.php?
id=170 (last visited May 10, 2019) ...........
10
Interpretive Statement on Application of
the Clean Water Act National Pollutant
Dis-charge Elimination System Program
to Releases of Pollutants from a Point
Source to Groundwater, 84 Fed. Reg.
16,810 (Apr. 23, 2019) ...............................
7
Marc R. Poirier, Non-point Source Pollution,
in Env. Practice Guide (2008) ...................
16
Mass. Dep’t of Env. Prot., Massachusetts
Non-point Source Management Program
Plan 2014–2019 (2014) .............................
18
Mass. Dep’t of Env. Prot., Total Maximum
Daily Load for Total Nitrogen in Wychmere
Harbor (Feb. 2016) ....................................
6
v
TABLE OF AUTHORITIES—Continued
Page(s)
NOAA, National Coastal Population
Report: Population Trends from 1970 to
2020 (Mar. 2013) .......................................
11
S. Rep. No. 414, 92d Cong., 1st Sess. 73
(1971), reprinted in 1972 U.S. Code Cong.
& Admin. News 3739 ................................ 16–17
U.S. Dep’t of Hous. & Urban Dev. & U.S.
Census Bureau, American Housing Survey
for the United States: 2011 (2013) ...........
10
U.S. Env. Prot. Agency, Decentralized
Systems Technology Fact Sheet: Septic
Tank Soil Absorption Systems (Sept.
1999), https://www.h-gac.com/community/
water/ossf/DSTFS_Septic-Tank_Soil-Abs
orption-Systems.pdf .................................. 12, 13
STATEMENT OF INTEREST OF AMICI CURIAE1
Wychmere Shores Condominium Trust (the “Trust”)
owns, and Longwood Venues & Destinations, Inc.
(“Longwood”) operates, a resort in Harwich Port,
Massachusetts known as the Wychmere Beach Club.
The Beach Club is served by a wastewater treatment
facility that operates under an Individual Groundwater
Discharge Permit issued by the Massachusetts Department of Environmental Protection (“DEP”).
In 2018, amici and other parties were sued in the
United States District Court for the District of
Massachusetts by the Conservation Law Foundation
(“CLF”). Conservation Law Found. v. Longwood Venues
& Destinations, Inc. et al., No. 1:18-cv-11821-WGY
(D. Mass. filed Aug. 24, 2018).2 CLF’s “citizen suit” alleges
that amici and their co-defendants are violating the
Clean Water Act (“CWA”) because (i) while they possess
and operate under a permit from the state, they lack a
federal National Pollutant Discharge Elimination
System (“NPDES”) permit; (ii) one or more elements of
the wastewater treatment facility and its appurtenances is a “point source;” (iii) treated effluent from
the facility contains “pollutants” within the meaning
of the CWA; (iv) some of the treated effluent reaches
local groundwater after being diffused through the
wastewater treatment facility’s leach pits, surrounding
1
Counsel for all parties have consented in writing to the filing
of this brief. Pursuant to Rule 37.6, no counsel for any party
authored this brief in whole or part, and no counsel or party made
a monetary contribution to fund the preparation or submission
of this brief. No person other than amici and their counsel made
any monetary contribution to the preparation or submission of
this brief.
2
The other defendants are affiliated persons and entities, e.g.,
the trustees of the Trust.
2
crushed stone, and soil, as authorized by the state
permit, and (v) some of the allegedly affected groundwater eventually reaches Wychmere Harbor, which is
a “water of the United States.” Am. Compl. for Decl. &
Inj. Relief & Civil Penalties ¶¶ 1–9, Conservation Law
Found. v. Longwood Venues & Destinations, Inc. et al.,
No. 1:18-cv-11821-WGY (D. Mass. filed March 12,
2019), ECF No. 34 (“Amended Complaint”).
The complaint against amici tacitly admits that the
groundwater itself is not a water of the United States.
It alleges, rather, that the CWA applies to the wastewater treatment facility, and that amici therefore
need a federal NPDES permit, only because the local
groundwater is “hydrologically connected” to Wychmere
Harbor, and the groundwater thus is a “conduit”
between the alleged point source and a water of the
United States. Id. ¶¶ 5, 40.
The claims against amici depend on the viability of
the legal theory asserted by the Respondents in this
case, and adopted by the Ninth Circuit in the decision
under review. This Court’s decision, therefore, will
likely be completely dispositive of the case against
amici. Even if it is not conclusive, it will provide
important guidance to the trial court and, if necessary,
to the First Circuit.
SUMMARY OF ARGUMENT
I. Amici’s experiences as the owner and operator
of a state-permitted wastewater treatment facility,
and as the defendants to a citizen suit based on the
hydrologic-connection theory, are representative of
both the success of state regulation and the consequences of the application of the hydrologic-connection
theory.
3
II.A. The hydrologic-connection theory is inconsistent with the Clean Water Act, which memorializes
Congress’s intent to leave regulation of groundwater
to the states.
II.B. Adopting the hydrologic-connection theory
will trigger a broad expansion of the federal NPDES
program with the potential to ensnare millions of
wastewater disposal and treatment systems, simply
because such systems may have contact with local
groundwater, and the groundwater may be “hydrologically connected” to Waters of the United States.
II.C. The owners and operators of many wastewater
disposal and treatment systems will therefore be compelled either (i) to spend significant sums on testing to
determine whether their systems are hydrologically
connected to navigable waters and therefore covered
by the NPDES program, (ii) to spend significant sums
making “blind” and possibly-superfluous NPDES applications, or (iii) to expose themselves to the risk of
financially-crippling citizen suits (like the one currently pending against amici), which can be brought
without governmental oversight and which may be
brought for environmentally-unproductive or improper
reasons.
III. Expansion of the NPDES program is unnecessary, moreover, because rejecting the hydrologicconnection theory will not open a regulatory loophole,
as some courts fear. Amici’s experience demonstrates
that the remedial purposes of the Clean Water Act
can be effectuated without giving short shrift to the
“cooperative federalism” that is an organizing principle of the statute.
4
ARGUMENT
I. Amici’s Circumstances Illustrate The Extent
To Which The Hydrologic-Connection
Theory Will Expand The Scope Of The
NPDES Program.
The Wychmere Beach Club. In the scheme of
things, the Wychmere Beach Club is not a big business. It occupies twenty acres on Cape Cod and
operates for the most part during a season that runs
from April through November. The Beach Club hosts
about 140 private events (such as weddings and
corporate retreats) each year, and offers club amenities (e.g., swimming pools, fitness center, dining room,
childrens’ camp) to approximately 245 members. The
Beach Club also has eighteen guest rooms, which are
available only to members and event guests, and an
equivalent number of employee rooms. Neither the
guest rooms nor the employee rooms are occupied out
of season. Also on the property are residential condominiums.3 Except for the individual condominium
units, the Trust owns the property, which it purchased
in 2010, and Longwood has both managed the condominium and operated the event venue and the club
since then.
The Wastewater Treatment Facility. The Trust
also owns the on-site wastewater treatment facility
that serves the Beach Club. Longwood manages the
facility, primarily by contract with a local environmental engineering firm called Bennett Environmental
Associates, Inc. (“BEA”). BEA specializes in the operation and maintenance of wastewater treatment systems
3
For purposes of brevity, the term “Beach Club,” as used in
this brief, refers collectively to the event venue, the club, and the
residences.
5
and plants, and employs state-licensed wastewater
treatment operators for that purpose.
Wastewater generated by the Beach Club goes first
to one of three 22,000-gallon anoxic tanks for denitrification and the removal of solids. The effluent from
these three tanks is commingled in one 36,000-gallon
equalization tank, and from there it moves through
several additional stages of treatment:
• Placement in rotating biological contactors for
reduction of Biological Oxygen Demand (the
amount of oxygen needed to break down organic
material in the effluent) and the nitrification of
ammonia;
• Conveyance to a weir in which, as needed (including during low flow conditions), a chemical feed
adds carbon to sustain microbial growth and
treatment efficiency, improving denitrification;
• Recirculation to one of the anoxic tanks for
additional treatment as described above, or to
one of two secondary clarifiers for additional
solids removal;
• Conveyance to one of two tertiary dual media
filters, which can remove even very small
suspended solids; and finally,
• Placement in one of twenty-two concrete leaching pits, each one surrounded by crushed stone
in soil four inches above the highest groundwater elevation.4
4
Defs.’ Answer & Affirmative Defenses to Pl.’s Am. Compl.
¶ 46, Conservation Law Found. v. Longwood Venues & Destinations,
Inc. et al., No. 1:18-cv-11821-WGY (D. Mass. Apr. 5, 2019), ECF
No. 49.
6
The volume of wastewater handled, and of effluent
generated, by the wastewater treatment facility is
relatively small. The facility has the capacity to handle
a wastewater flow of up to 80,000 gallons per day
(“gpd”) but it generally operates well below that limit:
for example, in August 2018, at the height of the Beach
Club’s most recent summer season, the average wastewater flow was only 6,991 gpd. Cf. Hawai’i Wildlife
Fund v. Cty. of Maui, 886 F.3d 737, 742 (9th Cir. 2018)
(noting that Lahaina Wastewater Reclamation Facility
receives approximately 4 million gpd of sewage and
injects as much as 2.8 million gpd of effluent into
groundwater via its wells).
The Lack of a NPDES Permit. The wastewater
treatment facility at the Beach Club has an Individual Groundwater Discharge Permit issued by the
Massachusetts DEP. Neither amici nor their predecessors have ever sought or received a NPDES permit.
They have operated the facility solely under the
Massachusetts regulatory regime because they understood, and continue to understand, that state regulation
is both necessary and sufficient. This impression has
recently been confirmed to them at least three times,
in three different ways, by state and federal regulators.
First, in a report submitted to EPA in February
2016 on the Total Maximum Daily Load for Total
Nitrogen in Wychmere Harbor (“the TMDL Report”),
the Massachusetts DEP described the wastewater
treatment facility at the Beach Club as a “non-point
source.”5 Non-point sources are not covered by the
NPDES program. When it approved the Commonwealth’s TMDL Report, moreover, EPA agreed with
DEP’s characterization, referencing the “groundwater
5
Mass. Dep’t of Env. Prot., Total Maximum Daily Load for
Total Nitrogen in Wychmere Harbor (Feb. 2016).
7
discharge of wastewater treatment plant effluent” as
a non-point source.6
Second, in the Interpretive Statement it issued last
month on the application of the NPDES program to
releases of pollutants from a point source to groundwater, EPA surveyed the history of the program with
respect to mechanisms such as septic systems and
wastewater treatment facilities, and noted that “[t]o
date, neither EPA nor states have generally required
NPDES permits for these types of activities, and in
the select instances where NPDES permits have
been required for discharges from a point source that
reaches jurisdictional surface waters via groundwater, they have been based on site-specific factors.”
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, 16,812
(Apr. 23, 2019).
Finally, in response to a document subpoena issued
by amici and their co-defendants in the case against
them in the District of Massachusetts, EPA recently
affirmed that it has no records reflecting applications
for NPDES permits for septic systems or other systems
that discharge effluent to the ground or groundwater
in the Commonwealth of Massachusetts from January
1, 2009 to the present, and thus has no records
reflecting agency action on such applications, either.7
6
Mem. in Supp. of Defs.’ Mot. to Dismiss, Exs. A & B, Conservation Law Found. v. Longwood Venues & Destinations, Inc.
et al., No. 1:18-cv-11821-WGY (D. Mass. Nov. 30, 2018), ECF
No. 16.
7
If any such records existed, EPA would have them, because
Massachusetts, unlike most other states, does not administer the
8
The Lawsuit Against Amici. In October 2018,
CLF served amici and several co-defendants with a
complaint that asserted a “citizen suit” under the
CWA. The complaint, as since amended, alleges in
effect that possession of a state permit and compliance
with state regulation is not sufficient in these circumstances, and that the defendants have for years
violated (and are continuing to violate) the CWA by
operating the wastewater treatment facility without a
NPDES permit.8
The Amended Complaint seeks declaratory and
injunctive relief and also, pursuant to the statute, asks
the Court to award CLF both (i) its costs, including
investigative, attorney, witness, and consultant fees,
and (ii) penalties that range from $37,500 per day to
53,484 per day, depending on the date of the alleged
violation, over a period of more than ten years.9
This makes the case a potentially expensive proposition, but what makes it a currently expensive one is
the cost of litigating it under a schedule, set by the
District Court, that puts it on the trial list for
September 2019.10 CLF’s fact discovery, in addition to
the usual interrogatories and requests for admissions
and documents, has included a Federal Rule of Civil
Procedure 34 request for access to the Beach Club
property to perform several days of investigation,
NPDES program by delegation from the federal agency. Upper
Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9,
14 (1st Cir. 2012).
8
See generally Amended Complaint.
9
Id. ¶ 140.
10
Case Management Order, Conservation Law Found. v.
Longwood Venues & Destinations, Inc. et al., No. 1:18-cv-11821WGY (D. Mass. Feb. 3, 2019), ECF No. 30.
9
including (i) inspection of the wastewater treatment
facility, (ii) inspection of monitoring wells, (iii)
collection of treated sewage samples, (iv) water level
measurements and collection of groundwater samples
from existing wells, (v) construction of new boreholes
and groundwater sampling from them, (vi) observation of lithology, and (vii) water level measurement in
the new boreholes. CLF has hired a consultant to
perform this work, at its own initial expense, but if the
hydrologic-connection theory prevails and CLF wins the
lawsuit it will presumably seek reimbursement as
part of its “investigative . . . and consulting fees.”
II. Adopting
The
Hydrologic-Connection
Theory Will Trigger A Broad Expansion
Of The NPDES Program And Threaten
The Interests Of Millions Of Parties Who
Have Historically Been Regulated By The
States.
The hydrologic-connection theory is a blunt instrument, to say the least. As the Ninth Circuit has
articulated it, the theory requires only a point source,
a discharge to groundwater, and a “fairly traceable”
hydrologic connection between the groundwater and a
water of the United States. Hawai’i Wildlife Fund, 886
F.3d at 749.11 In the matter before the Court, the
hydrologic-connection theory has been applied to a
public wastewater treatment facility (2.8 million gpd),
id. at 742, but the lawsuit against amici evidences the
11
Other versions of the hydrologic-connection theory are
equally broad. For example, according to the Fourth Circuit, the
CWA applies whenever there is a point source, a discharge to
groundwater, and a “direct hydrological connection between
ground water and navigable waters.” Upstate Forever v. Kinder
Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018).
10
attempted application of the theory to a much smaller,
privately-owned facility (a maximum of 80,000 gpd),12
and nothing about the theory prevents or discourages
its application to even smaller and less sophisticated
on-site mechanisms, such as a septic system serving a
single household.
Adoption of the hydrologic-connection theory would
therefore presage a dramatic expansion of the scope of
the NPDES program. On Cape Cod, for example, there
are currently more than 123,000 on-site wastewater
systems, serving more than 80% of local businesses
and residences.13 Given the local geography and topography, one cannot rule out the possibility that a “fairly
traceable” or “direct” hydrologic groundwater connection exists between each of those systems and the
Waters of the United States that surround the Cape.
The nationwide percentage is lower—about 18% of
American homes had septic systems in 2017—but that
translates into more than 22 million systems that
discharge effluent to soil and then, potentially, to
groundwater.14
Because population tends to cluster near large
bodies of water, many of those millions of septic systems may “be sufficiently connected to navigable
waters,” Upstate Forever, 887 F.3d at 651, to displace
state regulation and to expose their owners to direct
federal regulation and liability under the CWA. For
example, in 2010 some 123.3 million people, or 39% of
12
Amended Complaint ¶ 60.
13
Cape Cod Commission, Wastewater, http://www.capecod
commission.org/index.php?id=170 (last visited May 10, 2019).
14
U.S. Dep’t of Hous. & Urban Dev. & U.S. Census Bureau,
American Housing Survey for the United States: 2011, at 14
(2013).
11
the nation’s population, lived in Coastal Shoreline
Counties that are directly adjacent to the open ocean,
major estuaries, and the Great Lakes, and 163.8
million people, or 52% of the population, lived in
Coastal Watershed Counties, a designation that
includes land areas within which a significant amount
of water drains into the ocean or Great Lakes.15
Congress never intended to give the NPDES program such a broad scope. Rather, as the Fifth Circuit
discovered when it reviewed the legislative history in
Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir. 1977),
the CWA embodies Congress’s unqualified intention
not “to interfere with or displace the ‘complex and
varied’ state jurisdictions over groundwaters,” id. at
1326; see also id. at 1331, but “to leave the establishment of standards and controls for groundwater pollution to the states . . . .” Id. at 1325. Congress, in other
words, made the deliberate choice to draw a single,
bright line between (i) discharges of pollutants into
navigable waters (subject to regulation under the
NPDES program), and (ii) discharges of pollutants
into groundwater (subject to state regulation).
Nothing in the CWA authorizes the courts to draw
yet another line between sub-classes of discharges in
the second category—e.g., between discharges into
groundwater that has and does not have a sufficient
(whatever that means) “hydrologic connection” to navigable waters. By adopting the hydrologic-connection
theory, then, the Ninth Circuit thwarted Congressional
intent and exceeded its legislative mandate.
15
NOAA, National Coastal Population Report: Population
Trends from 1970 to 2020, at 3–4 (Mar. 2013). These figures, moreover, do not include the millions of Americans who may live and work
far from the coasts but near to other Waters of the United States.
12
Just as important, if this Court adopts the
hydrologic-connection theory, it will imperil large
numbers of home and business owners across the
nation unless and until either Congress acts or the
judiciary engages in still more (and more detailed)
line-drawing exercises. But Congress has shown no
such inclination, and the courts may not find the task
easy to accomplish when acting, as courts must, on a
case-by-case basis. For example, in the decision
under review, the Ninth Circuit suggested that the
hydrologic-connection theory could be limited to
situations in which “the pollutant levels reaching
navigable waters are more than de minimis.” Hawai’i
Wildlife Fund, 886 F.3d at 748. As the Petitioner
points out in its brief, however, this restriction cannot
be squared with the statutory prohibition against
“any addition of any pollutant to navigable waters….”
33 U.S.C. § 1362(12) (2010) (emphasis added).
The Ninth Circuit’s inability to fashion a textuallyconsistent de minimis limitation illustrates how
difficult it may be for the courts to draw the kinds of
boundaries that would be needed to rein in the
hydrologic-connection theory. Until such limits are
set, however, the controlling version of the theory will
implicate parties like amici and millions of residential
septic-system owners, and thus will have pervasive
adverse effects. Many, if not most, on-site wastewater
systems employ soil absorption methods in which
treatment and disposal relies on gradual seepage from
leach fields or leach pits into surrounding soils.16
Even under the best of circumstances, such systems
16
U.S. Env. Prot. Agency, Decentralized Systems Technology
Fact Sheet: Septic Tank Soil Absorption Systems, EPA (Sept.
1999), https://www.h-gac.com/community/water/ossf/DSTFS_Sep
tic-Tank_Soil-Absorption-Systems.pdf.
13
include a “planned release” of effluent from the soil
into the groundwater.17 As long as these systems are
within shouting distance of an ocean, a bay, a river, or
even a wetland, they may have a hydrologic connection
to waters of the United States, and (if the theory holds
sway) they may therefore require a federal NPDES
permit.
Then again, they may not. In every case, the answer
to that question will be literally hidden underground.
The groundwater-that-runs-beneath-the-soil-that-liesbeneath-the-leach-field serving one home or business
may be connected to navigable water while—depending
on local hydrology—the groundwater under a
neighboring leach field may not. Consequently, even if
the Court could draw a clear distinction between the
degrees of hydrologic connections that will and will not
bring the NPDES program into play, the only way to
determine which side of the line any particular home
or business falls on would be to dig—or more precisely,
to engage experts to dig, and then to test, and then to
interpret the results. Governments and large businesses might be able to bear this expense, but it will
be an onerous if not a back-breaking burden for many
homeowners and small businesses, and the effort and
expense will be entirely wasted whenever the answer
turns out to be negative.
Millions of potentially-regulated parties will have
little choice but to shoulder this arbitrary burden,
however, because the alternatives to prophylactic testing and analysis are unpalatable. A business or
home owner could forego testing and file a “blind”
17
Id.
14
application for a NPDES permit, but the administrative process itself would be expensive for the
individual applicant and the collective burden on the
administering agencies would be even greater. To be
sure, a potentially-regulated party could forego both
testing and a NPDES application, and elect to await
instruction from the agencies before taking any action,
but it could do so only by exposing itself to the risk
that, before the government provides its guidance,
somebody will come along and file a citizen suit
requiring expensive litigation and—in the event of an
adverse outcome—statutory penalties.
None of this is required, or in amici’s opinion even
suggested, by the text of the CWA, and nothing in the
Ninth Circuit’s decision explains how such a regime is
supposed to be administered effectively or coherently,
in a way that would actually serve the remedial purposes of the statute, while at the same time respecting
the explicit legislative goal of avoiding undue federal
interference in areas of historic state regulation. 33
U.S.C. § 1251(b) (2011). It is no answer to say that, if
the Court simply enshrines the hydrologic-connection
theory in law, EPA can work out the details.
Redefining the limits of federal jurisdiction, and then
standing up and building out an administrative edifice
to implement a vast expansion of the NPDES program,
would be a herculean task, and even if EPA is given
the resources and capacity to do so eventually, the job
would take years.
In the meantime, it would fall to the judiciary
to adjudicate the cases brought to it. Those cases
will overwhelmingly (if not exclusively) be citizen
suits. Consequently, the exercise of “prosecutorial”
discretion for the newly-expanded NPDES program
would not be democratized so much as it would be
15
anarchized. Anybody who can satisfy the standing
requirements could invoke the hydrologic-connection
theory on the basis of virtually any motive—
impatience with the rate of regulatory progress,
dissatisfaction with the substance of regulatory
oversight, personal animus, or greed. Thus, millions of
business and home owners will be exposed to nuisance
claims, outright shakedowns, and misplaced lawsuits
that serve no real environmental purpose (because, for
example, they target a deep-pocketed defendant that
actually treats its wastewater and therefore makes
only a small contribution to the pollution of navigable
waters, while ignoring other, less affluent or riskaverse polluters whose contribution is much larger).
As long as the selection of cases depends on the
whims and predilections of private plaintiffs, moreover, the resulting patchwork of decisional law may
contain gaps and loopholes that will generate constant
jurisdictional conflicts between the NPDES program
and the “complex and varied” systems of state regulation. Even when those conflicts can be resolved, it will
create a “senseless bifurcation” of state and federal
jurisdiction on the basis of circumstances that Congress
never even considered. Train, 554 F.2d at 1330–31.
III. Rejecting The Hydrologic-Connection
Theory Is Consistent With The Express
Purpose Of The CWA, And Will Not (As
Some Have Claimed) Create A “Loophole”
Allowing The Unregulated Pollution Of
Navigable Waters.
The Ninth and Fourth Circuits have taken the position that rejecting the hydrologic-connection theory
would “make a mockery of the CWA’s prohibitions,”
Hawai’i Wildlife Fund, 886 F.3d at 752, and “greatly
undermine the [remedial] purpose of the Act,” Upstate
16
Forever, 887 F.3d at 652, because “if the presence of a
short distance of soil and ground water were enough
to defeat a claim, polluters could easily avoid liability
under the CWA by ensuring that all discharges pass
through soil and ground water before reaching navigable waters.” Id; see also Tenn. Clean Water Network
v. Tenn. Valley Auth., 905 F.3d 436, 449 (6th Cir. 2018)
(Clay, J., dissenting) (rejecting hydrologic-connection
theory would open a “gaping regulatory loophole”).
This “loophole” rationale has no basis in law or fact.
It is erroneous in the first instance because it misreads
the CWA, focusing on the statute’s remedial purposes
to the unwarranted exclusion of Congress’s express
intention to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution [and] to plan the development and use . . . of land and water resources.” 33
U.S.C. § 1251(b). The principle of “cooperative
federalism” that the CWA codified, Kentucky Waterways
All. v. Kentucky Utils. Co., 905 F.3d 925, 929 (6th Cir.
2018), becomes especially important where the type
of regulation at issue “depends on land use controls,
which are traditionally state or local in nature.” Oregon
Natural Desert Ass’n v. United States Forest Serv., 550
F.3d 778, 785 (9th Cir. 2008) (quoting Marc R. Poirier,
Non-point Source Pollution, in Env. Practice Guide
§ 18.13 (2008)).
Cooperative federalism is what impelled Congress to
eschew direct federal regulation of groundwater pollution in the first place, leaving that task to the “complex
and varied” regulatory structures that the states and
their municipalities had already erected and would
continue to maintain. Train, 554 F.2d at 1331 (quoting
S. Rep. No. 414, 92d Cong., 1st Sess. 73 (1971),
reprinted in 1972 U.S. Code Cong. & Admin. News
17
3739). The hydrologic-connection theory thus inserts
the federal NPDES program into what Congress has
clearly marked as state and local territory, and
nothing in the Ninth Circuit’s opinion—or in the opinions of the judges who have worried that respecting
the statutory boundary will create a “loophole” for
those they consider polluters—demonstrates a basis
for overriding Congress’s clearly-expressed intent.
That would be true even if one assumes that
Congress misjudged the states’ willingness and ability
to effectively regulate the groundwater within their
respective jurisdictions: where Congress has drawn a
line, the courts will not cross it. If the courts espousing
the “loophole” rationale made that unspoken assumption, moreover, they assumed facts not in evidence. As
far as amici are aware, nobody has yet suggested,
much less shown at any relevant level of generality,
that federal regulation will be more effective than
the existing framework of state regulatory regimes.
Adopting the hydrologic-connection theory would—for
amici and many similarly-situated parties—undeniably add a new level of expense and administrative
burden (not to mention the potential for crippling
penalties), but its impact on the environment, beneficial or otherwise, is purely a matter of speculation.
Amici believe that their experience in Massachusetts
demonstrates that the concerns underlying the
“loophole” rationale are in fact illusory. For one thing,
giving the Commonwealth primary responsibility for
the regulation of its groundwater, as Congress envisioned, has not excluded the federal government from
the process. Like Hawaii and every other state,
Massachusetts regulates its groundwater under the
federal statute, which gives the federal government a
meaningful, albeit indirect, role. In compliance with
18
the CWA, for example, the Massachusetts DEP has
issued, and EPA has approved, a Nonpoint Source
Management Program Plan for the Commonwealth.18
Among other things, the Massachusetts Plan designates
Cape Cod as a region that requires the development
and implementation of an area-wide waste management plan.19 In 2013, the Cape Cod Commission was
assigned that task and instructed specifically to
address nutrient pollution of the sort alleged in the
lawsuit against amici. Id. The Commission has been
actively carrying out this mandate, producing a
Regional Wastewater Management Plan that EPA will
also review and approve upon its completion. Id.20
The Commonwealth of Massachusetts, for its part,
takes its statutory responsibility seriously and does its
job well. The safe and environmentally sound operation of privately-owned, on-site septic systems and
wastewater treatment facilities is clearly a matter
of considerable importance to the Commonwealth,
which regulates these mechanisms as part of a robust
and comprehensive regime for the protection of its
groundwater. Wastewater treatment facilities like the
one that amici own and operate are subject to the
Commonwealth’s Ground Water Discharge Permit
Program. 314 Mass. Code Regs. 5.00 et seq. (2016),
Massachusetts Clean Waters Act, Mass. Gen. Laws ch.
21, § 26; see also 314 Mass Code Regs. 5.03, 5.05(1)(a)
(2016) (requiring a DEP permit for discharges of
18
See generally Mass. Dep’t of Env. Prot., Massachusetts
Nonpoint Source Management Program Plan 2014–2019 (2014).
19
20
Id. at 42.
See also Cape Cod Commission, Regional Wastewater
Management Plan, Cape Cod Commission (last visited May 13,
2019), http://www.capecod commission.org/regionalplans/RWMP
(last visited May 13, 2019).
19
pollutants to ground waters of the Commonwealth
except from a facility that discharges treated effluent
and is designed to receive and receives less than
10,000 gpd).21
The Ground Water Discharge Permit Program is
designed, among other things, to ensure that discharges
which reach groundwater do not subsequently cause or
contribute to violations of the Commonwealth’s regulatory standards for surface water quality. 314 Mass.
Code Regs. 4.00 et seq. (2013). The Massachusetts
Surface Water Quality Standards are in turn designed
“to secure to the Commonwealth the benefits of the
Clean Water Act, 33 U.S.C. § 1251 et seq.” 314 Mass.
Code Regs. 4.01(4) (2013) (describing the “Purpose” of
the Massachusetts Surface Water Quality Standards).
In order to achieve this goal, every Individual
Groundwater Discharge Permit the Massachusetts
DEP issues must “contain limits which are adequate
to protect surface waters for their existing and
designated uses and to assure the attainment and
maintenance of [the Massachusetts Surface Water
Quality Standards].” 314 Mass. Code Regs. 5.10(3)
(2016). In particular, the permit limitations must
“protect existing uses of hydrologically connected
downgradient ground waters and surface waters, and
shall not interfere with the maintenance and attainment of beneficial uses in hydrologically connected
downgradient waters.” Id.
21
Smaller treatment facilities and septic systems are covered
separately by the regulatory program commonly known as
“Title V.” 310 Mass. Code Regs. 15.000 et seq. (2016) (“Standard
Requirements for the Siting, Construction, Inspection, Upgrade
and Expansion of On-Site Sewage Treatment and Disposal
Systems and for the Transport and Disposal of Septage”).
20
Massachusetts, in other words, has a system in
place that not only regulates discharges of effluent
from wastewater treatment facilities, and not only
regulates such discharges for the purpose of protecting
groundwater that may come into contact with the
treated effluent, but also regulates such discharges
for the broader purpose of protecting surface waters,
including surface waters that may be affected because
they are “hydrologically connected” to the local
groundwater.
Amici’s wastewater treatment facility operates
within that system, under the terms of an Individual
Groundwater Discharge Permit that was most
recently renewed in November 2018. The Permit’s
General Conditions require compliance with various
statutory and regulatory provisions, but the Permit
also contains Special Conditions that include facilityspecific discharge limitations on various effluent
characteristics: flow, oil and grease, Total Suspended
Solids, Total Nitrogen, Nitrate-Nitrogen, Biochemical
Oxygen Demand, and pH value. The Special Conditions
also require periodic testing of both influent and
effluent at the facility, as well as regular analysis of
groundwater samples drawn from four permanent
monitoring wells located on the property.
The Commonwealth’s regulatory structure, in sum,
is reality-tested, consistent with cooperative federalism
and, perhaps most important, free of the administrative burdens and wasted expenditures that would
follow from the adoption of the hydrologic-connection
theory—a theory that permits federal regulation of
some groundwater, but not other groundwater, and
that requires this essential distinction to be made on
the basis of a latent characteristic that must be uncovered before it can effectively be discerned. Massachusetts
21
already regulates all of the groundwater in its jurisdiction, eliminating the need for such “senseless
bifurcations,” and since the Commonwealth regulates
its groundwater for, among other things, the express
purpose of protecting surface waters and securing the
benefits of the Clean Water Act, it does so in a way
that effectively promotes both the remedial and the
cooperatively-federalist goals of that statute.
CONCLUSION
Amici respectfully ask the Court to reverse the
judgment below.
Respectfully submitted,
KEVIN M. MCGINTY
Counsel of Record
JEFFREY R. PORTER
ANDREW NATHANSON
EMILY KANSTROOM MUSGRAVE
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
One Financial Center
Boston, MA 02111
(617) 542-6000
kmcginty@mintz.com
Counsel for Amici Curiae
May 16, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.