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; SIERRA CLUB – MAUI GROUP;

SURFRIDER FOUNDATION; AND

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

__________

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

__________

BRIEF OF

UPSTATE FOREVER AND SAVANNAH RIVERKEEPER

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

__________

FRANK S. HOLLEMAN III

NICHOLAS S. TORREY

LESLIE GRIFFITH

SOUTHERN ENVIRONMENTAL

LAW CENTER

601 West Rosemary Street

Suite 220

Chapel Hill, NC 27516

(919) 967-1450

CHRISTOPHER K. DESCHERER

SOUTHERN ENVIRONMENTAL

LAW CENTER

463 King Street, Suite B

Charleston, SC 29403

(843) 720-5270

MICHAEL K. KELLOGG

Counsel of Record

SEAN A. LEV

THOMAS G. SCHULTZ

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(mkellogg@kellogghansen.com)

July 19, 2019

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT .................................... 3

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

I. The Plain Text Of The CWA Is

Dispositive ........................................................ 6

A. Pollutants Are “From Any Point

Source” If Their Starting Point Is A

Point Source ................................................ 6

1. The Word “from” Indicates a

“Starting Point,” Not a “Means of

Delivery” ................................................ 6

2. The Term “Point Source” Refers

to the Source of a Pollutant, Not

Its Means of Delivery ............................ 9

3. Instead of Limiting the CWA’s

Scope to Additions of Pollutants

to Navigable Waters “Directly”

from a Point Source, Congress

Made Clear That the CWA

Encompasses “Any Addition” of

“Any Pollutants” from “Any Point

Source” ................................................. 12

B. Pollutants Are “Add[ed] . . . To

Navigable Waters” If They Enter

Navigable Waters ..................................... 15

II. The Structure Of The CWA Confirms Its

Plain Meaning ................................................ 17

ii

III. The History And Purpose Of The CWA

Confirm Its Plain Meaning ............................ 20

A. The Legislative History Of The CWA

Shows That Congress Intended To

Require Permits For Both Direct

And Indirect Additions Of Pollutants

To Navigable Waters ................................ 20

B. The Ninth And Fourth Circuits’

Holdings

Comport

With

Longstanding Regulatory Practice

And A Long Line Of Precedent ................ 23

C. Petitioner’s Interpretation Of The

CWA Would Eviscerate The Statute........ 28

IV. Considerations

Of

Administrability

Favor Respondents ......................................... 28

A. The Ninth And Fourth Circuits’

Tests Comport With The CWA’s Text

And Are Easily Administrable ................. 29

B. Petitioner’s Atextual “Means Of

Delivery” Test Conflicts With The

CWA And Introduces Needless

Complexity ................................................ 31

CONCLUSION.......................................................... 33

iii

TABLE OF AUTHORITIES

Page

CASES

Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) ......................................... 20

Bond v. United States,

572 U.S. 844 (2014) ............................................... 9

City of W. Chi. v. U.S. Nuclear Regulatory

Comm’n, 701 F.2d 632 (7th Cir. 1983) ................ 24

EPA v. California ex rel. State Water Res.

Control Bd., 426 U.S. 200 (1976) ...................18, 22

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ............................................ 14

FCC v. AT&T Inc.,

562 U.S. 397 (2011) ............................................... 8

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

139 S. Ct. 1743 (2019) ......................................... 17

Kentucky Waterways All. v. Kentucky Utils. Co.,

905 F.3d 925 (6th Cir. 2018) ............................... 24

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018) ......................................... 15

Los Angeles Cty. Flood Control Dist. v. Natural

Res. Def. Council, Inc., 568 U.S. 78 (2013) ......... 15

Muscarello v. United States,

524 U.S. 125 (1998) ............................................... 8

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ........................................... 28

Northern California River Watch v. Mercer

Fraser Co., No. C-04-4620 SC, 2005 WL

2122052 (N.D. Cal. Sept. 1, 2005) ....................... 28

iv

Oregon Nat. Desert Ass’n v. U.S. Forest Serv.,

550 F.3d 778 (9th Cir. 2008) ............................... 19

Quivira Min. Co. v. EPA,

765 F.2d 126 (10th Cir. 1985) ............................. 24

Rapanos v. United States,

547 U.S. 715 (2006) ........................ 3, 12, 13, 14, 23

S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,

547 U.S. 370 (2006) ............................................. 11

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ......................................... 13

South Florida Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004) ..............11, 12

Star Athletica, L.L.C. v. Varsity Brands, Inc.,

137 S. Ct. 1002 (2017) ..................................... 6, 30

Tennessee Clean Water Network v. Tennessee

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

cert. petition pending, No. 18-1307 (U.S.

Apr. 15, 2019) ...................................................... 24

U.S. Steel Corp. v. Train,

556 F.2d 822 (7th Cir. 1977) ............................... 23

United States v. Plaza Health Labs., Inc.,

3 F.3d 643 (2d Cir. 1993) ................................19, 21

Upstate Forever v. Kinder Morgan Energy

Partners, L.P.:

252 F. Supp. 3d 488 (D.S.C. 2017), vacated

and remanded, 887 F.3d 637 (4th Cir. 2018) ....... 2

887 F.3d 637 (4th Cir. 2018) ...... 2, 3, 24, 27, 29, 30

Washington State Dep’t of Licensing v. Cougar

Den, Inc., 139 S. Ct. 1000 (2019)......................... 27

v

Waterkeeper All., Inc. v. EPA,

399 F.3d 486 (2d Cir. 2005) ................................. 23

Wisconsin Dep’t of Revenue v. William Wrigley,

Jr., Co., 505 U.S. 214 (1992) ............................... 28

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012).............................................. 31

STATUTES AND RULES

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

33 U.S.C. § 1251(a) .............................................. 28

33 U.S.C. § 1251(a)(5) .......................................... 18

33 U.S.C. § 1311(a) ................................................ 3

33 U.S.C. § 1317(d) .............................................. 18

33 U.S.C. § 1329(h)(5)(A)..................................... 19

33 U.S.C. § 1329(i) ............................................... 20

33 U.S.C. § 1362(12) .....................................3, 6, 32

33 U.S.C. § 1362(14) .............................5, 10, 11, 19

Rivers and Harbors Act of 1899, ch. 425,

30 Stat. 1121 ...................................................21, 22

33 U.S.C. § 407 .................................................... 22

Sup. Ct. R.:

Rule 37.3(a) ............................................................ 1

Rule 37.6 ................................................................ 1

LEGISLATIVE MATERIALS

H.R. Res. 1146, 92d Cong. (1972) ............................. 21

vi

S. Rep. No. 92-414 (1971), reprinted in

1972 U.S.C.C.A.N. 3668 .......................5, 17, 18, 21

ADMINISTRATIVE MATERIALS

U.S. Envtl. Prot. Agency:

Final Rule, National Pollutant Discharge

Elimination System Permit Application

Regulations for Storm Water Discharges, 55

Fed. Reg. 47,990 (Nov. 16, 1990) ........................ 25

Notice,

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) ....................................25, 26

Notice, Reissuance of NPDES General

Permits for Storm Water Discharges From

Construction Activities, 63 Fed. Reg. 7858

(Feb. 17, 1998) ..................................................... 25

Office of Water, Nonpoint Source Guidance

(1987), https://bit.ly/2XxzwHN ........................... 19

Proposed

Rule,

National

Pollutant

Discharge Elimination System Permit

Regulation and Effluent Limitations

Guidelines and Standards for Concentrated

Animal Feeding Operations, 66 Fed. Reg.

2960 (Jan. 12, 2001) ............................................ 25

Response to Congress on Use of

Decentralized

Wastewater

Treatment

Systems (1997), https://bit.ly/2JFrUj3 ................ 27

vii

OTHER MATERIALS

American Heritage Dictionary (5th ed. 2011) ............ 6

Geoffrey Chaucer, The Canterbury Tales

General Prologue ................................................... 7

Defs.’ Br. in Supp. of Mot. To Dismiss, Upstate

Forever v. Kinder Morgan Energy Partners,

L.P., No. 8:16-CV-04003-HMH, ECF 14-1

(D.S.C. Feb. 17, 2017) ............................................ 2

John Milton, Paradise Lost, Bk. 1 .............................. 7

Random House Unabridged Dictionary (2d ed.

1993)................................................................... 6, 8

William Shakespeare, Henry IV Part I ...................... 7

Webster’s New International Dictionary (2d ed.

1954)..................................................................... 11

Webster’s Third New International Dictionary

(2002) ................................................3, 4, 6, 8, 9, 15

INTEREST OF AMICI CURIAE 1

Amici are two nonprofit conservation groups that

have an interest in this case because they are parties

to a related case pending before this Court, Kinder

Morgan Energy Partners, L.P. v. Upstate Forever, No.

18-268 (U.S. filed Aug. 28, 2018). In that case, after

the Fourth Circuit held that the Clean Water Act

(“CWA” or “Act”) covers indirect additions of

pollutants from point sources to navigable waters,

Kinder Morgan sought certiorari. This Court then

invited the views of the Solicitor General in both

Kinder Morgan and Maui, ultimately granting

certiorari in Maui and holding Kinder Morgan

pending a decision in this case.

The facts of Kinder Morgan illustrate the operation

of the CWA in a different context than those of Maui.

Kinder Morgan operates an underground petroleum

pipeline that runs near tributaries of the Savannah

River in Anderson County, South Carolina. In 2014,

the pipeline ruptured, pouring more than 369,000

gallons of petroleum into the surrounding soil and

groundwater.

These pollutants quickly reached

Brown’s Creek, a tributary of the Savannah River a

few hundred feet from the pipeline.

Two years after the spill, pollutants from Kinder

Morgan’s pipeline continued to flow through

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amici or their counsel, made a monetary

contribution intended to fund the preparation or submission

of this brief. Pursuant to Rule 37.3(a), counsel for amici also

represent that the parties have consented to the filing of this

brief.

2

groundwater and soil into navigable waters. After

Kinder Morgan refused to stop the flow of pollutants

into the tributaries, amici brought suit in the District

of South Carolina.

Kinder Morgan moved to dismiss the complaint. It

acknowledged that its pipeline was a “point source,”

that Brown’s Creek is “navigable waters,” and that

gasoline from its pipeline had flowed into Brown’s

Creek. But it asserted that it was not required to

remediate this pollution because “[t]he [p]ipeline did

not discharge any product directly into any of these

bodies of water.” Defs.’ Br. in Supp. of Mot. To

Dismiss at 3, No. 8:16-CV-04003-HMH, ECF 14-1

(D.S.C. Feb. 17, 2017) (emphasis added). In other

words, because the pollutants discharged by Kinder

Morgan’s pipeline had reached navigable waters by

way of groundwater, those pollutants were no longer

“from” Kinder Morgan’s pipeline, but were in fact

“from” the groundwater. And because “groundwater

[i]s not a point source,” id. at 12, the CWA did not

apply. The district court granted Kinder Morgan’s

motion to dismiss, adopting its argument that amici

had “failed to allege . . . that the pipeline discharged

petroleum directly into navigable waters.” Upstate

Forever v. Kinder Morgan Energy Partners, L.P., 252

F. Supp. 3d 488, 494 (D.S.C. 2017).

The Fourth Circuit vacated and remanded. The

court emphasized that “[t]he plain language of the

CWA requires only that a discharge come ‘from’ a

‘point source.’ ” Upstate Forever v. Kinder Morgan

Energy Partners, L.P., 887 F.3d 637, 650 (4th Cir.

2018). The court then consulted the dictionary

definition of “from,” which “indicates ‘a starting

point: as (1) a point or place where an actual

physical movement . . . has its beginning.’ ” Id.

3

(quoting Webster’s Third New International

Dictionary 913 (2002) (“Webster’s Third ”)) (emphasis

in Kinder Morgan).

Applying this definition, the Fourth Circuit

reasoned that “a point source is the starting point or

cause of a discharge under the CWA, but that

starting point need not also convey the discharge

directly to navigable waters.” Id. (emphasis added).

In reaching this holding, the court relied in part on

Justice Scalia’s plurality opinion in Rapanos v.

United States, 547 U.S. 715 (2006), which observed

that “the [CWA] does not forbid the ‘addition of any

pollutant directly to navigable waters from any point

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

navigable waters.’ ” 887 F.3d at 650 (quoting 547

U.S. at 743 (plurality)) (emphases in Rapanos). The

court also reasoned that Kinder Morgan’s

interpretation of the CWA “effectively would require

that any discharge of a pollutant cognizable under

the CWA be seamlessly channeled by point sources

until the moment the pollutant enters navigable

waters,” which would “impose a requirement not

contemplated by the Act.” Id. Kinder Morgan’s

certiorari petition followed.

Amici thus have an interest in ensuring that the

Court is presented with a faithful reading of the

plain text of the CWA and a full discussion of the

important statutory interests at stake.

SUMMARY OF ARGUMENT

The CWA prohibits “any addition of any pollutant

to navigable waters from any point source” without a

permit. 33 U.S.C. §§ 1311(a), 1362(12). In this case,

pollutants from underground wells operated by

petitioner County of Maui move through

groundwater into navigable waters off the coast of

4

Hawaii. The question is whether these pollutants

are added to navigable waters “from” petitioner’s

wells (a defined point source) within the meaning of

the statute.

I.

The plain text of the CWA is dispositive.

A. The word “from” “indicate[s] a starting point[,]

as . . . a point or place where an actual physical

movement (as of departure, withdrawal, or dropping)

has its beginning.”

Webster’s Third 913 (first

definition). Here, because the “starting point” of the

pollutants’ movement was a point source, those

pollutants were added “from” that point source.

Petitioner’s argument that the word “from” in the

CWA means “delivered by” is not supported by any of

the dictionaries it cites. It is also contrary to

common usage. When you receive a birthday card

from your mother, that card is “from” your mother

even if it is delivered by the mailman. So, too, are

the pollutants “from” petitioner’s wells even if they

are delivered to navigable waters by way of

groundwater.

B. Also atextual is the suggestion of some amici

that pollutants are not “add[ed] . . . to navigable

waters” if they are first released into groundwater.

There is no dispute here that pollutants from

petitioner’s point source have reached navigable

waters. That was proven scientifically. Under the

terms of the statute, it is irrelevant whether these

pollutants were added to navigable waters directly or

after traveling through some other medium. They

still ended up in navigable waters, and “any” such

addition is covered by the CWA.

II.

The statutory context of the word “from”

within the CWA confirms this definition. The CWA

focuses on controlling the “sources” of pollutants, not

5

the media through which they reach navigable

waters. Indeed, the word “point source” itself is

defined to include many sources of pollutants that

necessarily add pollutants to navigable waters

through other media, such as “well[s],” “rolling stock

[i.e., train cars],” “container[s],” and “concentrated

animal feeding operation[s].” 33 U.S.C. § 1362(14).

III. The history and purpose of the CWA provide

further confirmation. Congress’s express purpose

was to control the discharge of pollutants “at the

source.” S. Rep. No. 92-414, at 7 (1971) (“S. Rep.”),

reprinted in 1972 U.S.C.C.A.N. 3668, 3679.

Petitioner would transfer the focus of the statute

away from the source to the means by which

pollutants reach navigable waters, with absurd

results. If the CWA covers only pollutants added

“directly” from a point source to navigable waters,

then a polluter could design a pipeline that dumped

pollutants into groundwater 10 feet away from a lake

and avoid all liability when those pollutants were

added to the lake.

IV. The Ninth and Fourth Circuits’ standards are

faithful attempts to determine whether a pollutant is

“from” a point source. By contrast, the multi-prong

test proposed by petitioner is not grounded in the

text and could not be administered. Petitioner’s test

concedes that the CWA covers some indirect

additions of pollutants to navigable waters, such as

additions of pollutants through undefined “nonconveyances” (such as air), and that it covers the

original point source in a series, even when that

point source is not the “means of delivery.” These

concessions are ultimately fatal; there is simply no

principled distinction between additions of pollutants

through air or downstream ditches and pipes (which

6

petitioner acknowledges are covered) and additions of

pollutants through groundwater (which petitioner

asserts are exempt).

ARGUMENT

The Plain Text Of The CWA Is Dispositive

A. Pollutants Are “From Any Point Source” If

Their Starting Point Is A Point Source

“ ‘The controlling principle in this case is the basic

and unexceptional rule that courts must give effect to

the clear meaning of statutes as written[,]’ . . . giving

each word its ‘ordinary, contemporary, common

meaning.’ ” Star Athletica, L.L.C. v. Varsity Brands,

Inc., 137 S. Ct. 1002, 1010 (2017) (citations omitted).

Under the CWA, a permit is required for “any

addition of any pollutant to navigable waters from

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

“from any point source” encompasses pollutants

whose starting point is a point source and that travel

to navigable waters through other media, such as

over land, through the air, or via groundwater.

1. The Word “from” Indicates a “Starting

Point,” Not a “Means of Delivery”

The word “from” “indicate[s] a starting point[,] as

. . . a point or place where an actual physical

movement (as of departure, withdrawal, or dropping)

has its beginning.”

Webster’s Third 913 (first

definition); see also Random House Unabridged

Dictionary 770 (2d ed. 1993) (“Random House”)

(“from” is “used to specify a starting point in spatial

movement”) (first definition); American Heritage

Dictionary 705 (5th ed. 2011) (“[u]sed to indicate a

specified place or time as a starting point”) (first

definition). These definitions make clear that the

word “from” – especially when used to describe

7

“actual physical” or “spatial” movement – refers to

the “starting point” or “beginning” of that movement.

Thus, when the CWA refers to pollutants added to

navigable waters “from any point source,” it means

pollutants whose “starting point” is a point source.

Under this plain definition, the medium through

which pollutants travel to reach navigable waters

has no bearing on where they are “from”; what

matters is where their movement to the navigable

water “begins.”

Common usage of the word “from” reinforces this

simple principle. The birthday card is “from” your

mother even if it was delivered to you by a postman.

When you land in San Francisco after leaving from

New York, you have flown “from” New York even if

you had a layover in Chicago.

This understanding of the word “from” – as

designating a point source or place of origin – is as

old as the English language itself. See, e.g., Geoffrey

Chaucer, The Canterbury Tales General Prologue,

lines 12-16 (“Then longen folk to goon on

pilgrimages, . . . And specially, from every shires

ende / Of Engelond, to Canterbury they wende”)

(emphases added); William Shakespeare, Henry IV

Part I, act 3, sc. 1, lines 55-57 (Glendower: “I can call

spirits from the vasty deep.” Hotspur: “Why, so can

I, or so can any man, But will they come when you do

call for them?”); John Milton, Paradise Lost, Bk. 1,

lines 44-47 (“the Almighty Power / Hurld [Satan]

headlong flaming from th’ Ethereal Skie / With

hideous ruine and combustion down / To bottomless

perdition”).

Petitioner argues (at 30-31) that the word “from”

encompasses only a pollutant’s “means of delivery.”

But petitioner relies on two idiosyncratic definitions

8

of the word “from” plucked from the ends of long lists

of dictionary definitions and stripped of context.

Specifically, petitioner asserts (at 29) that “from”

refers to the “means” or “instrumentality” of

something, and then jumps from these definitions to

the assertion that “ ‘from’ means delivered by,” a

phrase not even used in petitioner’s chosen

dictionaries. That is wrong for several reasons.

First, the dictionary definitions on which petitioner

relies – i.e., the “means” or “instrumentality” of

something – are not the standard definitions of the

word “from.” The word “means” does not appear in

any definition of “from” in Random House, and it

appears in Webster’s only in the seventh definition of

the word. Similarly, the word “instrumentality” does

not appear in any Webster’s definition of “from,” and

it appears only in the sixth definition of “from” in

Random House. “[C]onstruing statutory language is

not merely an exercise in ascertaining ‘the outer

limits of [a word’s] definitional possibilities,’ ” FCC v.

AT&T Inc., 562 U.S. 397, 407 (2011) (citation

omitted), and petitioner cannot alter the “ordinary

meaning” of the word “from” by mining the depths of

dictionaries for non-standard definitions, see

Muscarello v. United States, 524 U.S. 125, 131 (1998)

(finding no “linguistic reason to think that Congress

intended to limit the word ‘carries’ in the statute to

any of these special definitions”).

Second, the non-standard dictionary definitions of

“from” offered by petitioner apply in contexts that are

not relevant here. The definitions of “from” as a

“means” or “instrumentality” of something make

clear that they apply when “from” is used to describe

abstract or metaphorical concepts, not physical

movement. For instance, Random House’s definition

9

of “from” as an “instrumentality” gives as an example

“death from starvation.”

Similarly, Webster’s

definition of “from” as a “means” gives as an example

“all his misfortunes spring from that piece of folly.”

By contrast, where “from” is used to describe “actual

physical” or “spatial movement” – such as in the

phrase “from any point source” – it refers to the

“starting point” or “beginning” of something. See

supra p. 6.

Third, even petitioner’s dictionary definitions do

not support petitioner’s second logical leap: that

pollutants “from” a point source must be “delivered

by” that point source. A point source can be the

“means” or “instrumentality” of the addition of

pollutants to navigable waters even if those

pollutants reach navigable waters through other

media, just as one’s “misfortunes [can] spring from

[a] folly” even if subsequent missteps exacerbate

one’s problems. And if the meaning of “from” were

not enough, Congress has expressly chosen to include

“any addition” of pollutants from “any point source”

within the ambit of the CWA. Even if “point source”

were defined as a “means” or “instrumentality,” then,

the CWA covers any means or instrumentality – even

those remote from navigable waters. See infra p. 12.

2. The Term “Point Source” Refers to the

Source of a Pollutant, Not Its Means of

Delivery

The CWA’s use of the term “point source” confirms

that the statutory phrase “from any point source”

refers to the “source” or “cause” of a pollutant – not

its means of delivery.

The ordinary meaning of “source” is “a generative

force or stimulus” or “a point of origin or

procurement.” Webster’s Third 2177; see Bond v.

10

United States, 572 U.S. 844, 861 (2014) (“In settling

on a fair reading of a statute, it is not unusual to

consider the ordinary meaning of a defined term.”).

Thus, when the CWA refers to pollutants “from any

point source,” it refers to pollutants whose “point of

origin” is a point source. The undisputed “point of

origin” of the pollutants in Maui is petitioner’s wells;

in Kinder Morgan, it is a broken pipeline.

The statutory definition of the term “point source”

confirms that a pollutant may be “from” a point

source even if it is “add[ed] . . . to navigable waters”

after traveling through other media. The term “point

source” is defined to include “wells,” “concentrated

feeding animal operations,” “containers,” and “rolling

stock” (i.e., train cars) – all “sources” of pollutants

that do not discharge pollutants directly into

navigable waters. Reading the phrase “from any

point source” to require the direct discharge of

pollutants into navigable waters would effectively

read these point sources out of the CWA.

Petitioner asserts that, because a “point source” is

defined as “any discernible, confined and discrete

conveyance,” 33 U.S.C. § 1362(14) (emphasis added),

a point source must be a “means of carrying or

transporting something.”

Pet. Br. 29 (quoting

Webster’s definition of “conveyance”). Based on this

definition, petitioner argues that a point source must

“always ‘transport’ pollutants” and that the phrase

“from any point source” must therefore mean

“delivered by” a point source. Id.

This argument is unavailing. First, it cannot be

the case that a “point source” must “always

‘transport’ pollutants” from some location to

navigable waters, as petitioner asserts. Rather, the

statutory definition of “point source” includes many

11

sources of pollutants that do not themselves

transport anything, such as “well[s],” “container[s],”

and “concentrated animal feeding operation[s].” 33

U.S.C. § 1362(14).

Petitioner’s interpretation of

“point source” would read these examples out of the

statute.

Second, the complete statutory definition of the

term “point source” (which petitioner omits) clarifies

what is meant by “conveyance”: a point source is a

“discernible, confined and discrete conveyance . . .

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

(emphasis added). In the context of the CWA, a

“discharge” means a “ ‘flowing or issuing out.’ ” S.D.

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

370, 376 (2006) (quoting Webster’s New International

Dictionary 742 (2d ed. 1954)). This makes clear that

the relevant “conveying” or “transporting” of

pollutants under the CWA is the “flowing or issuing

out” of those pollutants “from” a point source – not

the direct transporting of those pollutants by a point

source from some other location.

In this regard, petitioner misreads this Court’s

decision in South Florida Water Management District

v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).

There, a canal “collect[ed] ground water and

rainwater from a 104-square-mile area in south

central Broward County.” Id. at 100. This water

included phosphorous from farms in the area. Id.

When the water in the canal reached a certain level,

a pump station connected to the canal pumped this

polluted water into undeveloped wetlands. The

question was whether the pump station was a “point

source.” Id. at 105. The Court held that it was,

rejecting the argument that the pump station was

not a point source because it did not itself “generate

12

pollutants.” Id. The Court reasoned that “a point

source need not be the original source of the

pollutant; it need only convey the pollutant to

‘navigable waters.’ ” Id.

Petitioner seizes on this excerpt, asserting (at 30)

that this Court “held in Miccosukee” that a point

source must “convey the pollutant to ‘navigable

waters.’ ” But the Miccosukee Court simply did not

address whether a point source must directly add

pollutants to navigable waters or whether pollutants

are “from” a point source even if they pass through

other media. It merely held that a point source need

not “generate” pollutants.”2 That same principle

applies to petitioner’s wells, which collect pollutants

generated by others and discharge those pollutants

into navigable waters.

3. Instead of Limiting the CWA’s Scope to

Additions of Pollutants to Navigable

Waters “Directly” from a Point Source,

Congress Made Clear That the CWA

Encompasses “Any Addition” of “Any

Pollutants” from “Any Point Source”

Had Congress wanted to limit the CWA’s reach to

pollutants that were added to navigable waters

directly from a point source, it would have said so.

As Justice Scalia observed in Rapanos, Congress

could simply have added the qualifier “directly” to

2

Indeed, the “original source” that “generated” the

phosphorus in Miccosukee was the nucelosynthesis that occurs

during a supernova. But as the Miccosukee Court recognized,

the word “from” in the CWA does not refer to the genesis of a

pollutant’s existence. Rather, it refers to the “starting point” of

that pollutant’s “actual physical movement” toward navigable

waters. See supra p. 6.

13

the CWA. See 547 U.S. at 743 (plurality) (“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.’ ”).

Here, however, Congress made clear that the CWA

covers “any” addition of “any pollutant” from “any”

point source. “When used (as here) with a ‘singular

noun in affirmative contexts,’ the word ‘any’

ordinarily ‘refer[s] to a member of a particular group

or class without distinction or limitation’ and in this

way ‘impl[ies] every member of the class or group.’ ”

SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018)

(citations omitted). Thus, in the context of the CWA,

the phrase “any addition” includes both “direct” and

“indirect” additions of pollutants. The phrase “any

point source” refers to point sources that are both

immediately adjacent to and separated from

navigable waters. And the phrase “any pollutant”

encompasses pollutants added directly to navigable

waters and pollutants added through other media.

Petitioner argues (at 32-33) that “any” simply

means “one or some,” such that “any point source”

refers to “a single point source or multiple point

sources.” (Petitioner does not address the CWA’s

other uses of the word “any.”) Under petitioner’s

view, if a pollutant travels through a series of point

sources to reach navigable waters, the CWA covers

the original point source; but if a pollutant travels

from a point source through some other medium, the

original point source is exempt. Id.

But “any” does not mean “one or some”; it means

“every member of the class or group.” Iancu, 138 S.

Ct. at 1354. As long as pollutants are added to

navigable waters from any point source, that point

14

source is covered by the CWA, whether the

pollutants are added directly, through groundwater,

or through a second, downstream point source. It

makes little sense to think that Congress wanted to

cover only direct discharges from a point source, but

created an arbitrary exception to include “series of

point sources” within the scope of the Act’s coverage

by using the phrase “any point source.” “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.’ ” Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612, 1626-27 (2018) (citation omitted).

Yet this is how petitioner attempts to explain

Justice Scalia’s clear statement in Rapanos that the

CWA covers “the discharge into intermittent

channels of any pollutant that naturally washes

downstream.” 547 U.S. at 743 (plurality). Petitioner

claims (at 33) that Justice Scalia meant only that the

CWA covered additions of pollutants “from one or

multiple point sources.” Not so: Justice Scalia’s

opinion explains that CWA liability attaches to point

sources that do not discharge pollutants “directly

into” navigable waters, 547 U.S. at 743 (plurality),

and that pollutants carried from a point source to

navigable waters via “indirect discharge” are subject

to the Act, id. at 744.

Justice Scalia’s

straightforward logic does not hinge on an

idiosyncratic definition of the statutory term “any.”

Petitioner’s concession that the CWA covers some

indirect additions of pollutants to navigable waters is

ultimately fatal. There is no principled distinction

between pollutants that travel from a point source to

navigable waters through another point source and

pollutants that travel to navigable waters through

15

some other medium, such as groundwater.

In

petitioner’s proposed regime, if a pipe bursts and

gasoline from that pipe travels through an irrigation

ditch to navigable waters, that gasoline is “from” the

pipe; but if the same pipe bursts and gasoline from

that pipe travels diffusely over a roadway to

navigable waters, the gasoline is no longer “from” the

pipe, because the roadway is not a “point source.”

Petitioner “does not explain why Congress would

draw such seemingly arbitrary distinctions.” Lamar,

Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752,

1761 (2018).

B. Pollutants Are “Add[ed] . . . To Navigable

Waters” If They Enter Navigable Waters

Petitioner does not dispute that pollutants from its

wells are being “add[ed] . . . to navigable waters,” see

Pet. Br. 7-8, instead disputing that those pollutants

are “from” its wells. Certain amici (including the

United States) take something like the reverse

position, arguing that pollutants are not “add[ed] . . .

to navigable waters” if they are first released into

groundwater. See, e.g., U.S. Br. 12 (“[A] pollutant

that is released to groundwater has not been ‘add[ed]

. . . to navigable waters[’] . . . , even if the

groundwater eventually carries that pollutant to a

jurisdictional surface water.”). These arguments are

just as misguided as petitioner’s.

Pollutants are “add[ed] . . . to navigable waters” if

they reach navigable waters. In the context of the

CWA, the verb “add” means “ ‘to join, annex, or unite

(as one thing to another) so as to bring about an

increase (as in number, size, or importance) or so as

to form one aggregate.’ ” Los Angeles Cty. Flood

Control Dist. v. Natural Res. Def. Council, Inc., 568

U.S. 78, 82 (2013) (quoting Webster’s Third 24).

16

When pollutants reach navigable waters, they “join”

those waters “so as to bring about an increase” in the

amounts of pollutants present in those waters. It is

irrelevant whether these pollutants are added to

navigable waters directly from a point source or

whether they travel from a point source through

some other medium; in either event, they have been

“add[ed]” to navigable waters.

This is the common-sense meaning of “any

addition” of pollutants to navigable waters from any

point source: the amount of pollutants from the

point source increases in the navigable waters.

Accomplishing this addition indirectly rather than

directly does not negate the increase from the point

source.

Again, if there were any doubt about the meaning

of the phrase “addition . . . to navigable waters,” the

CWA’s inclusion of the modifier “any addition”

removes it. See supra p. 12. The inclusion of this

modifier means that the CWA applies as long as

pollutants are “added to” navigable waters – even if

they are also “added to” other media along the way,

such as groundwater.

The United States’ repeated protestations that the

CWA “does not encompass pollutant releases to

groundwater,” U.S. Br. 15, is thus a red herring.

Neither respondent nor amici have argued that the

addition of pollutants to groundwater alone triggers

liability under the CWA. See, e.g., Resp. Br. 43

(“EPA’s premises . . . lead only to the conclusion that

the [CWA’s] prohibition[s] . . . do not apply to

discharges that add pollutants to groundwater

alone.”).

Rather, the trigger for liability under the CWA is

the addition of pollutants “to navigable waters.”

17

Those pollutants are “add[ed] . . . to navigable

waters” even if they pass through other media,

including groundwater.

As the Ninth Circuit

explained: “We are not suggesting that the CWA

regulates all groundwater. Rather, in fidelity to the

statute, we are reinforcing that the Act regulates

point source discharges to a navigable water, and

that liability may attach when a point source

discharge is conveyed to a navigable water through

groundwater.” Pet. App. 16 n.2.

In any event, the United States’ grudging

concession (at 34) that “point source releases of

pollutants that travel[ ] over land to jurisdictional

surface waters [may] constitute[ ] unpermitted

‘discharges’ prohibited by [the CWA]” ultimately

dooms its argument in the same way it dooms

petitioner’s. See supra pp. 14-15. There is no

functional difference between a pollutant that

“travels over land to jurisdictional surface waters”

and a pollutant that travels through groundwater to

those same waters. If one pollutant has been “added

to” navigable waters, then so has the other.

The Structure Of The CWA Confirms Its

Plain Meaning

The CWA’s structure reinforces the simple

principle that a pollutant is added to navigable

waters “from” a point source even if it passes through

other media. See Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743, 1748 (2019) (“ ‘[T]he words of a

statute must be read in their context and with a view

to their place in the overall statutory scheme.’ ”)

(citation omitted).

The CWA replaced a broken 1965 regulatory

regime in which “water quality standards were to be

set as the control mechanism.” S. Rep. at 8, 1972

18

U.S.C.C.A.N. 3675. Under that framework, “[i]f the

wastes discharged by polluters reduce[d] water

quality below [specified] standards, action may be

begun against the polluters.”

Id. at 4, 1972

U.S.C.C.A.N. 3671. That system proved unworkable

because it “focused on the tolerable effects rather

than the preventable causes of water pollution . . . [,]

mak[ing] it very difficult to develop and enforce

standards to govern the conduct of individual

polluters.” EPA v. California ex rel. State Water Res.

Control Bd., 426 U.S. 200, 202-03 (1976).

The CWA effected “a major change in the

enforcement mechanism of the Federal water

pollution control program” by switching “from water

quality standards to effluent limits” – direct

restrictions on the discharges of pollutants at their

points of origin. S. Rep. at 7, 1972 U.S.C.C.A.N.

3675.

These effluent limits were intended to

“eliminat[e] waste at the source,” rather than

treating the effects of that pollution. Id. at 12, 1972

U.S.C.C.A.N. 3679.

The CWA thus pursues its goal of “restor[ing] and

maintain[ing] . . . the Nation’s waters” by targeting

the “sources” of pollutants. See, e.g., 33 U.S.C.

§ 1251(a)(5) (“it is the national policy that areawide

waste treatment management planning processes be

developed and implemented to assure adequate

control of sources of pollutants in each State”)

(emphasis added).

In the context of the CWA, a “source” is generally a

man-made cause of pollution, as evidenced by the

CWA’s numerous references to the “operation” and

“ownership” of such sources. See, e.g., id. § 1317(d)

(“[I]t shall be unlawful for any owner or operator of

any source to operate any source in violation of any

19

such effluent standard or prohibition or pretreatment

standard.”); see also United States v. Plaza Health

Labs., Inc., 3 F.3d 643, 646 (2d Cir. 1993) (“The

[CWA] generally targets industrial and municipal

sources of pollutants, as is evident from a perusal of

its many sections.”). Naturally occurring elements –

such as groundwater – are not “sources” of pollutants

under the CWA.

The CWA divides regulatory responsibility between

the federal and state governments based upon the

“source” of the pollutant: Discharges from defined

“point sources” are subject to federal permitting

requirements, while additions of pollutants from

nonpoint sources are regulated by the States. See

Oregon Nat. Desert Ass’n v. U.S. Forest Serv., 550

F.3d 778, 780 (9th Cir. 2008) (“The CWA’s disparate

treatment of discharges from point sources and

nonpoint sources is an organizational paradigm

of the Act.”). The CWA defines “point sources” to

include such causes of pollution as “pipe[s],” “well[s],”

and “container[s].” The CWA itself does not define

“nonpoint sources,” but does give a few examples of

such

sources,

including

“mining

activities,”

33 U.S.C. § 1329(h)(5)(A), “agricultural stormwater

discharges,” id. § 1362(14), and “return flows from

irrigated agriculture,” id. EPA guidance explains

that “nonpoint source pollution does not result from a

discharge at a specific, single location (such as a

single pipe).” EPA Office of Water, Nonpoint Source

Guidance 3 (1987), https://bit.ly/2XxzwHN.

The CWA’s clear focus on the sources of pollutants

confirms that the word “from,” as used in the CWA,

refers to the source of the pollutants – i.e., their

“point of origin” – and not to the means by which

pollutants are delivered to navigable waters from a

20

source. Indeed, nowhere does the CWA impose

liability or divide regulatory responsibility based on

the media through which pollutants pass. The

sections of the CWA that mention “groundwater” do

so in the context of “protecting groundwater quality”

as part of separate programs, 33 U.S.C. § 1329(i)

(heading) (emphasis added). The CWA does not treat

“groundwater” or any other natural medium as a

“source” of pollutants. Rather, the relevant “source”

of pollutants, under the CWA, is the structure that

discharges the pollutants. Again, in Maui, that

source is petitioner’s wells; in Kinder Morgan, it is

Kinder Morgan’s pipeline.

The History And Purpose Of The CWA

Confirm Its Plain Meaning

There is no need to resort to legislative history or

appeals to policy to discern the plain meaning of the

CWA. See Azar v. Allina Health Servs., 139 S. Ct.

1804, 1814 (2019) (“[L]egislative history is not the

law.”). But to the extent the Court determines that

such considerations are relevant, they simply

reinforce the CWA’s plain meaning.

A. The Legislative History Of The CWA

Shows That Congress Intended To Require

Permits For Both Direct And Indirect

Additions Of Pollutants To Navigable

Waters

Legislative history provides ample evidence that

Congress intended for the CWA to regulate

discharges of pollutants to navigable waters through

other media, including groundwater. The CWA

reflected Congress’s judgment that “it is essential

that discharge of pollutants be controlled at the

source,” replacing an outmoded 1965 standard based

on “the maximum level of pollution allowable in

21

interstate waters.”

S. Rep. at 4, 77, 1972

U.S.C.C.A.N. 3671, 3742.

Congress abandoned its failed attempt to deal with

the effects of pollutants after they entered navigable

waters and, with the Act, switched to controlling

pollutants “at the source,” including both direct and

indirect additions of pollutants to navigable waters

from that source. Thus, Representative Dingell, in

reporting the conference committee bill to the House,

explained that “[i]t is quite clear that [the CWA], 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.” H.R. Res.

1146, 92d Cong. (1972) (emphasis added).

Groundwater was no exception; as the Senate report

accompanying the 1972 passage of the CWA

explained, “it must be remembered that rivers,

streams and lakes themselves are largely supplied

with water from the ground – not surface runoff.” S.

Rep. at 73, 1972 U.S.C.C.A.N. 3739. The Report thus

recognized the “essential link between ground and

surface waters and the artificial nature of any

distinction.” Id.

Moreover, “[t]he 1972 [C]ongress modeled the

[CWA] after the Rivers and Harbors Act of 1899

[RHA].” Plaza Health Labs., 3 F.3d at 647-48 (citing

S. Rep. at 5, 76, 1972 U.S.C.C.A.N. 3672, 3738). The

RHA, like the CWA, targeted man-made causes of

pollution that could reach navigable waters through

natural causes, making it illegal to “deposit . . .

material of any kind in any place on the bank of any

navigable water, or on the bank of any tributary of

any navigable water, where the same shall be liable

to be washed into such navigable water, either by

ordinary or high tides, or by storms or floods, or

22

otherwise.” 33 U.S.C. § 407. Congress’s decision to

model the CWA on the RHA – which covered

discharges of pollutants into areas where they were

“liable to be washed into . . . navigable water[s],” id.,

not only discharges directly into navigable waters –

lends further support to the notion that the CWA is

intended to cover the indirect discharge of pollutants

into navigable waters.

Petitioner nevertheless points (at 40) to the defeat

of a proposed amendment to the CWA by

Representative Aspin. That is another red herring:

Representative Aspin’s amendment would have

triggered CWA liability for any addition of pollutants

to groundwater – regardless of whether they ever

reached navigable waters. As noted supra p. 16,

neither respondent nor amici have argued that the

CWA covers additions of pollutants to groundwater –

only that the CWA covers additions of pollutants to

navigable waters through groundwater.

Petitioner also asserts that its “means of delivery”

test comports with Congress’s intent “to make

enforcement easier on regulators [in the CWA] . . . ‘by

making it unnecessary to work backward from an

overpolluted body of water to determine which point

sources are responsible and which must be abated.’ ”

Pet. Br. 39 (quoting California ex rel. State Water

Res. Control Bd., 426 U.S. at 204). Of course,

limiting the CWA to discharges of pollutants

“directly from” point sources to navigable waters

would “make enforcement easier on regulators” by

leaving them with far less to regulate than the

statutory text covers, but that was not the intent of

Congress. Rather, Congress’s intent was to target

the “sources” of pollutants instead of the effects of

those pollutants. See supra p. 21. Petitioner’s

23

“means of delivery” test would frustrate this purpose

by exempting many point sources of pollutants that

cause the addition of pollutants to navigable waters,

hamstringing regulators in much the same way that

the prior effects-based regime did.

Moreover, Kinder Morgan’s undisputed pollution of

navigable waters with large amounts of gasoline

from its pipe – like the fact that the Maui facility was

designed to discharge to the ocean – shows that

determining “which point sources are responsible” is

often readily apparent and provides no grounds for

departing from the statutory text.

B. The Ninth And Fourth Circuits’ Holdings

Comport With Longstanding Regulatory

Practice And A Long Line Of Precedent

The Ninth and Fourth Circuits’ decisions accord

with those of prior courts – including this Court –

over decades, as well as EPA’s decades-long

implementation of the CWA. Thus, contrary to

petitioner’s assertions (at 44), the Ninth and Fourth

Circuits’ holdings would not “disrupt[ ] ” the status

quo; they are the status quo.

“[F]rom the time of the CWA’s enactment, lower

courts have held that the discharge into intermittent

channels of any pollutant that naturally washes

downstream likely violates [the CWA], even if the

pollutants discharged from a point source do not emit

‘directly into’ covered waters, but pass ‘through

conveyances’ in between.” Rapanos, 547 U.S. at 743

(plurality) (citing authority). The Second, Fourth,

Seventh, Ninth, and Tenth Circuits have so held.

See Waterkeeper All., Inc. v. EPA, 399 F.3d 486, 515

(2d Cir. 2005) (CWA covers pollutants that “enter

surface water via groundwater”); U.S. Steel Corp. v.

Train, 556 F.2d 822, 852 (7th Cir. 1977) (the CWA

24

“includes the authority to control disposals into

[underground] wells”), overruled on other grounds by

City of West Chicago v. U.S. Nuclear Regulatory

Comm’n, 701 F.2d 632 (7th Cir. 1983); Quivira Min.

Co. v. EPA, 765 F.2d 126, 130 (10th Cir. 1985) (CWA

covers discharges “through underground acquifers

[sic] . . . into navigable-in-fact streams”); Kinder

Morgan, 887 F.3d at 651; Pet. App. 24.

The only exceptions to this judicial consensus are a

recent pair of Sixth Circuit decisions by divided

panels. See Kentucky Waterways All. v. Kentucky

Utils. Co., 905 F.3d 925 (6th Cir. 2018); Tennessee

Clean Water Network v. Tennessee Valley Auth., 905

F.3d 436 (6th Cir. 2018), cert. petition pending, No.

18-1307 (U.S. Apr. 15, 2019). But both decisions rely

critically on questionable interpretations of a term –

“into” – that appears nowhere in the relevant

statutory text. See, e.g., Tennessee Clean Water, 905

F.3d at 444 (“The term ‘into’ indicates directness. It

refers to a point of entry. Thus, for a point source to

discharge into navigable waters, it must dump

directly into those navigable waters—the phrase

‘into’ [sic] leaves no room for intermediary mediums

to carry the pollutants.”) (citations omitted). The

word “into” appears only in a wholly separate

provision of the CWA – the definition of “effluent

limitation” – that has no relevance here. See id. at

451 (Clay, J., dissenting) (“[T]he majority’s quoted

definition of ‘effluent limitation’ from § 1362(11) –

the supposed origin of the loophole – is not relevant

to this case.”). Kentucky Waterways and Tennessee

Clean Water thus illustrate that the only way to

reach petitioner’s desired holding is by replacing the

actual words of the CWA’s relevant provision with

more convenient ones.

25

EPA has for decades followed this judicial

consensus. As the agency explained to the Ninth

Circuit in 2016, its “longstanding position is that a

discharge from a point source to jurisdictional

surface waters that moves through groundwater with

a direct hydrological connection comes under the

purview of the CWA’s permitting requirements.”

U.S. C.A. Br. 5, Dkt. #40. EPA espoused this

interpretation at least as early as 1990, see Final

Rule, National Pollutant Discharge Elimination

System Permit Application Regulations for Storm

Water Discharges, 55 Fed. Reg. 47,990, 47,997 (Nov.

16, 1990), and faithfully applied that interpretation

for decades after, see, e.g., Notice, Reissuance of

NPDES General Permits for Storm Water Discharges

From Construction Activities, 63 Fed. Reg. 7858,

7881 (Feb. 17, 1998) (“EPA interprets the [CWA] to

regulate discharges to surface water via groundwater

where there is a direct and immediate hydrologic

connection”); Proposed Rule, National Pollutant

Discharge Elimination System Permit Regulation

and Effluent Limitations Guidelines and Standards

for Concentrated Animal Feeding Operations, 66 Fed.

Reg. 2960, 3017 (Jan. 12, 2001) (similar).

EPA

recently

abandoned

this

long-held

understanding. See Notice, 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).

But EPA’s about-face merely illustrates the mental

gymnastics required to avoid the CWA’s plain text:

EPA now asserts that “the statute categorically

excludes releases to and from groundwater from the

permitting requirements of the [CWA].”

Id. at

26

16,820. But EPA identifies no such exclusion in the

text of the CWA, and it concedes that its rule is not

based on any “single provision” of the CWA, id. at

16,814, but rather on “a holistic analysis of the

statute, its text, structure, and legislative history,”

id. at 16,811.

EPA dismisses its own prior statements as

“collateral” and tries to muddy its previous guidance

by pointing to a handful of prior occasions on which

EPA noted that “discharges to groundwater are not

subject to the CWA.” Id. at 16,817. By now, this is a

familiar sleight-of-hand; this case deals not with

discharges to groundwater, but with discharges

through groundwater to navigable waters. See supra

p. 16. On this latter question, both EPA and prior

courts have been clear that the Act applies.

Petitioner is thus wrong to characterize (at 44) the

Ninth and Fourth Circuits’ holdings as “expansive,

novel, and disruptive.” Circuit courts and agencies

have for decades applied a straightforward and

uniform interpretation of the CWA that accords with

its plain text. The Ninth and Fourth Circuits’

holdings are simply the latest decisions in this long

line of precedent.

For the same reasons, petitioner is wrong to assert

(at 45) that the Ninth and Fourth Circuits’ holdings

“would

vastly

expand

NPDES

permitting.”

Petitioner suggests (at 46-47), without serious

analysis, that all 650,000 underground injection

control wells in the United States and all 22 million

American homes that use septic tanks would become

subject to permitting requirements under the Ninth

and Fourth Circuits’ tests. But EPA has applied the

same test since 1990, and petitioner’s regulatory

hellscape has not materialized. That is because, as

27

both the Fourth and Ninth Circuits made clear, “a

discharge through ground water does not always

support liability under the Act.

Instead, the

connection between a point source and navigable

waters must be clear.” Kinder Morgan, 887 F.3d at

651 (citation omitted); see Pet. App. 24 (rejecting

notion that “the [CWA] is triggered when pollutants

reach navigable water, regardless of how they get

there”).

Thus, while EPA has long recognized that the rare

septic systems “which discharge to a surface water

must, and can,” meet requirements of the NPDES

permitting program,3 widespread NPDES permit

requirements have proven unnecessary because

septic systems should not discharge to surface waters

in practice, either directly or indirectly. This is

unsurprising, given that existing siting requirements

already require locating conventional septic systems

to avoid discharges of pollutants to surface waters.

In short, the “sweeping and transformative

consequences” prophesied by petitioner (at 52) have

never materialized during the nearly three decades

that EPA has applied the CWA to indirect additions

of pollutants to navigable waters. See Washington

State Dep’t of Licensing v. Cougar Den, Inc., 139 S.

Ct. 1000, 1020 (2019) (Gorsuch, J., concurring in the

judgment) (rejecting a “hypothetical parade of

horribles [that] has yet to take its first step in the

real world”).4

3 EPA, Response to Congress on Use of Decentralized

Wastewater Treatment Systems 5 (1997), https://bit.ly/2JFrUj3.

The decision below is also consistent with “the venerable

maxim de minimis non curat lex (‘the law cares not for trifles’)”;

4

28

C. Petitioner’s Interpretation Of The CWA

Would Eviscerate The Statute

The CWA’s express purpose is “to restore and

maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

By contravening the statutory text, petitioner’s novel

interpretation of the CWA would frustrate that

purpose and create a dangerous loophole in the

statute under which any polluter could discharge

pollutants into a lake, river, or stream simply by

burying the source of that discharge a few feet from

the water’s edge. As one court has observed:

[I]t would hardly make sense for the CWA to

encompass a polluter who discharges pollutants

via a pipe running from the factory directly to the

riverbank, but not a polluter who dumps the

same pollutants into a man-made settling basin

some distance short of the river and then allows

the pollutants to seep into the river via the

groundwater.

Northern California River Watch v. Mercer Fraser

Co., No. C-04-4620 SC, 2005 WL 2122052, at *2 (N.D.

Cal. Sept. 1, 2005). Petitioner has no answer for

these arbitrary results.

Considerations Of Administrability Favor

Respondents

As with legislative history, there is no need for the

Court to consider administrability in determining the

plain meaning of the CWA. See New Prime Inc. v.

invoking it does not add words to the statute because it “is part

of the established background of legal principles against which

all enactments are adopted.” Wisconsin Dep’t of Revenue v.

William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992).

29

Oliveira, 139 S. Ct. 532, 543 (2019) (“If courts felt

free to pave over bumpy statutory texts in the name

of more expeditiously advancing a policy goal, we

would . . . thwart rather than honor ‘the effectuation

of congressional intent.’ ”) (alterations in original;

citation omitted). But to the extent the Court deems

such considerations relevant, they again favor

respondents. The Ninth and Fourth Circuits’ tests

are firmly grounded in the statutory text: at bottom,

they simply ask whether a pollutant is “from” a point

source. By contrast, petitioner’s proposed multifactor test injects questions that appear nowhere in

the statutory text – such as whether a pollutant

travels by air, through groundwater, or through

another point source – and ultimately leads to

bizarre and unworkable results.

A. The Ninth And Fourth Circuits’ Tests

Comport With The CWA’s Text And Are

Easily Administrable

Both the Ninth and Fourth Circuits reached the

unremarkable conclusion that “the CWA requires

only that a discharge come ‘from’ a ‘point source,’ ”

but “does not require a discharge directly to

navigable waters . . . [or] a discharge directly from a

point source.” Kinder Morgan, 887 F.3d at 650

(emphases added); see Pet. App. 19 (“[A]n indirect

discharge from a point source to a navigable water

suffices for CWA liability to attach.”). Both courts

then addressed how to determine whether a

pollutant was “from” a point source, reaching

semantically distinct but functionally similar

conclusions.

The Ninth Circuit held that pollutants present in

navigable waters must be “fairly traceable” to a point

source to be “from” that source under the CWA. Pet.

30

App. 24. The Fourth Circuit similarly reasoned that

pollutants discharged by a point source into

groundwater that subsequently reach navigable

waters can be considered “from” that point source if

there is a “direct hydrological connection” between

the groundwater into which the pollutants are

initially discharged and the navigable waters they

ultimately reach. Kinder Morgan, 887 F.3d at 651.

At the end of the day, though, the Fourth Circuit

“s[aw] no functional difference between the Ninth

Circuit’s fairly traceable concept and the direct

hydrological connection concept developed by EPA

that we adopt today.” Id. at 651 n.12.

Petitioner argues (at 31) that these tests “read[ ]

. . . words into the CWA . . . that are not there.” To

the contrary, both tests represent attempts by

different courts to describe the necessary fact-specific

inquiry a court must undertake in any CWA liability

case: whether a pollutant is added to navigable

waters “from” a point source. Such tests necessarily

add gloss to the statutory language, but they remain

helpful and appropriate as long as they are

“grounded in the text of the statute.” Star Athletica,

137 S. Ct. at 1015.

This Court need not decide today which

formulation, if either, more appropriately effectuates

the statutory language. The issue before the Court is

simply whether the CWA requires a permit when

pollutants are added from a point source to navigable

waters

through

an

intermediary

such

as

groundwater. Pet. Br. i. The Ninth Circuit itself

“le[ft] for another day the task of determining when,

if ever, the connection between a point source and a

navigable water is too tenuous to support liability

under the CWA,” Pet. App. 25, and this Court need

31

not reach an issue not passed upon by the court

below, see Zivotofsky ex rel. Zivotofsky v. Clinton, 566

U.S. 189, 201 (2012) (“Ordinarily, we do not decide in

the first instance issues not decided below.”).

B.

Petitioner’s

Atextual

“Means

Of

Delivery” Test Conflicts With The CWA

And Introduces Needless Complexity

In contrast to the Ninth and Fourth Circuits’ tests,

which simply implement the statutory term “from

any point source,” petitioner’s convoluted multifactor test – under which the CWA covers some

indirect additions of pollutants to navigable waters

but not others – lacks any textual basis and leads to

arbitrary and bizarre results. Petitioner’s proffered

test takes simple statutory language – “any addition

of any pollutant to navigable waters from any point

source” – and transforms it into a flow chart that

occupies almost an entire page of petitioner’s brief (at

54).

Under petitioner’s test, the CWA covers (1)

pollutants added directly from a point source to

navigable waters; (2) pollutants added from a point

source to navigable waters through another point

source; and (3) pollutants added from a point source

to navigable waters through something that is “not a

conveyance.”

Petitioner’s test thus concedes that the CWA covers

at least two categories of pollutants that are added

from point sources to navigable waters through other

media. Petitioner tries to tie its first exception –

pollutants that travel from a point source to

navigable waters through a second point source – to

the word “any” in the statute. As discussed supra pp.

13-14, that attempt fails. Petitioner cannot plausibly

32

separate discharges through a separate downstream

point source, on the one hand, and discharges

through other media, on the other.

Petitioner does not even attempt (at 54) to square

its second proffered exception – pollutants that reach

navigable waters through something that is “not a

conveyance” – with its central contention that the

word “from” captures only the immediate source of

pollutants. Though petitioner never explains what it

means to be “not a conveyance,” this latter exception

appears to be petitioner’s attempt to carve out

situations where, for example, “there is air between a

pipe and the river below.” But there is no principled

distinction between pollutants that fall through air

and pollutants that flow through groundwater: in

both cases, natural forces (such as gravity) “deliver”

the pollutants to navigable waters. Petitioner’s

arbitrary exception thus simply illustrates that

impossibility of applying petitioner’s interpretation

consistently and reconciling it with the statutory

text.

In any event, petitioner’s attempt to carve out

exceptions for some indirect discharges ultimately

dooms its argument that the CWA covers only point

sources that “deliver” pollutants directly to navigable

waters.

There is simply no way to reconcile

petitioner’s convoluted series of exceptions with the

straightforward statutory text, which covers “any

addition of any pollutant to navigable waters from

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

is either “from” a point source or it is not, but the

origin of that pollutant does not depend on whether it

passes through air, groundwater, another point

source, or some other medium. If Congress wanted

33

to create such a complex regulatory regime, it would

have said so.

CONCLUSION

The Ninth Circuit’s judgment should be affirmed.

Respectfully submitted,

FRANK S. HOLLEMAN III

NICHOLAS S. TORREY

LESLIE GRIFFITH

SOUTHERN ENVIRONMENTAL

LAW CENTER

601 West Rosemary Street

Suite 220

Chapel Hill, NC 27516

(919) 967-1450

CHRISTOPHER K. DESCHERER

SOUTHERN ENVIRONMENTAL

LAW CENTER

463 King Street, Suite B

Charleston, SC 29403

(843) 720-5270

MICHAEL K. KELLOGG

Counsel of Record

SEAN A. LEV

THOMAS G. SCHULTZ

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(mkellogg@kellogghansen.com)

July 19, 2019