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 FOR AMICI CURIAE LAW PROFESSORS

IN SUPPORT OF RESPONDENTS

STEPHEN E. ROADY

Counsel of Record

MICHELLE B. NOWLIN

SHANNON M. ARATA

DUKE UNIVERSITY SCHOOL OF LAW

210 Science Drive

Box 90360

Durham, NC 27708-0360

(919) 613-7061

steve.roady@duke.edu

Counsel for Amici Curiae

July 19, 2019

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

The Language and Structure of the Clean

Water Act Require the County of Maui to

Obtain an NPDES Permit for the

Discharge of Pollutants to Navigable

Waters from Its Wastewater Injection

Wells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The Plain Language of the Act

Requires the County to Obtain

an NPDES Permit for the

Pollutant Discharges from Its

Wells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Context and Structure of the

Act Require the County to Obtain

an NPDES Permit for the

Pollutant Discharges from Its

Wells . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Distinctions Between the Act’s

Provisions for Controlling Point

and Non-point Sources of

Pollution Do Not Alter the

Requirement that the County

Obtain an NPDES Permit . . . . . . . . . . 18

ii

II. The Legislative History of the Clean Water

Act Confirms the Plain Language of the

Statute and Reinforces the Requirement that

the County of Maui Obtain an NPDES

Permit for the Discharge of Pollutants to

Navigable Waters from Its Wells. . . . . . . . . . 21

A. The Legislative History Confirms that

NPDES Permits Are Required for

Discharges of Pollutants that Reach

Navigable Waters from Defined Point

Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. The Legislative History Demonstrates

that the Congressional Decision to

Delegate Primary Responsibility for

Groundwater Regulation to the States

Was Not Intended to Undermine the

Act’s Central Prohibition on the

Discharge of Pollutants to Navigable

Waters. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

III. Requiring an NPDES Permit for Point

Source Discharges that Are the Factual and

Proximate Cause of Surface Water

Impairment Does Not Expand the Scope of

the Clean Water Act . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

NAMES AND TITLES OF AMICI CURIAE . . . . . 1a

iii

TABLE OF AUTHORITIES

CASES

PAGES

Ala. v. N.C., 560 U.S. 330 (2010) . . . . . . . . . . . . . . . 11

Am. Airlines, Inc. v. C.A.B., 365 F.2d 939 (D.C. Cir.

1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Am. Iron & Steel Inst. v. Envtl. Prot. Agency, 115

F.3d 979 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . 12

Am. Tobacco Co. v. Patterson, 456 U.S. 63 (1982). . 14

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

548 U.S. 291 (2006). . . . . . . . . . . . . . . . . . . . 14, 21

Associated Gen. Contractors v. Cal. State Council of

Carpenters, 459 U.S. 519 (1983) . . . . . . . . . . . . 37

Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Ore., 515 U.S. 687 (1995) . . . . . . . . . . . . . 33

Chicago v. Envtl. Def. Fund, 511 U.S. 328 (1994) . . . . 16

Consumer Prod. Safety Comm’n v. GTE Sylvania,

Inc., 447 U.S. 102 (1980) . . . . . . . . . . . . . . . . . . 21

Dada v. Mukasey, 554 U.S. 1 (2008). . . . . . . . . . . . . 15

Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) . . . 15

Envtl. Prot. Agency v. Cal. ex rel. State Water Res.

Control Bd., 426 U.S. 200 (1976) . . . . . . . . . 12, 16

iv

Estate of Cowan v. Nicklos Drilling Co., 505 U.S.

469 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

U.S. 546 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Garcia v. U.S., 469 U.S. 70 (1984) . . . . . . . . . . . . . . 23

Greater Yellowstone Coal. v. Larson, 641 F. Supp.

2d 1120 (D. Idaho 2009) . . . . . . . . . . . . . . . . . . . 34

Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143

(9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432

(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jama v. Immigration & Customs Enforcement, 543

U.S. 335 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

King v. Burwell, 135 S. Ct. 2480 (2015) . . . . . . . . . 31

Lamie v. U.S. Tr., 540 U.S. 526 (2004) . . . . . . . . . . 11

League of Wilderness Defs. v. Forsgren, 309 F.3d

1181 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 8, 19

Metro. Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983). . . . . . . . . . . . . . . . 33

Rapanos v. U.S., 547 U.S. 715 (2006) . . . . . . 4, 11, 12

Rice v. Harken Expl. Co., 250 F.3d 264 (5th Cir.

2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

v

Schwegmann Bros. V. Calvert Distillers Corp., 341

U.S. 384 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S.

370 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Skidmore v. Swift & Co., 323 U.S. 134 (1944) . . . . 29

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) . . . . 13

U.S. v. Earth Scis., Inc., 599 F.2d 368 (10th Cir.

1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

U.S. v. Mead Corp., 533 U.S. 218 (2001) . . . . . . . . . 29

Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894

(2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Waterkeeper Alliance, Inc. v. U.S. Envtl. Prot.

Agency, 399 F.3d 486 (2d Cir. 2005) . . . . . . . . . 33

Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 468

(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Zuber v. Allen, 396 U.S. 168 (1969) . . . . . . . . . . . . . 23

STATUTES

33 U.S.C. §§ 1251-1388 . . . . . . . . . . . . . . . . . . . . . . . . 2

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

33 U.S.C. § 1251(a)(1) . . . . . . . . . . . . . . . . . . . . . . 3, 16

33 U.S.C. § 1288. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

33 U.S.C. § 1311. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

vi

33 U.S.C. § 1311(a) . . . . . . . . . . . . . . . . 2, 7, 14, 15, 36

33 U.S.C. § 1318. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

33 U.S.C. § 1319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

33 U.S.C. § 1329. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

33 U.S.C. § 1329(i) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 19

33 U.S.C. § 1342. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

33 U.S.C. § 1342(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

33 U.S.C. § 1344. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

33 U.S.C. § 1362. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

33 U.S.C. § 1362(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

33 U.S.C. § 1362(7) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

33 U.S.C. § 1362(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

33 U.S.C. § 1362(12) . . . . . . . . . . . . . . . . . 2, 3, 8, 9, 14

33 U.S.C. § 1362(14) . . . . . . . . . . . . . . . . . . . . . . . 8, 20

vii

FEDERAL REGULATIONS

& REGULATORY MATERIALS

1991 Final Rule Addressing Water Quality

Standards on Indian Lands, 56 Fed. Reg. 64,892

(Dec. 12, 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . 30

EPA, Clean Water Act Rule Response to Comments

– Topic 10: Legal Analysis,(2015),

https://www.epa.gov/sites/production/files/2015

06/documents/cwr_response_to_comments_10

_legal.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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 (Apr. 23,

2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 35

LEGISLATIVE HISTORY

117 Cong. Rec. 38,797 (1971) . . . . . . . . . . . . . . . . . . 16

118 Cong. Rec. 10,206 (1972) . . . . . . . . . . . . . . . . 4, 22

118 Cong. Rec. 10,668 (1972) . . . . . . . . . . . . . . . . . . 27

118 Cong. Rec. 33,692 (1972) . . . . . . . . . . . . . . . . . . 16

118 Cong. Rec. 33,699 (1972) . . . . . . . . . . . . . . . . . . 25

118 Cong. Rec. 33,758-59 (1972) . . . . . . . . . . . . . . . 24

133 Cong. Rec. 985 (1987). . . . . . . . . . . . . . . . . . . . . 19

viii

133 Cong. Rec. 1261 (1987). . . . . . . . . . . . . . . . . . . . 19

133 Cong. Rec. 1279 (1987). . . . . . . . . . . . . . . . . . . . 28

H.R. Rep. No. 93-1185 (1974) . . . . . . . . . . . . . . . . . . 28

S. Rep. No. 92-414 (1971) . . . . . . . . . . . . . . . 19, 27, 28

COURT DOCUMENTS

Pet. App. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20, 34

Brief of Amici Curiae Edison Electric Inst., et al., in

Support of Petitioner, Cty. of Maui v. Haw.

Wildlife Fund, No. 18-260 (May 16, 2019) . . . . 26

Brief of Amici Curiae National Association of Clean

Water Agencies, et al., in Support of Petitioner,

Cty. of Maui v. Haw. Wildlife Fund, No. 18-260

(May 16, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Brief of Amici Curiae State of West Virginia, et al.,

in Support of Petitioner, Cty. of Maui v. Haw.

Wildlife Fund, No. 18-260 (May 16, 2019) . . . . 32

Brief for Petitioner, Cty. of Maui v. Haw. Wildlife

Fund, No. 18-260

(May 9, 2019). . . . . . . . . . . . . . . . 10, 13, 18, 26, 32

Brief for the United States as Amicus Curiae in

Support of Plaintiffs-Appellees, Haw. Wildlife

Fund v. Cty. of Maui, 881 F.3d 754 (No. 1517447) (9th Cir. May 31, 2016) . . . . . . . . . . . 30, 31

ix

Brief for the United States as Amicus Curiae

Supporting Petitioner, Cty. of Maui v. Haw.

Wildlife Fund, No. 18-260

(May 16, 2019). . . . . . 18, 26, 29, 31, 32, 35, 36, 37

Brief of United States Senators as Amici Curiae in

Support of Petitioner, Cty. of Maui v. Haw.

Wildlife Fund, No. 18-260

(May 16, 2019). . . . . . . . . . . . . . . . . . . . . 11, 18, 26

OTHER

Brett M. Kavanaugh, Book Review: Fixing

Statutory Interpretation, 129 Harv. L. Rev. 2118

(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Merriam-Webster,

https://www.merriamwebster.com/dictionary/add . . . . . . . . . . . . . . . . . 9

Merriam-Webster,

https://www.merriamwebster.com/dictionary/any . . . . . . . . . . . . . . . . . 9

Merriam-Webster,

https://www.merriamwebster.com/dictionary/from . . . . . . . . . . . . . . . 10

Merriam-Webster,

https://www.merriamwebster.com/dictionary/to . . . . . . . . . . . . . . . . . 10

N. William Hines, History of the 1972 Clean Water

Act: The Story Behind How the 1972 Act

Became the Capstone on a Decade of

Extraordinary Environmental Reform, 4 J.

Energy & Envtl. L. 80 (2013) . . . . . . . . . . . . . . . 22

x

Oliver A. Houck, Cooperative Federalism,

Nutrients, and the Clean Water Act: Three

Cases Revisited, 44 Envtl. L. Rep. 10,426

(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 22

Restatement of Torts § 279. . . . . . . . . . . . . . . . . . . . 37

Robert Glicksman & Matthew R. Batzel, Science,

Politics, Law and the Arc of the Clean Water

Act: The Role of Assumptions in the Adoption of

a Pollution Control Landmark, 32 Wash. U. J.

L. & Policy 99 (2010) . . . . . . . . . . . . . . . . . . 19, 20

Robert W. Adler & Brian House, Atomizing the Clean

Water Act: Ignoring the Whole Statute and Asking

the Wrong Questions, 32 J. Envtl. L.,

http://ssrn.com/abstract=3373349 . . . 15, 17, 18, 20

William Andreen, The Evolution of Water Pollution

Control in the United States – State, Local, and

Federal Efforts, 1789-1972: Part II, 22 Stan.

Envtl. L.J. 215 (2003) . . . . . . . . . . . . . . . . . . 22, 25

William L. Prosser, Handbook of the Law of Torts §

49 (3d ed. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . 36

INTEREST OF AMICI CURIAE1

Amici curiae are thirty-seven law professors and

scholars who teach, research, and publish in the subject

areas of environmental and natural resources law. The

Appendix provides a complete list of their names and

titles. Collectively, they have been closely involved for

several decades with law, legislation, and policy

involving major federal pollution control statutes,

prominently including the Clean Water Act. They have

written extensively about both the origins of the Act

and its application; their published works include

comprehensive and definitive histories of the Act, as

well as analyses of its implementation. Their legislative

involvement with the Act has included both drafting

statutory language and testifying. By virtue of their

work and experience, they are intimately familiar with

the design, operation, and implementation of the Act.

They submit this amicus brief to assist the Court in

determining how best to interpret the Act, and to aid

the Court in considering the scope of activities

regulated under the Act’s NPDES permits.

1

Pursuant to Supreme Court Rule 37.3, amici curiae state

that counsel of record for all parties have consented to the filing of

this brief. On April 4, 2019, counsel for the Respondents

submitted a letter of blanket consent to the filing of amicus curiae

briefs. By electronic mail on July 5, 2019, counsel for the

Petitioner provided consent to this filing. Pursuant to Supreme

Court Rule 37.6, amici curiae state that no counsel for any party

authored this brief in whole or in part, and that no person or entity

other than amici and their counsel made a monetary contribution

intended to fund the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

The language of the Federal Water Pollution Control

Act Amendments of 1972 (“Clean Water Act” or “Act”)

dictates a ruling in favor of the Respondents. The

Petitioner’s interpretation of this language reads the

word “directly” into a key Act definition, thereby

limiting the reach of the Act’s central prohibition on the

unpermitted discharge of pollution to the waters

protected by the Act. Under this interpretation,

dischargers of pollutants could evade the Act simply by

adding pollution from their point sources to navigable

waters through groundwater, air, or soil, thereby doing

indirectly what the Act directly prohibits: degrading

surface water quality with impunity.

The Petitioner and various amici cannot justify this

re-writing of the Act’s language by asserting that

Congress delegated control over groundwater to the

states, and suggesting that the ruling below risks a

dramatic expansion of the reach of the Act’s federal

permitting requirements. Congress has never

abandoned the requirement that “any” addition of

“any” pollutant from “any” point source “to” navigable

waters must obtain a federal Clean Water Act permit.

See 33 U.S.C. §§ 1311(a), 1362(12) (2012). Moreover,

background principles of proximate causation prevent

the kind of permitting expansion that the Petitioner

and amici fear.

Congress enacted the Act in 1972 to address its

profound concern over the severely degraded state of

the nation’s water resources. Id. §§ 1251-1388. It

carefully designed the Act to execute its central

3

objective of “restoring and maintaining the physical,

chemical, and biological integrity of the nation’s

waters.” Id. § 1251(a)(1). Its national goal: eliminating

the discharge of pollutants into navigable waters by

1985.

The Act’s central, operative provision is section 301.

Id. § 1311.

It prohibits “point sources” from

discharging pollutants to “navigable waters” without a

National Pollutant Discharge Elimination System

(“NPDES”) permit issued pursuant to section 402. Id.

§ 1342(a); see id. § 1311.2 NPDES permits impose

technology-based effluent limitations to achieve

across-the-board pollutant reductions, and include

stricter limits where needed to achieve and maintain

ambient water quality standards that protect the health

of humans and aquatic ecosystems. Id. § 1342. The

federal government controls these permits; they are the

linchpin of a comprehensive effort to prevent and

control water pollution.

To further the Act’s goals, Congress carefully defined

the pivotal terms “point source,” “pollutant,” and

“discharge of a pollutant.” Id. § 1362. The Act defined

the term “discharge of a pollutant” as “any addition of

any pollutant to navigable waters from any point

source.” Id. § 1362(12) (emphasis added). These

definitions were considered the “most important” part

of the Act—so essential to its success that the Chairman

2

The Act applies to “navigable waters,” defined as “the

waters of the United States.” See 33 U.S.C. §§ 1251(a), 1362(7).

This Brief uses the terms “navigable waters” and “surface waters”

to refer to waters within the Act’s jurisdiction.

4

of the House Committee on Public Works explicitly

warned that “[t]o revise them in a way to limit their

coverage is to severely detract from the effectiveness of

the bill.” 118 Cong. Rec. 10,206 (1972).

In this case, the Petitioner County of Maui

(“County”) is adding treated wastewater pollutants to

the Pacific Ocean from wastewater injection wells. The

pollutants travel via groundwater and enter the ocean

through offshore, spring-fed fissures along coral reefs

one-half mile away. A tracer-dye test has confirmed

that the pollutants discharged by the County are

entering the ocean. Indeed, this result is precisely what

the County intended; it designed its system to dispose

of treated sewage into the ocean via groundwater. On

these facts, the plainest reading of the statute is that

the County is discharging pollutants from point sources

to navigable waters—a practice the Act prohibits

without an NPDES permit.

In an effort to avoid this plain language reading, the

County and various amici have cobbled together an

interpretation of the Act’s text, and snippets of

legislative history, to suggest the Act exempts pollutant

discharges that are not added “directly” to navigable

waters from point sources. The fundamental difficulty

with this suggestion is the Act’s express language,

which lacks the very word the County seeks to insert.

As this Court has observed, the Act’s definition of the

term “discharge of a pollutant” employs the phrase

“any addition of any pollutant to navigable waters”

rather than the phrase “any addition of any pollutant

directly to navigable waters.” See Rapanos v. U.S., 547

U.S. 715, 743 (2006) (Scalia, J., plurality opinion).

5

Therefore, the statute’s plain language does not support

the County. This fact alone is sufficient to defeat its

argument.

In addition to this fatal flaw, the County’s argument

violates the Act’s central implementing architecture,

and misreads the most relevant legislative history.

Further, the argument leads to absurd results that

would allow dischargers to evade the Act.

First, the County argues that the Act delegated

primary control of “non-point” sources of pollutants to

the states. This point is irrelevant, because the County

is discharging pollution from wells, and the Act’s

explicit definition of “point source” includes the term

“wells.”

Second, the County argues that groundwater is a

non-point source of pollutants. This is incorrect: the

Act makes clear that groundwater is a medium that can

be contaminated by pollution, and through which

pollutants can be discharged to surface waters. See 33

U.S.C. § 1329(i). In this case, groundwater is in no way

the source of the pollutants, which are instead

channeled to navigable water through a point

source—the wells. And the County’s argument that

groundwater is not part of the “waters of the United

States” is beside the point. This case does not concern

the regulatory status of groundwater; instead, the issue

here is the prohibited pollution of surface waters.

Third, the County and amici claim that the Act’s

legislative history demonstrates Congressional intent to

exempt discharges of pollutants through groundwater

or other media from the Act’s central prohibition on

6

discharges of pollutants from point sources to surface

waters. This claim is belied by both the Act’s

operational provisions and legislative history. Far from

supporting the County’s argument, the legislative

history confirms the Act’s plain language and

objectives: where pollutants discharged from defined

point sources factually and proximately cause the injury

prohibited by the Act by entering surface

waters—either directly or through some intermediary

delivery medium—the discharger must obtain an

NPDES permit.

Various amici suggest that the ruling below would

unreasonably expand the scope of the NPDES program.

But this contention ignores background principles of

proximate causation, which protect against such

expansion. And the ruling merely reaffirms decades of

previous government and judicial interpretations that

point sources, such as wells that discharge pollutants

into surface water, must obtain NPDES permits where

it is reasonably foreseeable that those discharges reach

surface waters through groundwater. The longstanding

implementation of the Act by the Environmental

Protection Agency (“EPA”) and the states to regulate

such discharges, and the availability of general permits

and other regulatory techniques, ensure that the Act’s

application is not burdensome, and confirm that there

is no justification for departing from the Act’s plain

language.

ARGUMENT

This case can be resolved straightforwardly by

reading the plain language of the Clean Water Act and

7

accounting for the Act’s objectives, as implemented by

its key provisions and definitions. This analysis

establishes that the County’s discharge of pollutants

through injection wells to navigable waters is unlawful

in the absence of an NPDES permit.

I.

The Language and Structure of the Clean

Water Act Require the County of Maui to

Obtain an NPDES Permit for the

Discharge of Pollutants to Navigable

Waters from Its Wastewater Injection Wells

The Act’s central operative provisions, expressed

plainly in its purposes and spelled out in its definitions

and implementing language, dictate that an NPDES

permit is required in this case.

A. The Plain Language of the Act

Requires the County to Obtain an

NPDES Permit for the Pollutant

Discharges from Its Wells

The Act’s driving principle is section 301’s explicit

prohibition of “the discharge of any pollutant by any

person” in the absence of a permit. 33 U.S.C. § 1311(a).

The only way for a pollutant discharger to overcome

this prohibition is to obtain one of two permits: (1)

“point source” permits issued under section 402, id. §

1342, for pollution of the type being discharged by the

County, or (2) “dredge and fill” permits issued under

section 404. Id. § 1344.

The Act’s definitions spell out the meaning of section

301. This Court has emphasized that these definitions

are vital to understanding the Act’s requirements, and

8

that its “technical definitions are worked out with great

effort in the legislative process.” S.D. Warren Co. v. Me.

Bd. of Envtl. Prot., 547 U.S. 370, 380 (2006).

Therefore, it is essential to begin with an

examination of the definitions of section 301’s operative

words. Matching these definitions to the undisputed

facts resolves this case.

First: The Act defines “discharge of a pollutant” as

“any addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. § 1362(12) (emphasis

added).

Second: The Act defines the term “pollutant” to

include “sewage” and “municipal waste.” Id. § 1362(6).

Third: The Act defines “point source” as “any

discernable, confined and discrete conveyance, including

but not limited to any pipe, ditch, channel, tunnel,

conduit, well . . . from which pollutants are or may be

discharged.” Id. § 1362(14) (emphasis added).3

Fourth: The Act defines “navigable waters” as “the

waters of the United States, including the territorial

seas.” Id. § 1362(7). It further defines “territorial

seas” to mean that part of the ocean extending seaward

3

The Act does not define “non-point” source pollution,

which courts have ruled arises from many dispersed activities and

“is not traceable to any single discrete source.” League of

Wilderness Defs. v. Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002).

Point and non-point source pollution are differentiated by whether

pollutants added to navigable waters are from “an identifiable

conveyance” or “point.” U.S. v. Earth Scis., Inc., 599 F.2d 368, 373

(10th Cir. 1979).

9

for three miles from the ordinary low water line. Id. §

1362(8).

In this case, it is undisputed that the County

designed a system that adds treated sewage (a

“pollutant”) from its wells (“point sources”) through

groundwater to the Pacific Ocean’s “navigable waters”

less than one-half mile away from the injection site.

The presence of these pollutants in the nearshore ocean

has been confirmed by a tracer-dye test, which

documented that a significant amount of the effluent

injected into the groundwater is discharged into the

ocean through two submarine spring areas located

along a nearshore reef. Pet. App. 9-11. These

pollutants are degrading both water quality and the

reef. Id. No party challenges the proven fact that these

discharges are—by design—adding pollutants to the

nearshore ocean.

The County’s actions perfectly track the definition of

“discharge of a pollutant” set out in 33 U.S.C. §

1362(12).

Dictionary definitions confirm this

conclusion:

(1)

The word “any” means “one or some

indiscriminately of whatever kind." Merriam-Webster,

https://www.merriam-webster.com/dictionary/any (last

visited July 13, 2019). That the definition repeats this

word three times bespeaks breadth of coverage.

(2) “Add” means “To join or unite so as to bring

about an increase.” Merriam-Webster, https://

www.merriam-webster.com/dictionary/add (last

visited July 13, 2019). Hence, the County is

10

adding pollutants by increasing the amount in the

Pacific Ocean;

(3) “To” indicates “movement or an action or

condition suggestive of movement toward a place,

person, or thing reached.” Merriam-Webster,

https://www.merriam-webster.com/dictionary/to

(last visited July 13, 2019). Hence, the County is

adding pollutants to the Pacific Ocean by

discharging them through groundwater; the

pollutants’ movement is directed towards and

reaches that Ocean;

(4) “From” indicates “a starting point of a

physical movement.” Merriam-Webster,

https://www.merriam-webster.com/dictionary/fr

om (last visited July 13, 2019). Hence, the

County’s wells are the starting point from which

the pollutants begin moving to the navigable

waters of the Pacific Ocean.

Thus, in plain English, the undisputed facts establish

that the County is: (a) adding (b) pollutants (c) to (d)

navigable waters (e) from (f) a point source. This is

“how the words would be read by an ordinary user of

the English language.” Brett M. Kavanaugh, Book

Review: Fixing Statutory Interpretation, 129 Harv. L.

Rev. 2118, 2150 n.158 (2014). It is the best reading of

the statute, and it should be followed.

The County’s preferred reading of this plain

language would mean that no NPDES permit is

required for pollutant discharges unless those

discharges are made “directly” into navigable waters.

See Brief for Petitioner at 27-44, Cty. of Maui v. Haw.

11

Wildlife Fund, No. 18-260 (May 9, 2019) (arguing for a

“means of delivery” test under which a point source

must add pollutants directly to navigable waters)

[hereinafter Pet. Br.]; see also, e.g., Brief of United

States Senators as Amici Curiae in Support of

Petitioner at 5-19, Cty. of Maui v. Haw. Wildlife Fund,

No. 18-260 (May 16, 2019) [hereinafter Senators’ Br.].

But this tortured construction of the Act’s plain words

is devoid of support in the enacted text of the key

definition, which does not include the word “directly”

in front of the word “to.” Courts may not “read an

absent word into the statute,” Lamie v. U.S. Tr., 540

U.S. 526, 538 (2004), nor can they “add provisions to a

federal statute.” Ala. v. N.C., 560 U.S. 330, 352 (2010).

As this Court recently noted: “it is our duty to respect

not only what Congress wrote but, as importantly, what

it didn’t write.” Va. Uranium, Inc. v. Warren, 139 S. Ct.

1894, 1900 (2019) (Gorsuch, J., plurality opinion).

In Rapanos, Justice Scalia considered the suggestion

that dischargers “will be able to evade the permitting

requirements of 1342(a)” simply by adding pollutants

into waters not covered by the Act and allowing those

pollutants to reach covered waters—thus doing

indirectly what they could not do directly. 547 U.S. at

742-43. He roundly rejected that interpretation of the

Act, stating that:

The Act does not forbid the “addition of any

pollutant directly to navigable waters from any

point source,” but rather the “addition of any

pollutant to navigable waters.” Thus, from the

time of the CWA’s enactment, lower courts have

[found likely violations of the CWA] . . . even if the

12

pollutants discharged from a point source do not

emit “directly into” covered waters, but pass

“through conveyances” in between.

Id. at 743 (citations omitted).

Justice Scalia

underscored this point by noting that “[s]ome courts

have even adopted both the ‘indirect discharge’

rationale and the ‘point source’ rationale in the

alternative, applied to the same facts.” Id. at 744

(citation omitted).

He explained that releasing

pollutants that are carried to navigable waters from a

point source some distance away is “naturally described

as an ‘addition . . . to navigable waters.’” Id. at 744

n.11.

That Congress wrote the definition of discharge by

employing the word “to” (rather than “directly to”)

immediately before “navigable waters” is perfectly

consistent with the Act’s national goal: eliminating

pollution of navigable waters from defined point

sources. The word “to” is more expansive in scope than

“directly to,” and it animates the Act’s central thrust:

comprehensively to prevent point sources from

discharging pollutants to navigable waters without

authorization. And NPDES permits are vital to

achieving the goal to “abate and control water

pollution.” Envtl. Prot. Agency v. Cal. ex rel. State

Water Res. Control Bd., 426 U.S. 200, 204 (1976). They

are the Act’s “centerpiece.” Am. Iron & Steel Inst. v.

Envtl. Prot. Agency, 115 F.3d 979, 990 (D.C. Cir. 1997).

The County points to various places in which the Act

deploys the term “into” instead of “to,” and suggests

that this supports its theory that the NPDES program

13

applies only “at the point of discharge” of pollutants to

navigable waters. Pet. Br. at 36-37. But the plain

meaning of a provision “cannot be altered by the use of

a somewhat different term in another part of the

statute.” Estate of Cowan v. Nicklos Drilling Co., 505

U.S. 469, 480 (1992). Regardless, these examples from

elsewhere in the statute only highlight that Congress

knew how to use its words purposefully. See Sosa v.

Alvarez–Machain, 542 U.S. 692, 711 n.9 (2004)

(explaining “the usual rule that ‘when the legislature

uses certain language in one part of the statute and

different language in another, the court assumes

different meanings were intended.’”). Thus, it is telling

that Congress chose to rely upon the word “to”—rather

than “directly to” or “into”—in section 502(12). See

Jama v. Immigration & Customs Enforcement, 543 U.S.

335, 341 (2005) (“We do not lightly assume that

Congress has omitted from its adopted text

requirements that it nonetheless intends to apply.”).

What is more, the County’s unsupported reading

undermines Congress’s decision to place authority for

“any” point source discharge under federal regulatory

control pursuant to the NPDES program.

By

exempting indirect discharges to surface waters from

NPDES requirements, it renders the regulatory

regime’s coverage incomplete, and prevents it from

achieving the comprehensive protection of the nation’s

waters that is the Act’s central purpose as expressed in

section 301.

Thus, under the County’s reading, any entity wishing

to avoid the requirement to obtain an NPDES permit

could do so merely by discharging its pollutants at a

14

place removed only a slight distance from navigable

waters. For instance, the County could decide to

discharge its pollutants into the highly-permeable sandy

ground of a beach, a few feet inland from the high tide

line. It could then argue that no NPDES permit is

required, on the theory that its discharge is not

“directly” into navigable waters.

The County’s

interpretation would render this evasive tactic a

practical operational prescription for avoiding the legal

requirements and cost of proper pollutant disposal.

The same theory would allow other polluters to

engage in a wide range of similar behaviors, thereby

undermining the central prohibition set out in section

301 and in the section 502 definition of “discharge of a

pollutant.” See 33 U.S.C §§ 1311(a), 1362(12). Indeed,

a discharger could simply raise its outfall pipe above the

surface of the water and argue that the discharge was to

the air, and not directly into the water body. This

would be an absurd result, and the Court should avoid

it. See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71

(1982) (explaining that statutes should be interpreted

to avoid unreasonable results “whenever possible").

Where the statutory language is clear, that is the end

of the matter. Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 297 (2006); Hughes Aircraft Co.

v. Jacobson, 525 U.S. 432, 438 (1999). Accordingly, the

Court need go no further than simply applying the plain

language of the Clean Water Act to the facts of this case.

The County is adding pollutants to navigable waters

from point sources without first obtaining an NPDES

permit, in violation of the plain language of sections 301

15

and 502(12) of the Act. Therefore, the judgment below

should be affirmed.

B. The Context and Structure of the Act

Require the County to Obtain an

NPDES Permit for the Pollutant

Discharges from Its Wells

In addition to its plain language, both the

implementing structure and context of the Clean Water

Act make clear that the County may not lawfully

discharge pollutants to the Pacific Ocean from injection

wells in the absence of an NPDES permit.

Considering the whole context and design of the

relevant statute is important when construing the

meaning of statutory text. See, e.g., Dada v. Mukasey,

554 U.S. 1, 16 (2008) (“In reading a statute, the Court

must not ‘look merely to a particular clause,’ but

consider ‘in connection with it the whole statute.’”);

Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)

(“[I]nterpretation of a word or phrase depends upon

reading the whole statutory text, considering the

statute’s purpose and context.”); see also Robert W.

Adler & Brian House, Atomizing the Clean Water Act:

Ignoring the Whole Statute and Asking the Wrong

Questions, 32 J. Envtl. L., http://

ssrn.com/abstract=3373349 (forthcoming in 2020)

[hereinafter Adler].

For example, in Chicago v. Environmental Defense

Fund, this Court considered the plain language and

structure of the Resource Conservation and Recovery

Act, concluding that the statute’s plain language and its

16

over-arching purpose overrode an arguably conflicting

statement contained in legislative history. 511 U.S.

328, 337-38 (1994); see also Va. Uranium, 139 S. Ct. at

1902 (“What the text states, context confirms.”).

Turning to the Act’s context, particularly its

carefully-constructed implementing provisions, it is

clear that the Act contains no exemption for pollutant

discharges from point sources (like the County’s wells)

to surface waters via groundwater. Congress enacted

the Act to address the “cancer” of water pollution that

had rendered the nation’s rivers “little more than

sewers to the sea.” 118 Cong. Rec. 33,692 (1972)

(statement of Sen. Muskie); 117 Cong. Rec 38,797

(1971) (statement of Sen. Muskie). Section 301 states

the Act’s objective: “to restore and maintain the

physical, chemical, and biological integrity of the

nation’s waters.” 33 U.S.C. § 1251(a). Congress

effectuated this objective through the Act’s

implementing provisions, which were designed to

eliminate pollution discharges to the nation’s surface

waters by 1985. Id. § 1251(a)(1).

NPDES permits are the essential vehicle through

which Congress implemented the pivotal section 301

ban on all unpermitted pollutant discharges from point

sources. Through them, EPA (and states, if they have

been delegated NPDES authority) articulates and

enforces the reduction, treatment, and control of water

pollution. See Envtl. Prot. Agency v. Cal., 426 U.S. at

204-05. Inter alia, the detailed NPDES requirements

include monitoring and reporting, 33 U.S.C. § 1318, and

ensure that no pollutant discharges to waters protected

by the Act occur “off the record” without public notice

17

or attention. Adler, supra, at 35. The comprehensive

nature of the requirements imposed by these permits is

reinforced by the enforcement authority the Act grants

to the EPA to take action whenever “any person is in

violation of any condition or limitation” contained in an

NPDES permit. 33 U.S.C. § 1319.

Under this carefully-structured water pollution

control plan, all point source discharges to navigable

waters must be accounted for in order to achieve the

Act’s goals. Unless all point sources are covered by

permits, some point sources are unfairly forced to bear

a higher percentage of the pollutant reduction load in

what is a zero-sum game. Adler, supra, at 36.

The County’s reading of the Act would completely

undermine the NPDES program for controlling point

source pollution and eliminating unpermitted

discharges. Under its approach, pollutants added to

surface waters through groundwater never would be

regulated under the NPDES permit program. This

result is totally at odds with the Act’s comprehensive,

carefully-designed plan to ensure that all sources of

pollution discharging to navigable waters are properly

regulated. It violates both the Act’s context and its

structure. Accordingly, the Court should reject the

County’s argument.

18

C. Distinctions Between the Act’s Provisions

for Controlling Point and Non-point

Sources of Pollution Do Not Alter the

Requirement that the County Obtain an

NPDES Permit

The County and its amici argue that Congress’s

decision to control point and non-point pollution

differently evinces its intent to disregard discharges like

the County’s. Pet. Br. at 4-6, 11; Senators’ Br. at 17-19;

Brief for the United States as Amicus Curiae

Supporting Petitioner at 12-19, Cty. of Maui v. Haw.

Wildlife Fund, No. 18-260 (May 16, 2019) [hereinafter

U.S. Br.]. This argument misses the mark: the question

of controlling non-point source pollution is not before

the Court, because the County is indisputably

discharging pollutants from a defined point source.

That these pollutants are carried by groundwater to the

ocean does not change that fact. See infra, Part II.B.

The County’s argument bungles the meaning of the

Act’s operative provisions and erroneously conflates

pollution conveyed through groundwater with non-point

source pollution.

As originally constructed, the Act largely delegated

non-point source pollution management to the states

via the concept of “areawide waste treatment

management plans.” 33 U.S.C. § 1288. However, this

provision was widely perceived as failing to redress the

problem of non-point source pollution. See Adler,

supra, at 39 n.210; Oliver A. Houck, Cooperative

Federalism, Nutrients, and the Clean Water Act: Three

Cases Revisited, 44 Envtl. L. Rep. 10,426, 10,429 n.43

19

(2014) [hereinafter Houck]; Robert Glicksman &

Matthew R. Batzel, Science, Politics, Law and the Arc of

the Clean Water Act: The Role of Assumptions in the

Adoption of a Pollution Control Landmark, 32 Wash. U.

J. L. & Policy 99, 102-04 (2010) [hereinafter

“Glicksman”]. Therefore, in 1987, Congress added

section 319, 33 U.S.C. § 1329, in an effort to better

control non-point source pollution and prevent it from

contaminating groundwater. 133 Cong. Rec. 985 (1987)

(statement of Rep. Hammerschmidt). Section 319

accomplishes this goal by requiring states to develop

Total Maximum Daily Loads (“TMDLs”) for impaired

water bodies. 33 U.S.C. § 1329. Congress provided for

close federal supervision of this process: EPA must

review and approve all TMDLS. Id.; see Houck, supra,

at 10,429; Glicksman, supra, at 135-37.

Congress exempted non-point pollution sources from

the Act’s NPDES permitting requirements because it is

difficult to trace the pollution to one particular source.

Thus, it is “very difficult to regulate through individual

permits.” League of Wilderness Defs., 309 F.3d at 1184.

As Senator Mitchell noted during debate on the

Conference Report accompanying the 1987 Act

amendments, “[n]onpoint pollution is caused by general

runoff, rather than discharge from a specific pipe.” 133

Cong. Rec. 1261 (1987). With non-point source

pollution, the pollution from many sources is

aggregated, and is theoretically best remedied through

Best Management Practices and land-based controls

imposed by the states and local governments, in keeping

with their traditional authority to develop and enforce

property and land-use laws. See S. Rep. No. 92-414, at

20

36-39 (1971); Glicksman, supra, at 115-16, 122. In this

context, the 9th Circuit’s “fairly traceable” formulation

is especially relevant, because it negates the notion that

the chemical impairments to the ocean in this case come

from non-point sources, which, by their nature, are

diffuse and untraceable.

Here, the tracer-dye test shows that the pollutant

discharge to surface waters indisputably comes from a

point source—the County’s wells. Pet. App. 9-11; see 33

U.S.C. § 1362(14). The County conveys polluted

effluent into these wells by design, with the intent that

the effluent will enter the groundwater, which in turn

will convey the effluent to the ocean. Pet. App. 8-10.

Congress’s decision to give the states a primary role

for addressing non-point source pollution did not alter

the Act’s overarching purpose to eliminate pollution of

surface waters. Nor did it change its careful design to

control point source discharges to surface waters via the

NPDES program. While it is vital that pollution from

non-point sources be addressed as part of the Act’s

comprehensive approach to protecting water quality,

Adler, supra, at 40 n.211, the issue of non-point source

pollution control is not before the Court.

21

II. The Legislative History of the Clean Water

Act Confirms the Plain Language of the

Statute and Reinforces the Requirement

that the County of Maui Obtain an NPDES

Permit for the Discharge of Pollutants to

Navigable Waters from Its Wells

There is no need to examine legislative history where

the plain language of the statute is clear. See, e.g.,

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.

546, 568-69 (2005). Legislative history cannot override

an unambiguous statutory text. Murphy, 548 U.S. at

296-97, 304. The statutory language itself is controlling

“[a]bsent a clearly expressed legislative intention to the

contrary.” Consumer Prod. Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102, 108 (1980). Nonetheless,

the County and various amici argue that the Act’s

legislative history supports their effort to limit the

definition of “discharge of a pollutant.” In fact, that

history points in the opposite direction.

Indeed, the Act’s legislative history explicitly warns

against the danger of modifying the plain language of

the statute’s definitions, as the County endeavors to do

here. Representative Blatnik, the Chairman of the

House Committee on Public Works, which drafted the

House version of the Act, made clear that this effort is

precisely the kind of definitional tinkering that

Congress condemned:

The total utility of the bill is reflected in the

definitions of the terms pollutant, pollution, point

source, discharge, and toxic pollutant. To revise

any of these definitions is to upset the common

22

threat [sic] of the bill. If there is a part of this bill

that can be labeled “most important” it is these

definitions. To revise them in any way to limit

their coverage is to severely detract from the

effectiveness of the bill.

118 Cong. Rec. 10,206 (1972) (emphasis added).4

Congress warned against efforts to limit the scope of

these definitions, which granted vital new authority

over pollutant discharges to the federal government,

because its initial efforts to protect the nation’s waters

by delegating primary authority to the states had failed.

The Act’s legislative history is rife with colorful

statements documenting Congress’s recognition of this

failure, and of the consequent need for comprehensive

federal authority over control of water pollution. See

Houck, supra, at 10,427-28.

In any event, much of the legislative history relied

upon by the County and amici speaks to a matter that

is not at issue here: the regulation and quality of

groundwater. Moreover, the legislative history sources

invoked by the County and its amici have little

persuasive weight.

4

Chairman Blatnik was intimately involved in efforts to

enact federal legislation to protect water quality for nearly two

decades. See N. William Hines, History of the 1972 Clean Water

Act: The Story Behind How the 1972 Act Became the Capstone on a

Decade of Extraordinary Environmental Reform, 4 J. Energy &

Envtl. L. 80, 86-88, 97 (2013); William Andreen, The Evolution of

Water Pollution Control in the United States – State, Local, and

Federal Efforts, 1789-1972: Part II, 22 Stan. Envtl. L.J. 215, 274

(2003).

23

All forms of legislative history are not created equal,

and the excerpts relied upon by the County are the least

authoritative. Courts afford the most weight to

statements contained in the written report of the

committees on the bill that was finally enacted. Of

these, the Conference Committee Report is the most

important source. See Garcia v. U.S., 469 U.S. 70, 76

(1984) (instructing that an authoritative source for

finding the Legislature's intent lies in the Committee

Reports); Zuber v. Allen, 396 U.S. 168, 186 (1969).

Less authoritative are the floor statements of

Senators and Congressmen, as this Court has

“eschewed reliance on the passing comments of one

Member and casual statements from the floor debates.”

Garcia, 469 U.S. at 483 (citation omitted). Courts

typically give more weight to the statements of

legislation’s principal sponsors than to statements of

other members of Congress: “It is the sponsors that we

look to when the meaning of statutory words is in

doubt.” Schwegmann Bros. v. Calvert Distillers Corp.,

341 U.S. 384, 395-96 (1951). And it is a “generally

accepted maxim of statutory construction that reports

by the legislative committees responsible for

formulating the legislation must take precedence in

event of conflict over statements in the legislative

debates on the floors of the houses of Congress.” Am.

Airlines, Inc. v. C.A.B., 365 F.2d 939, 949 (D.C. Cir.

1966).

It is, therefore, noteworthy that the County’s

argument is belied by passages from the Conference

Committee and House and Senate Committee Reports,

as well as by the statements of the Act’s two principal

24

sponsors. By contrast, the legislative history excerpts

on which the County and amici rely consist merely of

the much less-authoritative floor debates and testimony

before committees.

A. The Legislative History Confirms that

NPDES Permits Are Required for

Discharges of Pollutants that Reach

Navigable Waters from Defined Point

Sources

The legislative history is crystal clear: Congress

intended to prohibit the unpermitted discharge, direct

or indirect, of pollutants to navigable waters from

defined point sources. During the debate in the House

that accompanied consideration of the Conference

Committee Report, Representative Dingell, the Act’s

floor manager, emphasized that the term “discharge of

a pollutant” had been defined in a way to ensure that it

covered both direct and indirect discharges:

It is quite clear that section 502(12) of the bill, in

defining the term “discharge of a pollutant,” does

not in any way contemplate that the discharge be

directly from the point source to the waterway.

The situation is analogous to the court’s holding

in several cases . . . where a discharge from a

shore facility flowed “indirectly,” that is by force

of gravity over land to a waterway.

118 Cong. Rec. 33,758-59 (1972) (emphasis added).

25

This definitive statement by a leading House sponsor

of the Act5 demonstrates that Congress intended to

regulate all discharges from point sources that were

added to surface waters. Plainly, whether discharges

reached those waters directly or by some other route

was immaterial.

Moreover, this position echoes the views of Senator

Muskie, the original sponsor of the Senate version of

the Act. During the Senate floor debate on the

Conference Committee Report, Senator Muskie, who

chaired the Subcommittee on Air and Water Pollution

that drafted the Senate bill and served as the bill’s floor

manager, emphasized that there was no need for a

discharge to be made directly into navigable waters in

order to fall within the Act’s coverage. In his

presentation of the Conference Report to the full

Senate, Senator Muskie noted that both the House and

Senate definition of “discharge” included “direct and

indirect discharges into the navigable waters.” Id. at

33,699.

These comments of the two principal sponsors of the

bills that eventually became the Act, delivered during

consideration of the Conference Committee Report and

passage of the final bill, confirm the Act’s plain

meaning. They affirm that the key term “discharge of

a pollutant” covers both the direct and the indirect

discharge of pollutants to navigable waters from defined

5

Representative Dingell “had introduced the leading

House bill on the subject and was a recognized authority on water

pollution matters.” Andreen, supra, at 280 n.2.

26

point sources. Thus, any such discharges are prohibited

without an NPDES permit.

B. The Legislative History Demonstrates

that the Congressional Decision to

Delegate Primary Responsibility for

Groundwater Regulation to the States

Was Not Intended to Undermine the

Act’s Central Prohibition on the

Discharge of Pollutants to Navigable

Waters

The County and amici offer a two-step argument

based on Congress’s decision to forgo NPDES

regulation of groundwater during the deliberations over

the Act: they (1) suggest that this evinces an intent to

deny the federal government the ability to regulate

discharges into surface waters via groundwater, and (2)

conclude that the County’s discharges, therefore, are

not subject to NPDES permit requirements. See, e.g.,

Pet. Br. at 40-41; Senators’ Br. at 17; U.S. Br. at 25-30;

Brief of Amici Curiae Edison Electric Inst., et al., in

Support of Petitioner at 17-20, Cty. of Maui v. Haw.

Wildlife Fund, No. 18-260 (May 16, 2019). This

argument both lacks support in the legislative history

and misconstrues the context of deliberations and

decisions in the Congress.

Congress’s rejection of efforts to protect groundwater

quality from non-point source pollution cannot fairly be

read to undermine the Act’s central purpose to protect

surface water quality.

Congress made clear its

over-arching intention to protect surface waters from

pollution discharges by enacting section 301 and

27

drafting key definitions such as “discharge of a

pollutant.” Congressional debates over efforts to set

national groundwater standards cannot reasonably be

interpreted to undercut or weaken this objective.

Efforts to protect groundwater in the Act were

concerned primarily with protecting it as a public

resource. Thus, the focus of the floor debate over an

unsuccessful amendment by Representative Aspin to

include groundwater within the NPDES program was

on the question of protecting groundwater quality.

Representative McClory made clear the intention of

that amendment was to ensure groundwater quality:

“All ground-water supplies could be threatened unless

protection is provided in this bill.” 118 Cong. Rec.

10,668 (1972). Representative Harsha noted the

amendment “purports to require water-quality

standards for ground water,” and objected because

“[w]e do not have the knowledge or the technology to

devise water quality standards for ground water.” Id.

(emphasis added).

The Senate’s deliberations reflect a similar focus.

The Report of the Committee on Public Works states:

“[s]everal bills pending before the Committee provided

authority to establish Federally approved standards for

groundwaters.” S. Rep. No. 92-414, at 73 (1971)

(emphasis added). This effort was rejected because “the

jurisdiction regarding groundwaters is so complex and

varied from State to State.” Id.

These deliberations reveal no intention to erode the

central command to protect surface water mandated by

section 301 and related definitions such as “discharge of

28

pollutants.” Rather, the debates base Congress’s

decision to forgo regulating groundwater quality via the

NPDES program on its concern that setting national

groundwater standards was impractical.

Similarly, there is no indication that Congress

intended to limit the prohibition of point source

discharges to those made directly into surface waters.

To the contrary, the legislative history is clear that

indirect discharges were to be covered, and that because

“[w]ater moves in hydrologic cycles [] it is essential that

discharge of pollutants be controlled at the source.” Id.

at 77 (emphasis added). To accomplish this goal, the

Senate Report emphasized that “[t]he permit system

establishes a direct link between the Federal government

and each industrial source of discharge into the

navigable waters.” Id. (emphasis added).

Subsequent legislative history confirms that

Congress did not intend its approach to groundwater or

non-point source pollution to exempt from the NPDES

program any point source discharges conveyed through

groundwater to surface waters. For example, in its

deliberations on the 1974 Safe Drinking Water Act,

Congress stated that the Act already regulated

underground wells whenever there is an associated

“discharge into navigable waters.” H.R. Rep. No.

93-1185, at 536 (1974). And in considering the 1987

Water Quality Act amending the Act, Congress stated

the non-point source program was neither “a substitute

for the point source programs already in place under the

act” nor “an excuse to reduce the effort or relax the

requirements on the point source side.” 133 Cong. Rec.

1279 (1987).

29

In light of this legislative history, it is unsurprising

that the government flatly rejects the County’s “means

of delivery” theory—which it recognizes would result in

an exemption from the NPDES program if there were

“any spatial gap between a point source release” and

navigable waters. See U.S. Br. at 34-35. However,

relying upon EPA’s recent “Interpretive Statement,”

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 (Apr. 23,

2019) [hereinafter Interpretive Statement], it suggests

the Act is best read to categorically exclude from the

NPDES program “releases to and from groundwater.”

U.S. Br. at 35 (quoting Interpretive Statement, supra,

at 16,814). According to the government, the delegation

of primary authority to the states over groundwater

pollution “breaks the causal chain” between a point

source discharging pollutants into groundwater, on the

one hand, and the navigable surface water that receives

those pollutants, on the other. U.S. Br. at 24. Under

the government’s theory, if a pollutant from a point

source so much as touches groundwater before entering

surface waters, the point source is exempt from the Act.

This argument is unpersuasive. First, EPA’s

Interpretive Statement is entitled to respect only to the

extent that it has the “power to persuade.” See U.S. v.

Mead Corp., 533 U.S. 218, 234-35 (2001) (noting that

“interpretations” do not warrant Chevron deference

and quoting Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)). And it lacks that power: it reverses decades of

its own consistent interpretation that the NPDES

30

program “may cover discharges of pollutants from point

sources to surface water that occur through

groundwater.” See, e.g., EPA, Clean Water Act Rule

Response to Comments – Topic 10: Legal Analysis, at

3 8 3 ,

3 8 6 - 8 7 ,

3 9 0

( 2 0 1 5 ) ,

https://www.epa.gov/sites/production/files/2015-06/doc

uments/cwr_response_to_comments_10_legal.pdf; 1991

Final Rule Addressing Water Quality Standards on

Indian Lands, 56 Fed. Reg. 64,892 (Dec. 12, 1991).

Indeed, consistent with that long-standing

interpretation (which prevailed until the Interpretive

Statement was released in April 2019), the government

filed an amicus brief opposing the County below,

stating: “[t]his emphatically is not a case about the

regulation of groundwater. Instead it is about the

regulation of discharges of pollutants to the waters of

the United States.” Brief for the United States as

Amicus Curiae in Support of Plaintiffs-Appellees at 21,

Haw. Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (No.

15-17447) (9th Cir. May 31, 2016). Further: “the

jurisdictional status of groundwater itself is irrelevant

to whether discharges that move through groundwater

to jurisdictional waters require NPDES permits.” Id. at

25 n.5.

Second, as previously noted, allowing polluters to

evade the NPDES program by simply directing their

effluent into highly-permeable ground adjacent to

surface waters—instead of directly into those

waters—would open a significant loophole in the Act

that severely compromises its comprehensive water

pollution control plan and related water quality goals.

As the government stated in its amicus brief before the

31

court of appeals: “exempting discharges through

groundwater could lead to absurd results.” Id. at 16. A

result that does not comport with the central purpose of

a statute should be avoided. King v. Burwell, 135 S. Ct.

2480, 2496 (2015).

Third, in arguing that the NPDES permitting

program does not apply to groundwater pollution, the

government’s new position focuses on the wrong

question. U.S. Br. at 9-10. As the government’s amicus

brief below noted, groundwater pollution is not at issue

here; the issue is control of pollutants discharged to

navigable waters via groundwater. And here, the

groundwater functions as a conduit to the navigable

waters. On that question, both the statutory text and

legislative history are clear: “any” discharges of

pollutants “to” navigable waters from “any” point

source, whether direct or indirect, are barred without

an NPDES permit.

Fourth, the government leans heavily on Congress’s

decision to devolve initial responsibility for

groundwater protection to the states. But that decision

does not address whether pollutants carried from a

point source by groundwater into surface waters runs

afoul of sections 301 and 402.

Finally, the government relies on legislative history

that does not support its conclusion. Id. at 25-30. That

history shows that Congress’s decision to forgo NPDES

coverage for groundwater was not meant to undermine

the Act’s central purpose. In fact, the relevant

committee reports and statements of the Act’s sponsors

in both the House and Senate demonstrate that

32

Congress intended the NPDES permit program to apply

to discharges of pollutants from defined point sources so

long as it was reasonably foreseeable that such

discharges would reach surface waters—whether the

delivery process was direct or via some other route

(including water treatment facilities).

III.

Requiring an NPDES Permit for Point

Source Discharges that Are the Factual

and Proximate Cause of Surface Water

Impairment Does Not Expand the

Scope of the Clean Water Act

Ignoring background principles of causation, the

County and its amici suggest that the ruling below

could lead to a broad expansion of the NPDES program

to cover a wide range of discharges to groundwater.

Pet. Br. at 47; Brief of Amici Curiae State of West

Virginia, et al., in Support of Petitioner at 6, 30-31, Cty.

of Maui v. Haw. Wildlife Fund, No. 18-260 (May 16,

2019); see Brief of Amici Curiae National Association of

Clean Water Agencies, et al., in Support of Petitioner at

12-15, Cty. of Maui v. Haw. Wildlife Fund, No. 18-260

(May 16, 2019). They contend that the NPDES

program could have unlimited reach if this Court

decides not to insert the word “directly” in front of the

word “to” in the Act’s definition of the term “discharge

of a pollutant.” The answer to this concern can be

found in the principle of “proximate causation,” which

serves to bound the reach of the NPDES program.

This Court traditionally looks to background

principles of tort law as a guide in discerning the

meaning of statutory language that invokes a causal

33

relationship. In Babbitt v. Sweet Home Chapter of

Cmtys. for a Great Ore., 515 U.S. 687, 696 n.9 (1995),

this Court assumed that Congress had incorporated

“ordinary requirements of proximate causation and

foreseeability” when enacting the prohibition on

“taking” species protected by the Endangered Species

Act. In her concurring opinion, Justice O’Connor relied

upon cases holding that the doctrine of proximate

causation protects against liability for “remote and

derivative” consequences, and “normally eliminates the

bizarre,” stating that its principles “inject a

foreseeability element into the statute.” Id. at 711-13.

Similarly, in Metro. Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766, 772-74 (1983), this Court

relied upon a proximate causation framework to

conclude that the government was not required by the

National Environmental Policy Act to study the

environmental effects of actions that were too

attenuated from changes in the physical environment.

Applying these principles here addresses the concern

about the potential ramifications of a ruling that follows

the Act’s plain language. These principles would

prevent the bizarre result feared by the government.

They would require that the NPDES program be

limited to regulating discharges that actually reach

surface waters and that, under a proximate cause

analysis, also are “from” the point source. See, e.g.,

Waterkeeper Alliance, Inc. v. U.S. Envtl. Prot. Agency,

399 F.3d 486, 510-11 (2d Cir. 2005) (finding that

pollutant discharges from Concentrated Animal Feeding

Operations (“CAFOs”) that reach surface waters via

34

groundwater are “from” the CAFOs because the CAFOs

are “the proximate source” of those discharges).

Under this approach, the County’s discharges from

its injection wells would be covered by the NPDES

program. As for causation, the pollutants it discharges

have been proven to reach navigable waters. And it is

equally clear that this result was foreseeable: the

County actually intended the result—by designing its

treatment system to discharge pollutants from a point

source through groundwater to the Pacific Ocean. Pet.

App. 8-10.

But proximate cause analysis suggests that other

discharges to groundwater would not be subject to

NPDES permitting. For example, where pollutants

could not reliably be predicted to arrive in surface

waters, or reliably be traced to a point source, the

causation element would not be satisfied and the

discharge would not be deemed “from” the point source.

See, e.g., Rice v. Harken Expl. Co., 250 F.3d 264, 271

(5th Cir. 2001) (finding no evidence either of connection

between groundwater and surface water or of time

interval between discharge into groundwater and

appearance in surface water).

Similarly, even if the discharged pollutants were

shown to have reached surface waters, or were reliably

predicted to do so, the doctrine of proximate cause

would protect the discharger from legal liability if it

were determined that the pollution was too attenuated,

“remote or derivative.” Cf. Greater Yellowstone Coal. v.

Larson, 641 F. Supp. 2d 1120, 1139 (D. Idaho 2009),

aff’d sub nom Greater Yellowstone Coal. v. Lewis, 628

35

F.3d 1143 (9th Cir. 2010) (finding that pollutants would

arrive in surface waters, but not for at least sixty years,

and then in concentrations below the levels established

by state water quality standards).

The government suggests that the Act’s definition of

“discharge of a pollutant,” coupled with “Congress’s

exclusion of groundwater pollution from the NPDES

program, and its conferral upon the States of

responsibility for regulating such pollution,” indicate

that point source discharges into groundwater are not

the “proximate cause” of pollution that flows through

that groundwater to surface waters. U.S. Br. at 24.

The government argues that the interposition of

groundwater between a point source and surface water

“break[s] the causal chain between the two, or

alternatively may be described as an intervening

cause”—thereby avoiding NPDES permitting

requirements. Id. (quoting Interpretive Statement). In

short, the government invokes the doctrine of

proximate causation to suggest that the NPDES permit

requirement should not apply, for the reason that such

a result would not accord with a policy choice it alleges

was made by Congress. Id. at 23-24.

This suggestion is not credible. The government is

claiming that decisions concerning groundwater

pollution amounted to a policy choice to significantly

limit the ability of the NPDES program to protect

surface water quality. Under this theory, after

establishing the NPDES program as the key mechanism

for protecting against “any” unpermitted discharge of

“any” pollutants from “any” point source “to” surface

waters, Congress then implicitly limited the scope of

36

that program elsewhere in the Act by placing

responsibility for groundwater pollution management

primarily in the hands of the states. This interpretation

would work a dramatic alteration in the structure of the

Act; accordingly, it violates basic principles of statutory

construction. As this Court has held: “Congress … does

not alter the fundamental details of a regulatory scheme

in vague terms or ancillary provisions — it does not, one

might say, hide elephants in mouseholes.” Whitman v.

Am. Trucking Ass’n, 531 U.S. 457, 468 (2001).

Proximate causation depends on “policy issues,”

including the extent of the original obligation on the

actor. See U.S. Br. at 23 (citing William L. Prosser,

Handbook of the Law of Torts § 49, at 283 (3d ed.

1964)). And here, Congress made the key policy choice:

it designed the NPDES program to cover “any”

discharges from “any” point sources that add any

pollutants “to” navigable waters. Section 301(a)’s

pivotal language flatly prohibits any pollutant discharge

from a point source to surface waters absent an NPDES

permit. 33 U.S.C. § 1311(a). The legislative history

demonstrates that Congress did not intend to exempt

discharges passing through groundwater from this

requirement. Thus, it is plainly the discharger’s

obligation to avoid “any” discharge of pollutants “from”

point sources “to” surface waters. This is precisely the

policy adopted by the Congress, yet it is now the very

policy that the government endeavors to abandon.

Moreover, the government reads too much into

Congress’s decision to forgo application of the NPDES

program to groundwater pollution. This decision in no

way affected Section 301’s central prohibition against

37

surface water pollution. A fortiori, the decision cannot

reasonably be interpreted as somehow rendering

discharges from point sources “too attenuated” or as

“breaking the causal chain.” See U.S. Br. at 24.

Finally, to the extent the government is suggesting

that pollutant discharges from point sources to surface

waters via groundwater cannot be deemed the

“proximate cause” of pollution because the pollution is

not added “directly” to surface waters, the government

is ignoring settled tort law principles. It is well-settled

that a tortfeasor can be held responsible for the

foreseeable consequences of his actions even if the chain

of factual causation is indirect. See Associated Gen.

Contractors v. Cal. State Council of Carpenters, 459 U.S.

519, 547-49, 548 n.3 (1983) (Marshall, J., dissenting)

(citing Restatement of Torts § 279). Thus, with respect

to the NPDES program, if a discharger adds pollutants

“indirectly” to surface water via groundwater without

securing an NPDES permit, the discharger is liable for

violating the law.

Background principles of proximate causation help

ensure that a straightforward implementation of the

Act’s prohibition against unpermitted discharges from

point sources to navigable waters would not lead to the

kind of expansion of the NPDES program that concerns

the County and supporting amici. Their unfounded

conjectures provide no legitimate basis to undermine

the central objectives and plain language of the Clean

Water Act.

38

CONCLUSION

The Court should affirm the judgment of the court of

appeals.

Respectfully submitted,

STEPHEN E. ROADY

Counsel of Record

MICHELLE B. NOWLIN

SHANNON M. ARATA

DUKE UNIVERSITY SCHOOL OF LAW

210 Science Drive

Box 90360

Durham, NC 27708-0360

(919) 613.7061

steve.roady@duke.edu

Counsel for Amici Curiae

Law Professors

APPENDIX

1a

Amici Curiae Law Professors1

Todd S. Aagaard

Professor of Law

Charles Widger School of Law

Villanova University

Robert W. Adler

Distinguished Professor

The University of Utah College of Law

William L. Andreen

Edgar L. Clarkson Professor of Law

The University of Alabama School of Law

Denise E. Antolini

Professor of Law & Associate Dean

William S. Richardson School of Law

University of Hawai#i at Manoa

Hope M. Babcock

Professor of Law

Director, Environmental Law & Justice Clinic

Georgetown University Law Center

1

Affiliations noted

identification purposes.

here

are

provided

solely

for

2a

Natalie N. Barefoot

Director, Environmental Justice Clinic

and Lecturer in Law

Abess Center for Ecosystem Science

and Policy Scholar

University of Miami School of Law

Reed Benson

Don L. & Mabel F. Dickason Endowed Chair in Law

The University of New Mexico School of Law

Michael C. Blumm

Jefferey Bain Faculty Scholar and Professor of Law

Lewis & Clark Law School

John E. Bonine

Bernard B. Kliks Professor

The University of Oregon School of Law

William W. Buzbee

Professor of Law

Georgetown University Law Center

Kim Diana Connolly

Professor of Law

Vice Dean for Advocacy and Experiential Education

Director, Clinical Legal Education

Director, Environmental Advocacy Clinic,

Animal Law Clinic, &

Puerto Rico Recovery Assistance Clinic

University at Buffalo School of Law,

State University of New York

3a

Robin Kundis Craig

James I. Farr Endowed Chair of Law

The University of Utah College of Law

Rachel E. Deming

Associate Professor of Law

Director, Environmental and Earth Law Clinic

Barry University School of Law

Holly Doremus

James H. House and Hiram H. Hurd

Professor of Environmental Regulation

School of Law

The University of California – Berkeley

Timothy Duane

Professor in Residence

School of Law

The University of San Diego

Josh Eagle

Solomon Blatt Professor of Law

The University of South Carolina School of Law

Kirsten Engel

Charles E. Ares Professor of Law

James E. Rogers College of Law

The University of Arizona

Daniel C. Esty

Hillhouse Professor of Environmental Law

Director, Center for Environmental Law and Policy

Yale University Law School

4a

Robert L. Glicksman

J.B. and Maurice Shapiro Professor

of Environmental Law

George Washington University School of Law

Oliver A. Houck

Professor of Law

David Boies Chair in Public Interest Law

Tulane University School of Law

Craig N. Johnston

Professor of Law

Lewis and Clark Law School

Helen Kang

Professor of Law

Director, Environmental Law and Justice Clinic

Golden Gate University School of Law

Edward Lloyd

Evan M. Frankel Clinical Professor

of Environmental Law

Columbia University School of Law

Nancy C. Loeb

Clinical Associate Professor of Law

Director, Environmental Advocacy Center

Pritzer School of Law

Northwestern University

5a

Sarah A. Matsumoto

Clinical Fellow

Environmental Law Clinic

Sturm College of Law

University of Denver

Patrick C. McGinley

Charles C. Haden II Professor of Law

College of Law

West Virginia University

Todd Ommen

Professor and Managing Attorney

Environmental Litigation Clinic

Elisabeth Haub School of Law

Pace University

Patrick A. Parenteau

Professor of Law and Senior Counsel

Environmental and Natural Resources Law Clinic

Vermont Law School

Justin Pidot

Professor of Law

Co-Director, Environmental Law Program

James E. Rogers College of Law

The University of Arizona

Zygmunt J. B. Plater

Professor of Law

Boston College Law School

6a

Ann Powers

Professor of Law, Emerita

Center for Global Environmental Legal Studies

Elisabeth Haub School of Law

Pace University

Alison Rieser

Professor of Law, Emerita

University of Maine School of Law

Professor of Geography and Environment

The University of Hawai’i

Oday Salim

Clinical Assistant Professor of Law

Director, Environmental Law & Sustainability Clinic

University of Michigan School of Law

Nicholas J. Schroeck

Director of Clinical Programs

and Associate Professor of Law

Mercy Law School

University of Detroit

Deborah A. Sivas

Luke W. Cole Professor of Environmental Law

Director, Environmental & Natural Resources Law

& Policy Program

Director, Environmental Law Clinic

Stanford Law School

7a

Mark Squillace

Ralph J. Moses Professor of Natural Resources Law

The University of Colorado Law School

Mary Christina Wood

Phillip H. Knight Professor of Law

Director, Environmental and

Natural Resources Law Center

The University of Oregon School of Law