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

No. 18-260

IN THE

Supreme Court of the United States

_______________

COUNTY OF MAUI,

Petitioner,

v.

HAWAI’I WILDLIFE FUND, et al.,

_______________

Respondents.

On Writ Of Certiorari To The United States Court

Of Appeals For The Ninth Circuit

_______________

BRIEF OF TROUT UNLIMITED AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

_______________

ROY T. ENGLERT, JR.

Counsel of Record

JENNIFER S. WINDOM

JOHN B. GOERLICH*

ROBBINS, RUSSELL, ENGLERT,

ORSECK, UNTEREINER & SAUBER LLP

2000 K Street, NW

Washington, DC 20006

(202) 775-4500

renglert@robbinsrussell.com

Counsel for Amicus Curiae

Trout Unlimited

*Admitted only in New York. Practice

supervised by firm partners admitted

in the District of Columbia

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE.................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 2

ARGUMENT ............................................................... 5

I. RESPONDENTS’ PROPOSED

INTERPRETATION BEST COMPORTS WITH

THE ACT’S TEXT, STRUCTURE, AND

PURPOSE .............................................................. 5

A. Respondents’ Proposed Reading Is

Supported By The Act’s Plain Text .................. 6

B. Petitioner’s Proposed Interpretation Does

Not Comport With The CWA’s Plain Text....... 9

C. The Structure And Purpose Of The CWA

Support Respondents’ Reading ...................... 11

II. ADOPTING PETITIONER’S POSITION

WOULD INJURE THE NATION’S STREAMS,

RIVERS, AND LAKES ........................................ 14

III. PETITIONER AND ITS AMICI’S PARADEOF-HORRIBLES ARGUMENTS ARE

EXAGGERATED.................................................. 20

A. Petitioner, Not Respondents, Seeks To

Change The Status Quo Radically ................. 21

ii

TABLE OF CONTENTS—Continued

Page

B. Petitioner And Its Amici’s Supposed

Harms Have Not Transpired To Date ........... 24

C. Petitioner And Its Amici’s Speculative

Harms Are Unlikely To Materialize .............. 25

CONCLUSION .......................................................... 29

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Ali v. Fed. Bureau of Prisons,

552 U.S. 214 (2008) ................................................ 7

Barber v. Thomas,

560 U.S. 474 (2010) ................................................ 6

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ................................................ 5

Duncan v. Walker,

533 U.S. 167 (2001) ................................................ 5

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ...................................... 5, 13

Friends of Sakonnet v. Dutra,

738 F. Supp. 623 (D.R.I. 1990) ............................ 22

Graham Cty. Soil & Water Conservation

Dist. v. United States ex rel. Wilson,

545 U.S. 409 (2005) ................................................ 9

Harmelin v. Michigan,

501 U.S. 957 (1991) .............................................. 24

Hernandez v. Esso Std. Oil Co.,

599 F. Supp. 2d 175 (D.P.R. 2009) ...................... 21

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019) ............................................ 7

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) .............................................. 25

Idaho Rural Council v. Bosma,

143 F. Supp. 2d 1169 (D. Idaho 2001) ................. 22

Lamie v. U.S. Trustee,

540 U.S. 526 (2004) .............................................. 10

Loughrin v. United States,

573 U.S. 351 (2014) ................................................ 5

N. Cal. River Watch v. Mercer Fraser,

Co., No. 04-4620, 2005 WL 2122052

(N.D. Cal. Sept. 1, 2005) ...................................... 22

Nichols v. United States,

136 S. Ct. 1113 (2016) ............................................ 9

NLRB v. Sw. Gen., Inc.,

137 S. Ct. 929 (2017) ............................................ 13

Nw. Envtl. Def. Ctr. v. Grabhorn, Inc.,

No. 08-548, 2009 WL 3672895

(D. Or. Oct. 30, 2009) ........................................... 21

Pa. Dep’t of Corrections v. Yeskey,

524 U.S. 206 (1998) .............................................. 14

Perrin v. United States,

444 U.S. 37 (1979) .................................................. 5

v

TABLE OF AUTHORITIES—Continued

Page(s)

Rapanos v. United States,

547 U.S. 715 (2006) ...................................... 7, 9, 12

Rice v. Harken Exploration Co.,

250 F.3d 264 (5th Cir. 2001) ................................ 25

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) .............................................. 10

S.F. Herring Ass’n v. Pac. Gas & Elec.

Co., 81 F. Supp. 3d 847 (N.D. Cal.

2015) ..................................................................... 21

Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479 (1985) .............................................. 14

Sierra Club v. Abston Constr. Co.,

620 F.2d 41 (5th Cir. 1980) .................................. 22

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

145 F. Supp. 3d 601 (E.D. Va. 2015) ................... 21

Simmons v. Himmelreich,

136 S. Ct. 1843 (2016) .......................................... 25

Sturgeon v. Frost,

136 S. Ct. 1061 (2016) ............................................ 6

United States v. Gonzales,

520 U.S. 1 (1997) .................................................... 7

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Wash. State Dep’t of Licensing v. Cougar

Den, Inc.,

139 S. Ct. 1000 (2019) .......................................... 24

Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ...................................... 5, 11

Yadkin Riverkeeper, Inc. v. Duke Energy

Carolinas, LLC,

141 F. Supp. 3d 428 (M.D.N.C. 2015) ................. 21

Statutes

33 U.S.C. § 1251(a) ................................................ 2, 19

33 U.S.C. § 1251(a)(2) ........................................... 2, 15

33 U.S.C. § 1311(a) .............................................. 2, 5, 6

33 U.S.C. § 1342(a)(1) ................................................. 2

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

33 U.S.C. § 1362(14) .......................................... passim

Other Authorities

American Sportfishing Association,

Economic Contributions of

Recreational Fishing (Jan. 2019),

http://bit.ly/2LmgWkj........................................... 15

vii

TABLE OF AUTHORITIES—Continued

Page(s)

American Sportfishing Association,

Sportfishing in America: An

Economic Force for Conservation

(2018 ed.), http://bit.ly/2G4t7xV .......................... 15

City Comm’n of Bozeman, Mon.,

Comm’n Resolution No. 4972, (Jan.

28, 2019), http://bit.ly/2G5apGF .......................... 17

EPA 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.

16810 (Apr. 23, 2019) ........................................... 23

EPA Region 5, NPDES No. WI-00730591 Fact Sheet (Apr. 2011),

http://bit.ly/2YJYe9h ............................................ 22

EPA Region 6, First Five-Year Review

Report for Chevron Questa Mine

Superfund Site Taos Cty., N.M.

(June 28, 2017), http://bit.ly/2Loqlry................... 18

EPA Region 6, NPDES Permit No.

NM0022306 (issued Oct. 1, 2006),

http://bit.ly/2YuKmzE .......................................... 17

Montana Angler, East Gallatin River,

http://bit.ly/2NpdozE............................................ 17

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Outdoor Recreation Roundtable, The

Economic Impact of Outdoor

Recreation, http://bit.ly/2Xi8XX5 .................. 19, 20

ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION

OF LEGAL TEXTS (2012) ......................................... 13

State of New Mexico, Fishing in New

Mexico, http://bit.ly/2LCJ7Lr .............................. 18

Trout Unlimited: Celebrating the

Economic Impact of a Priceless

Jewel: The Economic Impact of

Trout Angling in the Driftless Area

(2016), http://bit.ly/2XyuKdb ......................... 20, 21

Trout Unlimited Ltr. to Bozeman City

Commission re: Riverside Sewer and

Water Dist. and Restoring the E.

Gallatin River (Jan. 25, 2019),

http://bit.ly/2YS2X92 ........................................... 16

Trout Unlimited Ltr. to EPA and Dep’t

of the Army re: Comments on the

Revised Definition of Waters of the

United States (Apr. 15, 2019),

http://bit.ly/32rLo1V ............................................ 16

ix

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Fish & Wildlife Serv., 2011 Nat’l

Survey of Fishing, Hunting, &

Wildlife-Associated Recreation

(2011), http://bit.ly/2xLyv4r ................................. 16

Webster’s Ninth New Collegiate

Dictionary (1989) ............................................... 7, 8

Webster’s Third New International

Dictionary (1976) ................................................... 7

1

BRIEF OF TROUT UNLIMITED AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

_________________

INTEREST OF THE AMICUS CURIAE 1

Trout Unlimited (“TU”) is the country’s largest

coldwater

fishing

conservation

organization,

representing 300,000 members and supporters

nationwide. Founded in 1959, TU is dedicated to

protecting and restoring North America’s coldwater

fisheries and their watersheds. TU’s members are

primarily trout and salmon anglers with an abiding

interest in and commitment to the health and quality

of the nation’s coldwater watersheds and habitats,

including rivers, streams, and lakes.

TU and its members have a significant interest in

the proper interpretation of the Clean Water Act

(“CWA” or the “Act”), including the robust operation

of its National Pollutant Discharge Elimination

System (“NPDES”). TU devotes significant resources

to monitoring and restoring downstream waters that

have been damaged by upstream pollution sources.

Whether working with farmers to restore headwater

streams in West Virginia, removing acidic pollution

caused by abandoned mines in Pennsylvania, or

protecting the world-famous salmon-producing,

14,000-jobs-sustaining watershed of Bristol Bay,

Alaska, TU relies on the CWA’s protections to

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

and no counsel for a party or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity other than amicus curiae or its counsel made a

monetary contribution to this brief ’s preparation or submission.

Petitioner and Respondents have consented to the filing.

2

safeguard its water quality investments and improvements.

And TU’s members depend on healthy

downstream fishing waters to drive the $50 billion

recreational fishing industry in the United States.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The CWA was designed to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). The Act seeks

to achieve water quality that “provides for the

protection and propagation of fish, shellfish, and

wildlife,” and “for recreation in and on the water.” Id.

§ 1251(a)(2). Few, if any, other federal statutes

explicitly place the interests of recreational anglers at

their core.

To achieve these goals, the Act categorically

prohibits the “discharge of any pollutant by any

person,” id. § 1311(a), and broadly defines “discharge

of a pollutant” as “any addition of any pollutant to

navigable waters from any point source,” id.

§ 1362(12)(A). A party is exempt from the prohibition

on point-source pollution only if it first obtains an

NPDES permit. Id. §§ 1311(a), 1342(a)(1).

The court of appeals correctly held that

unpermitted discharges of treated sewage from

Petitioner’s wastewater treatment facility injection

wells to the Pacific Ocean were unlawful under the

CWA. Petitioner does not dispute that its wells

constitute a “point source,” or that the Pacific Ocean

qualifies as “navigable waters” under the statute.

Petitioner also does not dispute that treated sewage

from all four of its injection wells entered the Pacific

Ocean, and that it lacked a permit for those

discharges.

3

Petitioner’s sole basis for challenging the decision

below is that its wells did not directly discharge the

sewage into the ocean, but instead discharged it

through groundwater to the ocean. Petitioner argues

that otherwise-unlawful discharges cannot be

regulated under the CWA as point-source pollution

unless the pollutants are conveyed directly from a

point source (or series of point sources) into the

navigable waters. Because its treated sewage flowed

through groundwater before reaching the ocean,

Petitioner contends that its wells did not discharge

directly to the navigable waters and are therefore

outside the scope of the Act’s permitting scheme.

1. Petitioner’s proposed interpretation of the

statute is contrary to the plain text of the CWA. The

Act broadly regulates “any addition”—from any point

source—of a regulated pollutant. Id. § 1362(12)(A).

The Court should apply the ordinary meanings of the

words “to” and “from” in the statute rather than

adopting Petitioner’s contorted constructions, and it

should reject Petitioner’s request to read the word

“directly” into the statute where no such requirement

appears. Moreover, Petitioner badly misconstrues the

word “conveyance” in the Act’s “point source”

definition; contrary to Petitioner’s claim, that word

does not mandate adopting a means-of-delivery test.

Petitioner’s proposed interpretation is also

inconsistent with the structure and purpose of the

Act. Although the Act does envision complementary

regulatory schemes, it creates a dichotomy between

regulation of point sources, on the one hand, and

regulation of nonpoint sources, on the other. It does

not, as Petitioner would have it, distinguish between

regulation of point sources that directly pollute

4

navigable waters and those that do so indirectly.

Moreover, placing Petitioner’s pollution outside the

scope of the statute would severely undermine the

purpose and structure of the statute.

2. Adopting Petitioner’s proposed interpretation

would remove important, longstanding protections

and cause negative consequences for downstream

waters and coldwater fisheries. The ripple effect of

such damage would harm the nation’s multi-billiondollar recreational fishing industry and the local

economies that it supports.

3. By contrast, the harms that Petitioner and its

amici posit would flow from the Court’s adoption of

Respondents’ interpretation of the statute are

speculative and unrealistic. Respondents’ proposed

reading of the statute is consistent with EPA’s past

guidance and decades of implementation of the

NPDES permitting system. Yet Petitioner’s alleged

harms have not been realized, and the Act’s other

limiting principles demonstrate that they are unlikely

ever to materialize.

5

ARGUMENT

I.

RESPONDENTS’

PROPOSED

INTERPRETATION BEST COMPORTS WITH THE

ACT’S TEXT, STRUCTURE, AND PURPOSE

This Court “begin[s], as always, with the language

of the statute.” Duncan v. Walker, 533 U.S. 167, 172

(2001). In this case, the relevant text consists of a

prohibition, a permitting scheme to negate that

prohibition in appropriate situations, and a definition.

The prohibition is against “discharge of any pollutant

by any person.” 33 U.S.C. § 1311(a) (emphasis added).

The permitting scheme is the NPDES. And the

definition is that “discharge of a pollutant” means

“any addition of any pollutant to navigable waters

from any point source,” id. § 1362(12)(A) (emphasis

added).

“[C]ourts must presume that a legislature says in

a statute what it means and means in a statute what

it says there.” Conn. Nat’l Bank v. Germain, 503 U.S.

249, 253-54 (1992); see also, e.g., Loughrin v. United

States, 573 U.S. 351, 360 (2014). The Court’s “job is

to interpret the words [in a statute] consistent with

their ‘ordinary meaning . . . at the time Congress

enacted the statute.’” Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067, 2070 (2018) (quoting Perrin v. United

States, 444 U.S. 37, 42 (1979)); see also Food Mktg.

Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364

(2019) (“In statutory interpretation disputes, a court’s

proper starting point lies in a careful examination of

the ordinary meaning and structure of the law

itself.”).

Interpreting a few ordinary words to have their

ordinary meaning suffices to resolve this case.

Reading “the words of a statute . . . in their context

and with a view to their place in the overall statutory

scheme,” Sturgeon v. Frost, 136 S. Ct. 1061, 1070

6

(2016) (internal quotation marks omitted), only

reinforces the conclusion evident from the words

“any,” “from,” and “to.” And the “history[] and

purpose” of the relevant provisions, Barber v. Thomas,

560 U.S. 474, 488 (2010), provide more confirmation

still.

Each consideration relevant in statutory

interpretation points toward the same conclusion:

The CWA forbids point sources from discharging,

without a permit, pollutants that pass through

groundwater into the navigable waters. Hook, line,

and sinker: Respondents’ proposed interpretation is

clearly the correct one.

A. Respondents’ Proposed Reading

Supported By The Act’s Plain Text

Is

At its core, the CWA bans the discharge of

harmful pollutants into the navigable waters of the

United States without a permit.

With limited

exception, the Act renders “the discharge of any

pollutant by any person . . . unlawful.” 33 U.S.C.

§ 1311(a). The statute broadly defines the discharge

of a pollutant to include “any addition of any pollutant

to navigable waters from any point source.” Id.

§ 1362(12)(A) (emphasis added). The Act in turn

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.” Id. § 1362(14).

7

The question for the Court is straightforward: For

an NPDES permit to be required, must the point

source convey the harmful pollutant directly into the

navigable waters, as Petitioner contends, or does a

point source “discharge” a pollutant within the

meaning of the statute when it emits the pollutant

and the pollutant then travels through groundwater

into the navigable waters, as Respondents advocate?

To resolve that question, the Court need not look

beyond the plain text of the statute. Congress chose

to define “discharge of a pollutant” expansively and

without specifying how the addition of the pollutant

to the navigable waters must occur. See 33 U.S.C.

§ 1362(12)(A) (referring to “any addition of any

pollutant”) (emphasis added); see also Rapanos v.

United States, 547 U.S. 715, 723 (2006) (plurality op.)

(Scalia, J.) (“discharge of a pollutant” is “defined

broadly” in the Act). As this Court has observed, “the

word ‘any’ has an expansive meaning, that is, ‘one or

some indiscriminately of whatever kind.’” United

States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting

Webster’s Third New International Dictionary 97

(1976)); accord Webster’s Ninth New Collegiate

Dictionary 93 (1989). This Court has repeatedly

recognized the word’s expansive scope. See, e.g., Ali v.

Fed. Bureau of Prisons, 552 U.S. 214, 220 (2008)

(“any” in conjunction with “law enforcement officer”

was “most naturally read to mean law enforcement

officers of whatever kind”). “In ordinary language,

replacing ‘the Xs’ with ‘any X’ will often make the term

‘X’ go from covering only paradigm instances of X to

covering all cases.” Home Depot U.S.A., Inc. v.

Jackson, 139 S. Ct. 1743, 1757 (2019) (Alito, J.,

dissenting).

Here, “any” modifies the word “addition,” which

itself is an inherently broad term, commonly

understood to mean “the act or process of adding.”

8

Webster’s Ninth New Collegiate Dictionary 55.

Congress could have chosen to regulate only certain

conduct that led to a proscribed increase in the level

of pollutants in the navigable waters; instead, it chose

a word that encompasses all increases by all possible

means. Congress’s chosen means of keeping the

statute from sweeping too expansively is not a narrow

definition of “discharge” or a narrow prohibition of

such discharges. It is instead a broad definition and

a broad prohibition, coupled with a permitting

program. This form of regulation—as familiar as “no

driving without a license” or “no fishing without a

permit”—is not to be undermined by engrafting

artificial limitations onto the prohibition.

Petitioner focuses on the statute’s requirement

that the pollutant emanate “from” a point source (Pet.

Br. 28-32), yet it ignores the ordinary meaning of that

word as well. “From” is “used as a function word to

indicate a starting point” or, alternatively, “the

source, cause, agent or basis.” Webster’s Ninth New

Collegiate Dictionary 494. Moreover, the word “to”—

which

Petitioner all

but

ignores—indicates

“movement or an action or condition suggestive of

movement toward a place, person, or thing reached”

or “addition, attachment, connection, belonging,

possession, accompaniment, or response.” Id. at 123839. Taken together and applying their ordinary

meanings, these two words require nothing more than

some movement of the pollutant from a point source

to navigable waters.

Notably absent is any

specification as to how the pollutant must reach the

navigable waters, let alone a requirement that the

pollutant move directly “from” the point source “to”

the navigable waters.

This understanding is confirmed by commonplace

illustrations. For example, an individual purchasing

shoes from an online retailer, such as Zappos,

9

ordinarily would characterize the shoes as from

Zappos, even though UPS may in fact have delivered

the shoes to his or her home. As another example, a

chef may send a special dish to a restaurant patron;

the diner regards that dish as having come from the

chef, even though a waiter delivers it to the table.

(Indeed, after an especially good meal, diners offer

their compliments to the chef, not to the waiter who

delivered the dish.) Similarly, no one, upon seeing oil

sitting on the surface of a lake, would dream of stating

that the oil was from the groundwater it flowed

through to reach the lake, as opposed to the leaking

oil well a quarter-mile away.

Respondents’

proposed

interpretation

is

supported by the plain text of the statute and

comports with the ordinary meaning of the words

chosen by Congress. That Congress chose such

expansive phrasing should deter this Court from

ascribing atextual limitations to it.

B. Petitioner’s Proposed Interpretation

Does Not Comport With The CWA’s Plain

Text

Petitioner and its amici misconstrue the plain

language of the relevant statutory provisions in at

least three significant respects:

First, Petitioner reads the word “directly” into the

statute where no such requirement exists.

Cf.

Rapanos, 547 U.S. at 743 (plurality op. of Scalia, J.).

This Court has frequently cautioned against adding

requirements nowhere found within the plain

language of the statute. See, e.g., Nichols v. United

States, 136 S. Ct. 1113, 1118 (2016) (“declin[ing] the

Government’s invitation to add an extra clause to [42

U.S.C.] § 16913(a)”); Graham Cty. Soil & Water

Conservation Dist. v. United States ex rel. Wilson, 545

U.S. 409, 417 (2005) (in construing False Claims Act’s

10

statute of limitations, criticizing dissent for reading

the word “suspected” into statute); Lamie v. U.S.

Trustee, 540 U.S. 526, 538 (2004) (“Petitioner’s

argument stumbles on still harder ground in the face

of another canon of interpretation. His interpretation

of the Act—reading the word ‘attorney’ in

§ 330(a)(1)(A) to refer to ‘debtors’ attorneys’ in

§ 330(a)(1)—would have us read an absent word into

the statute”). So too here.

Second, Petitioner misconstrues the meaning of

the word “conveyance” within the definition of “point

source.” “[P]oint source” is defined, in relevant part,

as “any discernible, confined and discrete conveyance

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

33 U.S.C. § 1362(14) (emphasis added). Petitioner

argues that the point source must be the object that

“convey[s]” the pollutant into the navigable waters.

Pet. Br. 29-30. But the remainder of this definition—

i.e., “from which pollutants are or may be

discharged”—makes clear that the “conveyance”

addressed by that provision is that which moves the

pollutant out of the point source and into the world.

In other words, a pollutant obviously must exit the

point source to be regulated under the Act.

Petitioner’s proposed interpretation fails to read this

provision in its proper context. Cf. Robinson v. Shell

Oil Co., 519 U.S. 337, 341 (1997). Furthermore,

Petitioner again adds words to the statute that simply

are not there. “[P]oint source,” according to Petitioner

but not Congress, means “any discernible, confined

and discrete conveyance . . . from which pollutants are

or may be discharged directly into navigable waters.”

The impossibility of Petitioner’s interpretation is

confirmed by the examples of point sources identified

in 33 U.S.C. § 1362(14). One ordinarily would not

expect “well[s],” “container[s],” “rolling stock,” and

“concentrated animal feeding operation[s]” (id.) to

11

deliver pollutants directly to navigable waters, though

one can concoct scenarios where they might—perhaps

a train car could spring a leak just as it crosses a

bridge, or a container placed on land could have an

overhanging edge that leaked into a harbor. But the

mere need to contrive such farfetched scenarios to

prevent those examples from being read out of Section

1362(14) provides additional support for Respondents’

reading of the statute.

Finally, Petitioner claims that, “[t]ime and again,

the CWA describes a point source discharge—i.e., a

‘discharge of pollutants’—as the release of pollutants

‘into’ navigable waters by point sources.” Pet. Br. 3637 (emphasis added). But “discharge of pollutants” is

a defined term in the statute (33 U.S.C.

§ 1362(12)(A)), and the definition refers to any

addition “to navigable waters,” not “into navigable

waters.” Therefore, even if the Court agrees with

Petitioner that “into” requires a direct entry point

(and it should not), it is not the statute that Congress

wrote. Again, it speaks volumes that Petitioner feels

compelled to change the words of the statute (even if

subtly) to make its argument.

C. The Structure And Purpose Of The CWA

Support Respondents’ Reading

Upstream without a proverbial textual paddle,

Petitioner argues that its means-of-delivery test is

also consistent with the structure and purpose of the

Act. Pet. Br. 34-36, 41-44. It is wrong on both

accounts.

1. This Court examines statutory structure when

construing an individual provision within a statute,

see, e.g., Wis. Cent., 138 S. Ct. at 2074 (referencing

“textual and structural clues”). Here, the structure of

the CWA also supports Respondents’ reading. As

Petitioner acknowledges, e.g., Pet. Br. 34-36, the CWA

12

sets out a clear dichotomy between point-source and

nonpoint-source pollution, with point-source pollution

being subject to NPDES requirements and nonpointsource pollution being generally regulated by other

federal statutes or by the states. Respondents’

reading preserves that dichotomy; traceable

discharges that are “from” a point source are subject

to NPDES requirements, while those that are so

diffuse that they cannot be traced back to a single,

discrete source are outside the scope of

Section 1362(12)(A).

Accepting Petitioner’s interpretation, by contrast,

would eliminate this clear structure. Consider, for

example, a healthy, popular fishing stream with a

self-sustaining population of native brook trout in the

wilds of West Virginia, with a mine leaking pollutants

200 feet away. Petitioner’s interpretation would have

NPDES requirements apply only if the mine owner

was foolish enough to dump pollutants directly into

the stream. However, if the mine was instead

designed to leak those same pollutants first into

groundwater, which then flowed into the trout stream,

an NPDES permit would not be required. (The trout,

of course, would be harmed just the same in either

scenario.)

Adopting Petitioner’s interpretation would all but

guarantee that the concerns expressed by Justice

Scalia in the plurality opinion in Rapanos—that

polluters would be free to discharge pollution through

other media (such as groundwater) or into noncovered

intermittent waters that lie upstream of covered

waters,

technically

evading

the

permitting

requirement, so long as the discharge was not directly

into the covered waters—would come to fruition. See

Rapanos, 547 U.S. at 742-43. The result that Justice

Scalia feared in Rapanos and the result of a ruling in

13

favor of Petitioner in this case would be the same:

harmful pollutants discharged from a point source

would pollute the nation’s navigable waters.

Petitioner’s interpretation would eliminate the

point-source/nonpoint-source dichotomy that the Act

currently envisions—and that Respondents’ reading

maintains—for a direct-delivery/indirect-addition

dichotomy that appears nowhere in the text or

structure of the CWA.

2. If a statutory provision’s meaning is clear based

on an examination of its text and structure, “judges

must stop,” instead of continuing on to analyze

legislative purpose and history. Food Mktg. Inst., 139

S. Ct. at 2364; see also, e.g., NLRB v. Sw. Gen., Inc.,

137 S. Ct. 929, 941-42 (2017) (the Court “need not

consider [] extra-textual evidence” such as purpose if

“[t]he text is clear”). Text is purpose made manifest.

See ANTONIN SCALIA & BRYAN A. GARNER, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS 56 (2012)

(“The difference between textualist interpretation and

so-called purposive interpretation is not that the

former never considers purpose. It almost always

does. . . . [T]he purpose must be derived from the text,

not from extrinsic sources such as legislative history or

an assumption about the legal drafter’s desires.”

(emphasis added)).

Even if this Court does not stop with the plain

text, it is clear that Respondents’ reading—not

Petitioner’s—far better advances the Act’s twin

purposes of eliminating the discharge of harmful

pollutants and achieving fishable waters. Congress

could not possibly have intended to let polluters avoid

permitting simply by, for example, moving their

discharge pipe back a mere few feet from the water’s

edge so that it did not discharge directly into the

navigable waters. Nor could Congress have intended

14

to carve out and exclude from the Act’s protection the

pollution involved in this case, i.e., the discharge from

a well—a point source enumerated in the statute—of

over 3,000 gallons of regulated sewage per meter of

coastline per day. Placing this kind of pollution

outside of the scope of the NPDES requirements does

not advance the Act’s aims of eliminating point-source

pollution and providing for the protection and

propagation of fish and other wildlife; instead, it

severely impairs them.

Congress was not unaware that there might be

circumstances in which a discharge is justified. But

its chosen means to account for that consideration,

again, was to create the NPDES permitting system,

not to place limitations on the key prohibition in the

Act, phrased in intentionally broad terms. As Justice

Scalia once wrote for a unanimous Court in a situation

in which there was far more reason to doubt

Congress’s intentions than there is in this case, “the

fact that a statute can be ‘applied in situations not

expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.’” Pa. Dep’t

of Corrections v. Yeskey, 524 U.S. 206, 212 (1998)

(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,

499 (1985)).

II. ADOPTING

PETITIONER’S

POSITION

WOULD INJURE THE NATION’S STREAMS,

RIVERS, AND LAKES

Petitioner and its amici suggest that the negative

effects of excluding certain point-source pollution

from NPDES permitting would be confined to

groundwater and groundwater alone. See, e.g., Pet.

Br. 41, 44; Brief of Amici Curiae Nat’l Conf. of State

Legis. et al. in Support of Petitioner at 23-24; Brief for

Amici Curiae Kinder Morgan Energy Partners, L.P.

and Plantation Pipe Line Co., Inc. in Support of

Petitioner at 6-9. But this very case—in which

15

pollution migrated through groundwater to the Pacific

Ocean—demonstrates that this position does not

reflect reality.

Indeed, adopting Petitioner’s

interpretation would directly threaten the health of

the nation’s fishing waters by giving polluters a clear

loophole to avoid NPDES requirements. This would

in turn reduce the substantial economic benefits that

the nation as a whole reaps from recreational fishing

activity.

1. It is commonly said that “We all live

downstream.” No one understands that better than

the estimated 49 million recreational anglers living in

the United States.

See American Sportfishing

Association, Sportfishing in America: An Economic

Force for Conservation (2018 ed.) (“ASA 2018 Report”)

at 2, http://bit.ly/2G4t7xV (citing Recreational

Boating and Fishing Foundation Report (2018)).

Recreational fishing is the nation’s second most

popular outdoor activity after jogging. Id. at 3 (citing

Outdoor Industry Association’s Outdoor Participation

Report (2017)).

In 2016, recreational fishing

generated more than $49 billion in retail sales

(American Sportfishing Association, Economic

Contributions of Recreational Fishing (Jan. 2019)

(“ASA 2019 Report”) at 1, http://bit.ly/2LmgWkj, and

contributed $125 billion to the national economy, id.

(citing ASA 2018 Report). From jobs tied directly to

fishing—such as boat and gear manufacturers, tackle

shops, and guides—to jobs that benefit indirectly from

fishing—such as restaurants, shops, and tourist

sites—recreational fishing activity aids our nation’s

economy in a major way.

Of course, all of this economic activity requires

that there first be fish present in the water to catch.

And that, in turn, requires that the fishing waters be

healthy enough to sustain fish and other wildlife. To

advance its stated goal to “protect[] and propagat[e]

16

. . . fish, shellfish, and wildlife” (33 U.S.C.

§ 1251(a)(2)), the Act must be able to control pollution

at its upstream source—before it enters the

watershed and flows downstream to pollute major

streams, rivers, and bays.

Certain fish populations—including trout—are

particularly vulnerable to point-source pollution.

Trout fishing accounts for approximately 25% of all

angler activity, see U.S. Fish & Wildlife Serv., 2011

Nat’l Survey of Fishing, Hunting, & WildlifeAssociated Recreation (2011) at 12, http://bit.ly/

2xLyv4r, and native trout need the coolest, cleanest

waters to thrive. Headwaters must be clean, as they

serve as the primary spawning and rearing grounds

for trout, salmon, and other wild and native fish. But

trout need healthy downstream waters as well; as a

species, trout are highly sensitive to the warming

temperatures and associated habitat degradation

caused by downstream pollution. See, e.g., Trout

Unlimited Ltr. to EPA and Dep’t of the Army re:

Comments on the Revised Definition of Waters of the

United

States

(Apr.

15,

2019)

at

6,

http://bit.ly/32rLo1V.

2. Two case studies demonstrate the importance

of the Act’s NPDES requirements in preserving the

health of downstream fishing waters and sustaining

fish and wildlife:

First, the Riverside Sewer and Water District

(“RSWD”) discharge to the East Gallatin River near

Bozeman, Montana, presents a cautionary tale about

the harm that can befall fishing waters when harmful

pollutants

are

unlawfully

discharged

into

groundwater that then flows downstream. RSWD

operates a wastewater treatment facility that

discharges about 20,000 gallons of sewage each day

into groundwater, with additional nitrogen and

phosphorus passing daily into the East Gallatin River

17

through that groundwater. See Trout Unlimited Ltr.

to Bozeman City Commission re: Riverside Sewer and

Water Dist. and Restoring the E. Gallatin River (Jan.

25, 2019) (“TU Bozeman Letter”) at 1,

http://bit.ly/2YS2X92.

RSWD’s discharge is

unpermitted; in Montana, the EPA has delegated

authority to the state Department of Environmental

Quality (“DEQ”) to issue NPDES permits and, to date,

RSWD and DEQ have failed to properly apply the

Act’s requirements.

The East Gallatin River is historically a popular

trout fishing stream, home to populations of rainbow

and brown trout; fly fishing guides have praised the

river’s “very large trout.” Montana Angler, East

Gallatin River, http://bit.ly/2NpdozE.

Recently,

however, there have been reports of a persistent

ammonia smell, high algal growth, and poor water

quality in the river. TU Bozeman Letter at 1. During

the summer, water quality has become so poor that

trout downstream from the RSWD apparently have

fled the affected reach. Id. TU and others are

currently seeking to require that DEQ and RSWD

comply with the Act’s NPDES requirements in an

attempt to eliminate or slow the negative effects of

RSWD’s harmful pollutant discharges on the fish and

wildlife in the river. See, e.g., City Comm’n of

Bozeman, Mon., Comm’n Resolution No. 4972, at 1-4

(Jan. 28, 2019), http://bit.ly/2G5apGF.

By contrast, the Questa mine case study

illustrates how NPDES regulation of pollution

discharged into groundwater can assist in preserving

downstream fishing waters. In 2006, the EPA issued

an NPDES permit to the Questa mine facility near

Taos, New Mexico. That permit regulates treated mill

waste discharges into groundwater that subsequently

flows into the Red River. See EPA Region 6, NPDES

Permit No. NM0022306 (issued Oct. 1, 2006) at Part

18

II.D, http://bit.ly/2YuKmzE (recognizing “permit

prohibits the discharge to the Red River of pollutants

traceable to point source mine operations except in

trace amounts” and requiring facility to “maintain

and properly operate seepage interception systems to

prevent discharges of process related ground water to

the Red River”).

The Red River is a designated coldwater fishery

and home to a state fish hatchery. EPA Region 6,

First Five-Year Review Report for Chevron Questa

Mine Superfund Site Taos Cty., N.M. at 4 (June 28,

2017), http://bit.ly/2Loqlry. It is also a source of water

for smaller lakes near the mine site, including popular

fishing spots. Id. Yet constant breakage of the tailing

pipeline at the Questa mine from 1966 to 1991

resulted in numerous spills of pollutants into the Red

River and its floodplain. Id. at 5.

Following NPDES permitting and other EPA

oversight, measurable improvements have been

observed in the river’s water quality and the health of

the fish population living there. In fact, one portion of

the river is designated by the State of New Mexico as

a “Special Trout Water.” State of New Mexico,

Fishing in New Mexico, http://bit.ly/2LCJ7Lr. Indeed,

where the Red River merges with the Rio Grande—

downstream

from

where

the

groundwater

contaminated by the mine would flow into the Red

River—New Mexico has created a special “Wild and

Scenic Rivers Area”; it has particularly good fishing

and stunning views. Id.

It is no exaggeration to observe that such

relatively unspoiled wilderness can exist—and bring

with it all the positive economic effects described

above—at least in part because the Questa mine is

subject to NPDES permitting. When the Act’s NPDES

permitting requirements are properly enforced,

downstream fishing waters are preserved. On the

19

other hand, a decision in favor of Petitioner in this

case would likely place RSWD’s pollution beyond the

ambit of the CWA and allow RSWD to continue to

destroy the health of the East Gallatin River and the

fish that live there. And it would leave private parties

like TU without any legal recourse at all.

3. The harm caused by the unregulated discharge

of point-source pollution into downstream fishing

waters extends beyond fish and wildlife; it also

negatively affects every business and community that

depends economically on a thriving recreational

fishing industry. Again, recreational fishing is a

multi-billion-dollar industry; without healthy fish and

fishing waters, that industry will suffer, causing jobs

to disappear and hurting many local communities

that rely on the health of rivers, streams, and lakes.

Moreover, coldwater conservation’s benefits are

not confined to fishing and fishing-adjacent activities;

tourists nationwide take trips to visit lakes and rivers,

and thousands of campgrounds, hiking trails, and

other types of outdoor recreation depend crucially

upon conservation of coldwater streams, ponds, and

lakes. Outdoor recreation as a whole has an enormous

effect upon the American economy; in 2016, it

accounted for 2.2% of the United States’ GDP (a

similar amount as, for example, the broadcasting and

telecommunications industries), and its annual gross

output was over $730 billion. Outdoor Recreation

Roundtable, The Economic Impact of Outdoor

Recreation at 1-2, http://bit.ly/2Xi8XX5. A ruling in

favor of Petitioner in this case would allow polluters

to despoil those outdoor areas, thereby further

reducing the economic benefits associated with clean

water.

Preserving the health and quality of the nation’s

rivers and lakes is not just mandated by the textual

command of the CWA to “restore and maintain the

20

chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). It also makes

good economic sense. For example, over the past

decade, TU has worked to restore the watersheds and

improve the water quality of the Driftless Area, a

major fishery in the northern Midwest. See Brief of

Trout Unlimited et al. as Amici Curiae in Support of

Respondents at 19-20, Murray Energy Corp. v. EPA,

No. 15-3751 (6th Cir. Jan. 20, 2017) (“TU Murray

Amicus Br.”).

The trout fishing has improved

dramatically—some streams have seen a ten-fold

increase in trout populations from pre-restoration

numbers. The restoration efforts also have proven a

good investment: For every dollar spent on

restoration, an additional $24.50 has been returned to

the surrounding economy on an annual basis. Id. at

20. Overall, trout fishing in the Driftless Area

provides a $1 billion-plus economic benefit to the

region.

See Trout Unlimited: Celebrating the

Economic Impact of a Priceless Jewel: The Economic

Impact of Trout Angling in the Driftless Area at 2

(2016), http://bit.ly/2XyuKdb.

III. PETITIONER AND ITS AMICI’S PARADEOF-HORRIBLES ARGUMENTS ARE EXAGGERATED

Faced with no support from the statute’s text, and

evidence that disrupting existing CWA protections

would injure the nation’s waterways and related

economies, Petitioner and its amici attempt to conjure

up their own parade of horribles. But Respondents’

position has been the law of the land for more than 25

years, and none of the adverse consequences

Petitioner and its amici envision has been realized.

Moreover, Petitioner and its amici’s own briefs betray

the contingent nature of the harm they predict; many

of the supposedly disastrous effects of affirming the

21

decision below turn out, upon closer inspection, to

require additional adverse rulings or interpretations

far beyond the scope of the issue currently before the

Court.

A. Petitioner, Not Respondents, Seeks To

Change The Status Quo Radically

Contrary to what Petitioner and its amici appear

to believe, it is their proposed interpretation of the

Act, and not the interpretation offered by

Respondents, that would work a radical change in the

CWA’s enforcement. In its amicus brief in support of

Respondents in this case before the Ninth Circuit,

EPA conceded that its “longstanding position has been

that point-source discharges of pollutants moving

through groundwater to a jurisdictional surface water

are subject to CWA permitting requirements” so long

as “there is a ‘direct hydrological connection’ between

the groundwater and the surface water.” Brief for the

U.S. as Amicus Curiae in Support of PlaintiffsAppellees at 22, Haw. Wildlife Fund v. County of

Maui, No. 15-17447 (9th Cir. May 31, 2016) (“EPA 9th

Cir. Br.”). EPA observed that it had “repeatedly

articulated this view in multiple rulemaking

preambles,” citing examples from 1990, 1991, and

2001. Id. at 22-24.

But EPA did not stop with merely characterizing

its earlier position. It also noted that “the majority of

the courts that have addressed this issue . . . [have]

concluded that discharges that move from a point

source to jurisdictional surface waters via

groundwater with a hydrological connection are

subject to regulation under the CWA.” Id. at 18 (citing

Sierra Club v. Va. Elec. & Power Co., 145 F. Supp. 3d

601 (E.D. Va. 2015); Yadkin Riverkeeper, Inc. v. Duke

Energy Carolinas, LLC, 141 F. Supp. 3d 428

(M.D.N.C. 2015); S.F. Herring Ass’n v. Pac. Gas &

22

Elec. Co., 81 F. Supp. 3d 847 (N.D. Cal. 2015);

Hernandez v. Esso Std. Oil Co., 599 F. Supp. 2d 175

(D.P.R. 2009); Nw. Envtl. Def. Ctr. v. Grabhorn, Inc.,

No. 08-548, 2009 WL 3672895 (D. Or. Oct. 30, 2009);

N. Cal. River Watch v. Mercer Fraser, Co., No. 044620, 2005 WL 2122052 (N.D. Cal. Sept. 1, 2005);

Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169

(D. Idaho 2001)). And, as EPA also observed, courts

have found that the CWA’s NPDES permitting

requirement extends to situations analogous to the

circumstances presented here, including “discharges

from mining operations that traveled to navigable

waters in part through surface runoff,” EPA 9th Cir.

Br. 14-15 (citing Sierra Club v. Abston Constr. Co., 620

F.2d 41, 44-45 (5th Cir. 1980)), and a discharge of

“‘raw sewage [that] was running directly from the

leaching field, on the surface of the ground for

approximately 250 feet, into the [surface water],’”

EPA 9th Cir. Br. 15 (quoting Friends of Sakonnet v.

Dutra, 738 F. Supp. 623, 628, 630 (D.R.I. 1990)).

Indeed, existing NPDES permits reflect an

understanding that the CWA does in fact regulate

point-source pollution that travels indirectly to

navigable waters. The Questa mine NPDES permit,

discussed supra at 17-18, is one such example. As

another example, EPA issued an NPDES permit in

2011 to the Menominee Neopit Wastewater

Treatment Facility in Wisconsin, based on data

showing that the groundwater beneath the site “has a

direct hydrologic connection to the adjacent surface

water, the navigable waters of Tourtillotte Creek.”

EPA Region 5, NPDES No. WI-0073059-1 Fact Sheet

(Apr. 2011) at 2, http://bit.ly/2YJYe9h; see generally

Brief of Amici Curiae Former EPA Staff in Support of

Respondents (listing examples of existing NPDES

23

permits reflecting Respondents’ interpretation of the

Act).

Of course, EPA now contends that discharges of

pollutants from a point source to groundwater fall

outside the coverage of the NPDES permitting

program.

See EPA 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. 16810 (Apr. 23, 2019). That development

occurred during the late stage of this litigation. But

EPA’s post litem motam conversion cannot change the

facts that Respondents’ interpretation was EPA’s own

settled interpretation for 25+ years, that this

interpretation has been upheld by multiple federal

courts, and that many pollutant discharges into

groundwater are currently regulated by NPDES

permit. Thus, contrary to Petitioner’s claims, this

case is about Petitioner seeking to strip away existing

protections, not Respondents seeking to expand them.

Whatever may be the proper level of “deference”

to either EPA’s prior interpretation or lower courts’

decisions upholding that interpretation (an issue this

brief does not address), the heretofore-settled state of

the law is significant because it proves that no “parade

of horribles” has followed or will follow from rejecting

Petitioner’s and EPA’s arguments. Furthermore, at

the risk of beating a dead fish, if EPA or a State

reasonably believes that particular discharges are

justified and consistent with the terms and purposes

of the statute, they have every tool they need to act on

that belief by issuing NPDES permits in compliance

with the CWA’s requirements. They do not need

24

courts to narrow the scope of the statute artificially,

arbitrarily, and atextually.

B. Petitioner And Its Amici’s Supposed

Harms Have Not Transpired To Date

In his plurality opinion in Harmelin v. Michigan,

Justice Scalia explained that the “strength” of the

“‘parade of horribles’ form of argumentation . . . is in

direct proportion to (1) the certitude that the provision

in question was meant to exclude the very evil

represented by the imagined parade, and (2) the

probability that the parade will in fact materialize.”

501 U.S. 957, 986 n.11 (1991) (plurality op.). Here,

the Court is confronted with an unusual situation: the

horribles in question have already had a chance to

materialize—25+ years of chances, in fact. Yet none

of them has. That is a weak parade-of-horribles

argument indeed. See also Wash. State Dep’t of

Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1020

(2019) (Gorsuch, J., concurring in judgment)

(discounting argument because “the State’s hypothetical parade of horribles has yet to take its first step in

the real world”).

Again, Respondents’ interpretation has been the

law of the land for 25+ years. Yet over that time

period not one of the claimed horrible consequences

that Petitioner and its amici have argued would result

from just such an interpretation has been visited upon

them. Rather, Petitioner’s amici were free to build

septic tanks (see Brief of Amicus Curiae National

Association of Home Builders of the United States in

Support of Petitioner (“NAHB Br.”) at 4-15), construct

green infrastructure (see Brief of Amici Curiae

National Association of Clean Water Agencies et al. in

Support of Petitioner (“NACWA Br.”) at 20-29), and

25

use “trenchless” construction methods to install

underground utility lines (see Brief for Energy

Transfer Partners, L.P. as Amicus Curiae in Support

of Petitioner (“ETP Br.”) at 10-19)—even in the face of

an EPA interpretation identical to that which

Respondents advocate.

The NDPES permitting

requirement did not slow or delay those programs; it

was business as usual.

C. Petitioner And Its Amici’s Speculative

Harms Are Unlikely To Materialize

Moreover,

Petitioner’s

alleged

horrible

consequences are unlikely ever to materialize. Many

of the harms posited by Petitioner and its amici are

contingent not only on an affirmance of the decision

below, but also on the EPA (and future courts)

misinterpreting or refusing to recognize other

limitations to regulation in the Act. For example,

many point sources remain outside the scope of the

NPDES program because their discharges cannot be

traced to surface waters. A generalized assertion that

groundwater connects to surface water—without

proof that the pollutants in fact reach the surface

water—is insufficient to create liability under the Act.

See, e.g., Rice v. Harken Exploration Co., 250 F.3d 264,

272 (5th Cir. 2001) (no liability where no “evidence of

a close, direct and proximate link between [the

defendant’s] discharges . . . and any resulting actual,

identifiable oil contamination of a . . . surface water”).

This Court should resist attempts by Petitioner

and its amici to ignore statutory requirements such as

this one in an effort to exaggerate the supposed

consequences of the single question before it. Cf.

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. EEOC, 565 U.S. 171, 195-96 (2012) (addressing

26

claim that permitting church to fire minister for

narcolepsy would lead to generalized exemption of

religious organizations from all employment laws:

“[t]here will be time enough to address the

applicability of the exception to other circumstances if

and when they arise”); see also Simmons v.

Himmelreich, 136 S. Ct. 1843, 1849 (2016) (“[i]f the

Government is right about the other provisions of

Chapter 171, the Court may hold so in the appropriate

case. . . . But this case deals only with the judgment

bar provision.”).

An obvious example of such an attempt can be

found in the Brief Amicus Curiae for Agricultural

Business Organizations Supporting Petitioner (“Ag.

Orgs. Br.”). Those amici claim that “requiring permits

for indirect additions of pollutants through

groundwater would wrongly expand the reach of the

CWA to ordinary and routine agricultural activities,”

such that “[i]rrigation” and “[a]gricultural stormwater” “could require an NPDES permit.” Ag. Orgs.

Br. 20, 25-26. But amici also acknowledge that the

CWA “expressly exempt[s]” both “‘return flows from

irrigated agriculture’” and “‘agricultural stormwater

discharges’” from the definition of “point source.” Id.

at 25 (quoting 33 U.S.C. § 1362(14)). Thus, for the

government to require an NPDES permit for return

flows from irrigated agriculture and agricultural

stormwater discharge would not merely require this

Court to affirm the decision below; it also would

require the government and reviewing courts to

ignore the plain text of the CWA and apply NPDES

permitting requirements to sources explicitly excluded

from the Act’s “point source” definition. Such a

claimed harm not only is farfetched but also shows the

preference of Petitioner and its amici for policy

27

arguments and scare tactics over close attention to

statutory text.

Similarly, the ETP amicus brief supporting

Petitioner predicts that accepting the position that

has been the law of the land for a quarter-century

would require parties undertaking trenchless

methods of drilling to obtain NPDES permits. ETP

Br. 16-19. According to amici, trenchless drilling

methods require the use of “drilling mud,” which is

“made of water and naturally occurring non-toxic

bentonite clay.” Id. at 16 (internal quotation marks

omitted). Per ETP, drilling mud “arguably” meets the

CWA’s definition of a pollutant, although it cannot

point to such a finding having ever been made. What

is more, ETP offers sheer speculation that drilling

mud could even make its way to navigable waters; the

brief cites occasions where drilling mud has made its

way “to the surface through indiscernible,

underground pathways” or has been “released into

groundwater,” id., but it never links those releases to

an addition to the navigable waters themselves.

Another example of contingent harms is

presented by NACWA, which suggests that green

infrastructure could unfairly be subject to NPDES

permitting if the decision below is affirmed. NACWA

Br. 27-29. Buried in a footnote, however, is the

admission that “[w]hether any particular component

of [green infrastructure] or a groundwater recharge

system is sufficiently ‘confined’ and ‘discrete’ to be a

point source would need to be determined on a caseby-case basis.” Id. at 27 n.15 (quoting 33 U.S.C.

§ 1362(14)).

Petitioner itself provides a final example.

Petitioner’s brief is replete with concerns that

28

reaffirming the view that has long prevailed in the

lower courts would subject “septic tanks” or “septic

systems” to NPDES permitting, which it deems an

overly burdensome and incorrect interpretation of the

Act. Pet. Br. 47-48. It is passing strange, then, to see

an amicus supporting Petitioner devote its entire brief

to arguing that septic tanks and systems are not point

sources and thus not subject to NPDES requirements.

See generally NAHB Br. 4-17. If NAHB’s experience

is to be credited, there are myriad legal and practical

obstacles to requiring an NPDES permit for septic

tanks—even if the Court agrees with Respondents’

view.

None of these supposed negative consequences

will flow directly from the Court’s decision in this

case—if they ever come at all. Indeed, Petitioner’s

contingent harms pale in comparison to the very real

harms that the nation’s waters, fish, wildlife, and

recreational fishing economy will suffer if the Court

permits Petitioner’s point-source pollution to proceed

unregulated. Petitioner’s wells are polluting the

Pacific Ocean now. The East Gallatin River is being

polluted now. A decision in Petitioner’s favor would

allow that pollution to continue and give license to

others to exploit a groundwater loophole read into the

statute. If the loophole existed by statutory command,

this Court would have no choice but to accept it, but

what Petitioner and its amici seek is the creation by

this Court of an atextual loophole. That has never

been this Court’s job.

29

CONCLUSION

The judgment of the Ninth Circuit should be

affirmed.

Respectfully submitted.

ROY T. ENGLERT, JR.

Counsel of Record

JENNIFER S. WINDOM

JOHN B. GOERLICH

ROBBINS, RUSSELL, ENGLERT,

ORSECK, UNTEREINER &

SAUBER LLP

2000 K Street, NW

Washington, DC 20006

(202) 775-4500

renglert@robbinsrussell.com

Counsel for Amicus Curiae

Trout Unlimited

July 19, 2019