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

No. 18-260

IN THE

COUNTY OF MAUI, HAWAII,

Petitioner,

v.

HAWAII WILDLIFE FUND, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR AMICI CURIAE

FORMER ADMINISTRATORS OF THE

U.S. ENVIRONMENTAL PROTECTION AGENCY

IN SUPPORT OF RESPONDENTS

Sarah E. Harrington

Counsel of Record

Erica Oleszczuk Evans

GOLDSTEIN & RUSSELL. P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

sh@goldsteinrussell.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

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

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

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

I.

For Decades, EPA Has Correctly Interpreted

The CWA To Apply To Point-Source

Discharges Of Pollutants To Surface Waters

Via Hydrologically Connected Groundwater ....... 3

II. Accepting The Solicitor General’s Newfound

Position Would Require A Significant Retreat

From EPA’s Longstanding Enforcement Of

The CWA.............................................................. 20

CONCLUSION .......................................................... 25

APPENDIX: List of Amici Curiae ............................ 1a

ii

TABLE OF AUTHORITIES

Cases

Bank of Am. Corp. v. City of Miami,

137 S. Ct. 1296 (2017) ............................................ 15

Chevron U.S.A. Inc. v.

Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ................................................ 12

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ................................................ 12

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) .......................................... 12, 14

Idaho Rural Council v. Bosma,

143 F. Supp. 2d 1169 (D. Idaho 2001) ................... 17

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) .................................................. 4

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................ 15

Middlesex Cty. Sewerage Auth. v.

Nat’l Sea Clammers Ass’n,

453 U.S. 1 (1981) .................................................... 24

N. Cal. River Watch v. Mercer Fraser Co.,

2005 WL 2122052 (N.D. Cal. Sept. 1, 2005).......... 19

Rapanos v. United States,

547 U.S. 715 (2006) ................................................ 14

Upstate Forever v. Kinder Morgan Energy

Partners, L.P.,

887 F.3d 637 (4th Cir. 2018) .................................. 22

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ................................................ 20

iii

Statutes

Clean Air Act, 42 U.S.C. § 7401 et seq. ..................... 14

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

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

33 U.S.C. § 1311(a) .................................... 3, 4, 8, 12

33 U.S.C. § 1342 ...................................................... 4

33 U.S.C. § 1342(a)(1).............................................. 4

33 U.S.C. § 1342(b) .................................................. 4

33 U.S.C. § 1342(b)(1)(A) ....................................... 24

33 U.S.C. § 1344 .................................................... 23

33 U.S.C. § 1362(6) .................................................. 4

33 U.S.C. § 1362(7) .................................................. 4

33 U.S.C. § 1362(11) ................................................ 4

33 U.S.C. § 1362(12) .................................. 3, 4, 5, 13

33 U.S.C. § 1362(12)(A) ................................... 14, 16

33 U.S.C. § 1362(12)(B) ......................................... 16

33 U.S.C. § 1362(14) ................................................ 4

Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500,

86 Stat. 816 .............................................................. 9

Resource Conservation and Recovery Act of

1976, 42 U.S.C. § 6901 et seq. ................................ 24

Safe Drinking Water Act,

42 U.S.C. § 300f et seq. ............................................. 5

42 U.S.C. § 300h(b)(1) ............................................. 5

42 U.S.C. § 300h(d)(2) ............................................. 5

iv

Regulations

40 C.F.R. § 122.2 .......................................................... 4

40 C.F.R. § 122.28 ........................................................ 5

40 C.F.R. § 122.44(k) ................................................... 4

1991 Final Rule Addressing Water Quality

Standards on Indian Lands,

56 Fed. Reg. 64,876 (Dec. 12, 1991)............. 6, 15, 16

Clean Water Rule: Definition of “Waters of the

United States,” 80 Fed. Reg. 37,054

(June 29, 2015) ....................................................... 11

Final General NPDES Permit for Concentrated

Animal Feeding Operations (CAFO) in Idaho

ID-G-01-0000, 62 Fed. Reg. 20,177

(Apr. 25, 1997) .................................................... 6, 16

Final National Pollutant Discharge Elimination

System (NPDES) General Permit for

Stormwater Discharges from Construction

Activities, 82 Fed. Reg. 6534 (Jan. 19, 2017) ........ 21

Final National Pollutant Discharge Elimination

System (NPDES) Pesticide General Permit for

Point Source Discharges from the Application

of Pesticides; Reissuance, 81 Fed. Reg. 75,816

(Nov. 1, 2016) ......................................................... 21

Hazardous Waste Identification Rule (HWIR):

Revisions to the Mixture and Derived-From

Rules, 66 Fed. Reg. 27,266 (May 16, 2001) ............. 7

National Pollutant Discharge Elimination

System Permit Application Regulations for

Storm Water Discharges, 55 Fed. Reg. 47,990

(Nov. 16, 1990) ................................................... 5, 16

v

National Pollutant Discharge Elimination

System Permit Regulation and Effluent

Limitation Guidelines and Standards for

Concentrated Animal Feeding Operations

(CAFOs), 68 Fed. Reg. 7176 (Feb. 12, 2003) ... 10, 11

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).................. passim

Notice of Lodging of Consent Decree Pursuant to

the Clean Water Act; ConAgra, Inc.,

63 Fed. Reg. 55,409 (Oct. 15, 1998) ......................... 7

Proposed General NPDES Permit for

Concentrated Animal Feeding Operations

(CAFO) in Idaho, 60 Fed. Reg. 44,489

(Aug. 28, 1995) ......................................................... 6

Reissuance of NPDES General Permits for

Storm Water Discharges from Construction

Activities, 63 Fed. Reg. 7858 (Feb. 17, 1998) .......... 6

Rules

Sup. Ct. R. 37.6 ............................................................ 1

Other Authorities

Envtl. Prot. Agency, Clean Water Rule Response

to Comments—Topic 10: Legal Analysis,

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

2015-06/documents/cwr_response_to_

comments_10_legal.pdf .......................................... 11

Envtl. Prot. Agency, Response to Congress on

Use of Decentralized Wastewater Treatment

Systems (Apr. 1997), https://nepis.epa.gov/

Exe/ZyPURL.cgi?Dockey=200047VF.TXT ............ 21

vi

Envtl. Prot. Agency Region 5, National

Pollutant Discharge Elimination System

Permit No. WI0073059 (Sept. 22, 2016),

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

2017-02/documents/wi0073059fnlprmt09_22_

2016_0.pdf .............................................................. 20

Legislative History of the Water Pollution

Control Act Amendments of 1972, 93d Cong.,

1st Sess. (1972) ......................................................... 9

Memorandum from Michael Shapiro &

Lisa K. Friedman, Envtl. Prot. Agency Office

of Solid Waste, Interpretation of Industrial

Wastewater Discharge Exclusion from the

Definition of Solid Waste (Feb. 17, 1995),

https://rcrapublic.epa.gov/files/11895.pdf ............. 24

National Pollutant Discharge Elimination

System Permit No. NM0022306,

https://www.env.nm.gov/swqb/NPDES/

Permits/NM0022306-Chevron-Questa.pdf ............ 20

National Pollutant Discharge Elimination

System Permit No. WA0023434,

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

2017-09/documents/r10-npdes-taholahwa0023434-final-permit-2015.pdf ......................... 20

S. Rep. No. 92-414 (1971) .......................................... 14

David Sunding & David Zilberman,

The Economics of Environmental Regulation

by Licensing: An Assessment of Recent

Changes to the Wetland Permitting Process,

42 Nat. Resources J. 59 (2002) .............................. 23

Webster’s Third New International Dictionary

(1993) ...................................................................... 13

INTEREST OF THE AMICI CURIAE1

Amici are a bipartisan group of former Administrators of the United States Environmental Protection

Agency (EPA).2 Amici’s leadership of EPA stretches

from the 1980s to this decade, including both Republican and Democratic administrations. Amici share a

commitment to the uniform and consistent application

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

as intended by Congress. In particular, amici share

the view that the CWA charges EPA with protecting

the navigable waters of the United States from pollutants discharged from point sources that travel to surface waters through groundwater. For decades, EPA

has consistently articulated that view—and has regulated consistent with that view, including by issuing

permits under the National Pollutant Discharge Elimination System (NPDES) program for point-source discharges to surface waters through hydrologically connected groundwater. Accepting the United States’ recent reversal in position would effect a significant rollback in regulatory enforcement of the CWA that has

been in place for decades.

1

In accordance with Supreme Court Rule 37.6, amici curiae

certify that no counsel for a party authored this brief in whole or

in part, and that no party or counsel other than the amici curiae

and its counsel made a monetary contribution intended to fund

the preparation or submission of this brief. All parties have

consented to the filing of this amicus brief.

2

Amici are identified in an appendix to this brief.

2

SUMMARY OF ARGUMENT

For decades, EPA has consistently interpreted the

CWA to apply the requirements of the NPDES program to the discharge of pollutants from a point source

to navigable waters of the United States when it can

be proven as a matter of fact that those pollutants

travel through groundwater. That position—unbroken until a few months ago—is consistent with the

text, structure, and purposes of the CWA. In contrast,

the brand new (opposite) position articulated by the

Solicitor General has no basis in the statutory text or

scheme and would open a huge loophole in the congressionally mandated protection of surface waters. All

agree that the CWA does not regulate the quality of

groundwater qua groundwater. But the CWA does

protect surface waters by limiting the introduction of

pollutants from point sources—including when pollutants demonstrably travel from a point source to surface waters. This Court should reject the Solicitor

General and petitioner’s invitation to mandate a significant reversal in federal environmental policy by

rolling back CWA protections in this context.

ARGUMENT

For decades—until a few months ago—the United

States Environmental Protection Agency (EPA) has

correctly understood that the Clean Water Act (CWA

or Act), 33 U.S.C. § 1251 et seq., regulates the discharge of pollutants from a point source when it can be

proven that the pollutants travel to jurisdictional surface waters through groundwater. Indeed, EPA took

that position as amicus in the court of appeals in this

case. See U.S. C.A. Br. 3-5, 11-24. That longstanding

position is correct because it is mandated by the CWA’s

3

text, structure, and purpose. In contrast, the United

States’ new position—adopted after this Court granted

the petition for a writ of certiorari in this case—is inconsistent with the statute and would open an enormous loophole in what Congress intended to be a comprehensive statutory scheme. The Court should reject

the United States’ newly discovered and misguided interpretation of the CWA and instead adopt EPA’s

longstanding position.

I.

For Decades, EPA Has Correctly Interpreted

The CWA To Apply To Point-Source Discharges Of Pollutants To Surface Waters Via

Hydrologically Connected Groundwater.

Amici are former Administrators of EPA. They

represent EPA leadership spanning Republican and

Democratic administrations. And through each of

their tenures, the Agency adhered to a consistent view

that the CWA’s National Pollutant Discharge Elimination System (NPDES) program applies to the discharge of pollutants from point sources to surface waters via groundwater with a direct and demonstrable

hydrological connection to the surface waters. That

longstanding view is compelled by the text, structure,

and purposes of the CWA—which is why EPA espoused that view for decades, including in this case,

and why it has long issued NPDES permits for discharges of pollutants similar to those at issue here.

A. The federal CWA is intended to “restore and

maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Section 301 of the CWA prohibits “the discharge of any

pollutant” except “as in compliance with” specified provisions of the Act. Id. § 1311(a); see id. § 1362(12). The

term “pollutant” is defined to include various types of

4

waste (including chemical wastes, solid waste, sewage,

and biological materials) “discharged into water,” and

the term “discharge of a pollutant” is defined to include

“any addition of any pollutant to navigable waters

from any point source.” Id. § 1362(6), (12). The CWA

further defines “navigable waters” as “the waters of

the United States, including the territorial seas” and

defines “point source” as “any discernible, confined and

discrete conveyance, including but not limited to any

. . . well . . . from which pollutants are or may be discharged.” Id. § 1362(7), (14).

The CWA thus establishes a regime in which

point-source discharges of covered pollutants are prohibited unless they are authorized by a permit issued

pursuant to the NPDES. 33 U.S.C. § 1342; Int’l Paper

Co. v. Ouellette, 479 U.S. 481, 489 (1987) (“Section

301(a) of the Act, 33 U.S.C. § 1311(a), generally prohibits the discharge of any effluent into a navigable

body of water unless the point source has obtained an

NPDES permit from the Environmental Protection

Agency.”). The CWA provides that the EPA Administrator or the States, see 33 U.S.C. § 1342(b), may “issue

a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding” the general prohibition on discharges in Section 1311(a), “upon condition that such discharge will meet” statutory criteria

or criteria established by the Administrator. Id.

§ 1342(a)(1). A typical NPDES permit limits the type

and amount of pollutants that may be discharged, and

imposes monitoring and reporting requirements on the

discharger. See ibid.; id. § 1362(11). When numeric

limitations are not feasible, the permitting agency

may include “best management practices” requirements instead. 40 C.F.R. § 122.2; id. § 122.44(k). EPA

5

and States also have authority to issue a “general permit” covering a category of discharges in a specified geographical area where discharges can be managed

without issuing individual permits. Id. § 122.28.

B. The CWA does not regulate the quality of

groundwater; all parties agree that Congress left the

regulation of groundwater qua groundwater primarily

to the States. 3 The NPDES program is instead directed to protecting surface waters, and in particular

to regulating any addition of pollutants from point

sources to surface waters. For decades, EPA—the

agency Congress charged with overseeing the CWA

and the NPDES program—has repeatedly confirmed

that the CWA covers the discharge of pollutants from

point sources to surface waters via groundwater. That

approach makes sense because when groundwater carries pollutants from a point source to surface waters,

those pollutants have been “add[ed] . . . to navigable

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

1. In 1990, EPA promulgated a final rule on

NPDES permit applications for the discharge of storm

water. NPDES Permit Application Regulations for

Storm Water Discharges, 55 Fed. Reg. 47,990 (Nov. 16,

1990). In that rule, EPA explained that “discharges to

ground waters [we]re not covered by th[e] rulemaking

(unless there is a hydrological connection between the

ground water and a nearby surface water body).” Id.

at 47,997. A year later, the agency reiterated its view

3

Groundwater quality is regulated by the Safe Drinking

Water Act, 42 U.S.C. § 300f et seq., to the extent groundwater

affects “drinking water sources,” id. § 300h(b)(1), defined as

“underground water which supplies or can reasonably be

expected to supply any public water system,” id. § 300h(d)(2).

6

that the CWA “requires NPDES permits for discharges

to groundwater where there is a direct hydrological

connection between groundwaters and surface waters.” 1991 Final Rule Addressing Water Quality

Standards on Indian Lands, 56 Fed. Reg. 64,876,

64,892 (Dec. 12, 1991). In that rule, EPA acknowledged “the strong language in the legislative history of

the [CWA] to the effect that the Act does not grant EPA

authority to regulate pollution of groundwaters”—and,

critically, explained that “[i]n these situations, the affected groundwaters are not considered ‘waters of the

United States’ but discharges to them are regulated

because such discharges are effectively discharges to

the directly connected surface waters.” Ibid. The

agency reiterated that position again in 1997 and in

1998. Final General NPDES Permit for Concentrated

Animal Feeding Operations (CAFO) in Idaho ID-G-010000, 62 Fed. Reg. 20,177, 20,178 (Apr. 25, 1997) (explaining that, although the CWA “does not give EPA

the authority to regulate groundwater quality through

NPDES permits,” “groundwater may be affected by the

NPDES program” “when a discharge of pollutants to

surface waters can be proven to be via groundwater”);

Reissuance of NPDES General Permits for Storm Water Discharges from Construction Activities, 63 Fed.

Reg. 7858, 7881 (Feb. 17, 1998) (“EPA interprets the

CWA’s NPDES permitting program to regulate discharges to surface water via groundwater where there

is a direct and immediate hydrologic connection.”).

EPA reiterated its long-held view in a variety of

other statements published in the Federal Register

throughout the 1990s and early 2000s. See, e.g., Proposed General NPDES Permit for CAFOs in Idaho,

60 Fed. Reg. 44,489, 44,493 (Aug. 28, 1995) (explaining

7

that permit “prohibits the discharge of process

wastewater to waters of the United States by means of

a hydrologic connection” and that “discharges that enter surface waters indirectly through groundwater are

prohibited”); Notice of Lodging of Consent Decree Pursuant to the CWA; ConAgra, Inc., 63 Fed. Reg. 55,409,

55,409 (Oct. 15, 1998) (explaining that consent decree

addresses “violations of the CWA . . . including . . . unauthorized discharges of pollutants to surface waters

via . . . hydrologically-connected groundwater”); Hazardous Waste Identification Rule (HWIR): Revisions to

the Mixture and Derived-From Rules, 66 Fed. Reg.

27,266, 27,272 n.4 (May 16, 2001) (explaining that, although “[t]he current federal [NPDES] program under

the CWA does not require permitting authorities to issue permits for discharges of wastewater to groundwater,” “[t]he exception is those instances in which a discharge to surface water may occur via a hydrologic connection between a groundwater and surface water”).

2. On the heels of those consistent and repeated

statements of agency interpretation, EPA reiterated

that view in 2001 in a “formal agency interpretation,”

accompanied by extensive legal analysis, as part of a

notice of proposed rulemaking for concentrated animal

feeding operations (CAFOs). Directly addressing

whether the CWA’s NPDES program applies to the

discharge of pollution from a CAFO through groundwater, EPA “restat[ed] that the Agency interprets the

Clean Water Act to apply to discharges of pollutants

from a point source via ground water that has a direct

hydrologic connection to surface water.” NPDES Permit Regulation and Effluent Limitations Guidelines

and Standards for CAFOs, 66 Fed. Reg. 2960, 3015

(Jan. 12, 2001). The agency then set out an extensive

8

legal argument in support of its long-held view, explaining both why EPA has authority to “determin[e]

that a discharge to surface waters via hydrologicallyconnected ground waters can be governed by the Act”

and why “the Act is best interpreted to cover such discharges.” Ibid. In light of the text, structure, legislative history, and purposes of the Act—and relying on

its “expertise in environmental science and policy, id.

at 3018—the agency explained its view that “the Act is

best interpreted to cover such discharges,” id. at 3015.

Examining the text and structure of the statute,

EPA reasoned that “the terms” of the CWA “clearly indicate Congress’ broad concern for the integrity of the

Nation’s waters” by specifying, inter alia, that the requirements of the NPDES program apply to “ ‘the discharge of any pollutant [from a point source] by any

person.’ ” 66 Fed. Reg. at 3015 (quoting 33 U.S.C.

§ 1311(a)) (brackets in original). The agency acknowledged that “[s]ome sections of the CWA do directly apply to ground water” and noted that those and “other

sections of the [CWA] may shed light on the question

of whether Congress intended the NPDES program to

regulate ground water quality.” Ibid. But the agency

went on to explain that “[t]hat question” “is not the

same question as whether Congress intended to protect surface water from discharges which occur via

ground water.” Ibid. “EPA does not argue that the

CWA directly regulates ground water quality,” the

agency explained. Id. at 3016. “In the Agency’s view,

however, the CWA does regulate discharges to surface

water which occur via ground water because of a direct

hydrologic connection between the contaminated

ground water and nearby surface water.” Ibid.

9

Examining the legislative history of the CWA,

EPA explained that Representative Les Aspin had proposed an amendment to be included in the Federal Water Pollution Control Act Amendments of 1972, Pub. L.

No. 92-500, 86 Stat. 816, that would have extended the

NPDES program to cover “any pollutant to ground waters from any point source.” 66 Fed. Reg. at 3016

(quoting Legislative History of the Water Pollution

Control Act Amendments of 1972, 93d Cong., 1st Sess.

589 (1972)). Although that proposed amendment was

ultimately rejected, the agency explained that “provisions in the amendment which would have deleted exemptions for oil and gas well injections were the more

likely cause of the amendment’s defeat.” Ibid. EPA

went on to explain that “there is no evidence that in

rejecting the explicit extension of the NPDES program

to all ground water Congress intended to create a

ground water loophole through which the discharges

of pollutants could flow, unregulated, to surface water.” Ibid. “Instead,” the agency explained, “Congress

expressed an understanding of the hydrologic cycle

and an intent to place liability on those responsible for

discharges which entered the ‘navigable waters.’ ”

Ibid. The agency thus “determined that discharges via

hydrologically connected ground water impact surface

waters and, therefore, should be controlled at the

source.” Ibid.

The agency went on to explore its previous statements on this question, explaining that “EPA repeatedly has taken the position that the CWA can regulate

discharges to surface water via ground water that is

hydrologically connected to surface waters,” identifying at least six such occasions. 66 Fed. Reg. at 3016-

10

3017. In so concluding, “[a]s a legal and factual matter, EPA has made a determination that, in general,

collected or channeled pollutants conveyed to surface

waters via ground water can constitute a discharge

subject to the Clean Water Act”—and explained that

“[t]he determination of whether a particular discharge

to surface waters via ground water which has a direct

hydrologic connection is a discharge which is prohibited without an NPDES permit is a factual inquiry,

like all point source determinations.” Id. at 3017. The

interpretive statement also surveyed the case law on

this question, explaining that “[t]he reasonableness of

the Agency’s interpretation is supported by the fact

that the majority of courts have determined that CWA

jurisdiction may extend to surface water discharges

via hydrologic connections.” Ibid.; id. at 3016.

The 2001 proposed rule ultimately emphasized

that EPA “has made clear the rationale for its construction”—namely, that “[t]he Act requires NPDES

permits for discharges to groundwater where there is

a direct hydrological connection between groundwater

and surface waters.” 66 Fed. Reg. at 3018 (internal

quotation marks omitted). “In these situations,” EPA

explained, “the affected ground waters are not considered ‘waters of the United States’ but discharges to

them are regulated because such discharges are effectively discharges to the directly connected surface waters. ” Ibid. (internal quotation marks and emphasis

omitted). In the final rule that EPA ultimately

adopted, it opted to continue with its existing case-bycase approach to determining which discharges to surface waters through groundwater are subject to the requirements of the NPDES program. NPDES Permit

Regulation and Effluent Limitation Guidelines and

11

Standards for CAFOs, 68 Fed. Reg. 7176, 7216 (Feb.

12, 2003). In doing so, the agency explained that the

final rule “shall [not] be construed to expand, diminish, or otherwise affect the jurisdiction of the Clean

Water Act over discharges to surface water via groundwater that has a direct hydrologic connection to surface water.” Id. at 7216-7217.

Since 2001, EPA and other federal agencies have

reiterated the view that point-source discharges of pollutants that travel to surface waters via groundwater

are governed by the NPDES program. In 2015, for example, EPA and the U.S. Army Corps of Engineers

promulgated the “Clean Water Rule,” which defines

the scope of waters protected by the CWA and reaffirmed that, because groundwater itself is not included

in that definition, groundwater quality is not subject

to regulation under the CWA. Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg.

37,054 (June 29, 2015). But EPA later explained, in

response to comments to the Clean Water Rule, that

EPA “has a longstanding and consistent interpretation

that the” CWA “may cover discharges of pollutants

from point sources to surface water that occur via

ground water that has a direct hydrologic connection

to the surface water” and made clear that “[n]othing in

this rule changes or affects that longstanding interpretation.” EPA, Clean Water Rule Response to Comments—Topic 10: Legal Analysis 383 (internal quotation marks omitted).4

Even more recently, as noted above, the United

States reiterated its position in this case in the Ninth

4

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

cwr_response_to_comments_10_legal.pdf (last visited July 18, 2019).

12

Circuit in 2016. That brief traces the history of the

EPA’s position on the question presented, explaining

that “EPA’s longstanding position has been that pointsource discharges of pollutants moving through

groundwater to a jurisdictional surface water are subject to CWA permitting requirements if there is a ‘direct hydrological connection’ between the groundwater

and the surface water.” U.S. C.A. Br. 22. Notably, the

United States argued in that brief that, “[t]o the extent

there is statutory ambiguity about whether the CWA

applies to discharges to jurisdictional surface waters

through groundwater, EPA’s” longstanding interpretation was entitled to deference pursuant to Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-843 (1984). U.S. C.A. Br. 12, 24.

Although the statutory text is clear, such deference

makes particular sense in a statutory scheme that this

Court has described as “establish[ing]” “a comprehensive regulatory program supervised by an expert administrative agency.” City of Milwaukee v. Illinois,

451 U.S. 304, 317 (1981). The Solicitor General makes

no such argument with respect to the new position articulated in his brief in this Court. And, indeed, no

degree of deference is due to the United States’ new

position, which both “conflicts with a prior interpretation” of the agency “and appears” to be “nothing more

than a convenient litigating position.” Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)

(internal quotation marks omitted).

C. EPA’s longstanding position is consistent

with the statutory text, which prohibits the unpermitted “discharge of any pollutant by any person,”

33 U.S.C. § 1311(a), where “discharge of a pollutant” is

13

defined to mean “any addition of any pollutant to navigable waters from any point source” or to “the contiguous zone or the ocean.” Id. § 1362(12). In this case,

the parties agree that petitioner has discharged pollutants from a point source and that those pollutants are

entering the ocean. The only dispute is whether Congress’s use of the words “from” and “to” means “directly

into” or whether it instead includes indirect discharges

that travel from the point source to surface waters

through other media, including groundwater.

1. The word “to” is used “to indicate movement

or an action or condition suggestive of movement toward (1) a place, person, or thing that is reached or is

thought of as being reached.” Webster’s Third New International Dictionary 2401 (1993). That preposition

does not, in its ordinary usage, require a contiguous

connection between the starting point and the end

point. The word “from” is similarly used “to indicate a

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

physical movement (as of departure, withdrawal, or

dropping) has its beginning.” Id. at 913. Each word

suggests movement from a starting point to an ending

point. But neither word—in isolation or in combination—suggests an unbroken connection between start

and finish with no intervening step. When a man says

he is driving “from Maryland to New York,” for example, everyone understands him to mean that Maryland

is his starting place and New York is his destination—

but no one would interpret his statement to mean that

he will not pass through other States on his way from

Maryland to New York. Similarly, when a woman says

she is mailing a letter “from Texas to Florida,” everyone understands her to mean that the letter will be

transmitted by a postal delivery service rather than by

14

her own hand and that the letter will travel through

and/or over the intervening States. The CWA’s use of

the words “from” and “to” should also be understood in

this ordinary sense: when the Act prohibits the discharge of pollutants from a point source to surface waters, it includes pollutants that travel through groundwater (or over land or by other traceable means) from

the point source to the surface waters. Justice Scalia

recognized as much when he explained in his plurality

opinion in Rapanos v. United States 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.’”

547 U.S. 715, 743 (2006) (quoting 33 U.S.C.

§ 1362(12)(A)) (emphases in original).

If there were any doubt about whether the words

“to” and “from” include discharges that are directly

connected from a point source to navigable water

through an intermediary, the rest of the statutory

scheme would dispel it. This Court has explained that

“[t]he major purpose of the [CWA] was to establish a

comprehensive long-range policy for the elimination of

water pollution,” City of Milwaukee, 451 U.S. at 318

(internal quotation marks omitted), and has noted

that “Congress criticized past approaches to water pollution control as being ‘sporadic’ and ‘ad hoc,’” id. at

325 (quoting S. Rep. No. 92-414, at 95 (1971)). Other

parts of the relevant provisions confirm the Act’s broad

goal of safeguarding surface waters. The CWA defines

“discharge of a pollutant to mean “any addition of any

pollutant to navigable waters from any point source.”

33 U.S.C. § 1362(12)(A) (emphases added). This Court

has explained, when interpreting the similarly worded

Clean Air Act, 42 U.S.C. § 7401 et seq., that Congress’s

15

repeated use of the word “any” in defining a statutory

term indicates that Congress intended the definition

to be “sweeping.” Massachusetts v. EPA, 549 U.S. 497,

528 (2007). In light of that intent, the only statutory

interpretation that makes sense is one that includes

pollution discharges from a point source to surface waters through groundwater.

2. To be clear, not all transmissions of pollutants

from a point source to surface waters through groundwater are covered by the CWA, under EPA’s long-held

view. Where causation is a feature of statutory liability, ordinary principles of statutory construction usually require a showing of proximate cause—that is, a

“direct relation between the injury asserted and the injurious conduct alleged.” Bank of Am. Corp. v. City of

Miami, 137 S. Ct. 1296, 1306 (2017) (citation omitted).

In this context, such a “direct relation” can be established without showing a directly contiguous physical

relationship between the starting and finishing points.

If an archer shot an arrow from Main Street to Elm

Street, her release of the arrow would be the proximate

cause of damage inflicted by the arrow’s landing, even

though the arrow traveled through air and space to get

from the beginning of its journey to its end. So too

here, when a pollutant travels from a point source to

surface waters, there is a “direct relation” between the

release and the subsequent pollution when the pollutant travels through groundwater with a direct hydrological connection to the receiving surface waters. Notably, EPA has never claimed that the CWA covers all

transmissions of pollutants from a point source to surface waters via groundwater; it has always required a

direct hydrological connection between point A and

point B. E.g., 56 Fed. Reg. at 64,892; 66 Fed. Reg. at

16

3016. As EPA has explained, whether a direct hydrological connection exists is a “factual inquiry” that depends on “time and distance” as well as “geology, flow,

and slope.” 66 Fed. Reg. at 3017. The concept of a

direct hydrological connection is not an addition to the

statutory text; rather, it is an interpretation of the text

that incorporates ordinary principles of proximate

cause to determine whether an addition of pollutants

to navigable waters is “from” a point source within the

meaning of the statute.

3. The Solicitor General’s newfound position

makes little sense in light of the text and structure of

the CWA.

a. The Solicitor General defends the United

States’ new position primarily by arguing that the

NPDES program does not regulate groundwater quality. But that point is uncontested. By its express

terms, the CWA protects surface waters—and the

NPDES program applies to pollution of “navigable waters,” “the contiguous zone[,] or the ocean.” 33 U.S.C.

§ 1362(12)(A), (B). But nothing in EPA’s longstanding

position purports to regulate groundwater quality. To

the contrary, EPA has repeatedly disclaimed any attempt to regulate the pollution of groundwater qua

groundwater. See, e.g., 55 Fed. Reg. at 47,997; 56 Fed.

Reg. at 64,892; 62 Fed. Reg. at 20,178; 66 Fed. Reg. at

3015-3016. Instead, EPA has regulated the pollution

of surface waters, as mandated by the statutory text,

which itself contains no exception for pollution that is

delivered from a point source to navigable waters via

hydrologically connected groundwater. That is a regulation of surface waters, not of groundwater quality.

If, for example, a point source injected pollutants into

groundwater—even groundwater flowing directly into

17

adjacent navigable waters—but stopped those pollutants before they reached the surface waters, there

would be no addition of pollutants to the navigable waters, and the CWA’s NPDES requirements would not

apply. Congress left regulation of that type of pollution—and of the quality of groundwater more generally—largely to the States (except where a separate

federal law applies).

The Solicitor General’s argument in this Court

that EPA’s longstanding application the statute would

necessitate the regulation of groundwater quality is

curious in light of the United States’ consistent practice of not regulating groundwater quality under the

Act and of its explanation below that regulation of the

discharge of pollutants from a point source to navigable waters via groundwater is not regulation of

groundwater. U.S. C.A. Br. 17. Similarly, the United

States presciently refuted the Solicitor General’s later

reliance (SG Br. 25-29) on the treatment of groundwater in legislative history, explaining that it “only supports the unremarkable proposition with which all

courts agree—that the CWA does not regulate ‘isolated/nontributary groundwater’ which has no [effect]

on surface water.’” U.S. C.A. Br. 18 (quoting Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1180

(D. Idaho 2001)) (brackets in original). That proposition, the United States explained, “does not undermine

the conclusion that discharges of pollutants through

groundwater to jurisdictional surface waters are subject to the NPDES program.” Ibid.; see id. at 19 (explaining that “whether groundwater itself” is “a water

within the meaning of the CWA” “is distinct from

whether a CWA permit is required when pollutants

18

travel to jurisdictional surface waters through groundwater with a direct hydrological connection”); id. at 21

(“This emphatically is not a case about the regulation

of groundwater. Instead it is about the regulation of

discharges of pollutants to waters of the United

States.”).

In the court of appeals, the United States accused

petitioner of “erroneously attempt[ing] to conflate the

jurisdictional exclusion of groundwater with the role

that groundwater can play as the pathway through

which pollutants from a point source reach jurisdictional surface waters.” U.S. C.A. Br. 25. In this Court,

the Solicitor General repeats petitioner’s mistake, suggesting (at 30) that adopting EPA’s longstanding position would be tantamount to using “the CWA’s NPDES

permitting requirements” “for the protection of

groundwater quality.” The NPDES program is indisputably directed to the protection of surface waters—

including by regulating point-source pollution that enters surface waters via groundwater. Amicus Edison

Electric Institute similarly confuses (at 21-32) the regulation of groundwater qua groundwater with the regulation of pollutants from a point source added to surface waters through hydrologically connected groundwater, when it argues that EPA has repeatedly declined to exercise NPDES authority over groundwater.

b. Accepting the Solicitor General’s new position

would create a huge loophole in the regulation of pointsource pollution of surface waters. If the NPDES program excludes point-source discharges to navigable

waters through groundwater, polluters could avoid the

permitting regime by simply depositing their pollutants in a pit several feet from a navigable water like

Lake Michigan or the Missouri River and allowing

19

them to seep into those waters via groundwater. As

the United States explained below, however:

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

encompass a polluter who discharges pollutants via a pipe running from the factor 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.

U.S. C.A. Br. 16 (quoting N. Cal. River Watch v. Mercer

Fraser Co., 2005 WL 2122052, at *2 (N.D. Cal. Sept. 1,

2005)). The Solicitor General now rejects that commonsense position.

Notably, the Solicitor General is not willing to

commit to a statutory standard that would in all cases

require direct transmission of pollutants from a point

source to surface waters in order to qualify for coverage under the NPDES program. The Solicitor General’s position is limited to exempting discharges that

travel through groundwater—and he urges the Court

“not [to] determine how the NPDES program might

apply where pollutants released from a point source

travel to jurisdictional surface waters over land.” SG

Br. 33. The only statutory basis the Solicitor General

offers for drawing that line is the one discussed above:

the CWA does not regulate the quality of groundwater.

Id. at 34-35. That distinction is meaningless, however,

once it is understood that EPA’s longstanding position

does not purport to regulate groundwater quality at

all. What is left of the Solicitor General’s position is

an exemption apparently crafted for this litigation,

without grounding in the statute or in EPA’s historical

enforcement of the CWA.

20

II. Accepting The Solicitor General’s Newfound

Position Would Require A Significant Retreat From EPA’s Longstanding Enforcement Of The CWA.

The Solicitor General argues that if this Court

were to accept EPA’s longstanding position, that would

“work ‘an enormous and transformative expansion in

EPA’s regulatory authority.’” SG Br. 24 (quoting Util.

Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)).

In fact, the opposite is true: accepting the Solicitor

General’s new position would work an enormous and

transformative rollback in EPA’s regulatory authority.

As the United States explained in its court of appeals brief, for years “EPA and states have been issuing permits for” “point-source discharges to jurisdictional surface waters through groundwater with a direct hydrological connection” “from a number of industries, including chemical plants, concentrated animal

feeding operations, mines, and oil and gas waste-treatment facilities.” U.S. C.A. Br. 29-30 (citing NPDES Permit No. NM00223065; NPDES Permit No. WA00234346).

In 2016, for example, EPA issued an NPDES permit to

a wastewater treatment facility in Wisconsin because

data showed a direct hydrological connection between

groundwater beneath the site and adjacent surface

waters. EPA Region 5, NPDES Permit No. WI0073059

(Sept. 22, 2016).7

5

https://www.env.nm.gov/swqb/NPDES/Permits/NM0022306

-Chevron-Questa.pdf.

6

https://www.epa.gov/sites/production/files/2017-09/documents/r10-npdes-taholah-wa0023434-final-permit-2015.pdf.

7

https://www.epa.gov/sites/production/files/2017-02/documents/wi0073059fnlprmt09_22_2016_0.pdf.

21

The Solicitor General therefore errs in asserting

that adhering to the status quo would create a dramatic expansion of EPA’s regulatory authority over

the discharge of pollutants to surface waters. Nor is

the Solicitor General correct (at 24-25) that adhering

to EPA’s longstanding view will suddenly subject private homeowners with faulty septic systems to unprecedented liability under the CWA. EPA already requires a NPDES permit for any septic system that discharges pollutants to surface waters. EPA, Response

to Congress on Use of Decentralized Wastewater Treatment Systems 5 (Apr. 1997).8 That requirement has

not burdened homeowners because siting requirements for septic systems already seek to avoid discharges to navigable waters. Ibid. In any event, when

EPA (or a State implementing the NPDES program)

determines that a category of numerous discharges

poses a threat to surface waters that can be managed

without requiring individual permits, the agency can

issue a general permit for activities conducted pursuant to proper practices specified in the general permit.

EPA has done just that for the innumerable stormwater discharges from small construction projects. Final NPDES General Permit for Stormwater Discharges

from Construction Activities, 82 Fed. Reg. 6534 (Jan.

19, 2017). And it has done the same for applications of

pesticides. Final NPDES Pesticide General Permit for

Point Source Discharges from the Application of Pesticides; Reissuance, 81 Fed. Reg. 75,816 (Nov. 1, 2016).

Other amici make the same mistake in asserting that

accepting EPA’s longstanding interpretation of the

8

TXT.

https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=200047VF.

22

CWA would expand liability and costs under the CWA

for septic systems and green infrastructure. See Senators Amicus Br. 22-23; Wychmere Amicus Br. 10-12;

Nat’l Conf. of State Legislatures Amicus Br. 8-19; Nat’l

Ass’n of Clean Water Agencies Amicus Br. 12-20; Nat’l

Ass’n of Home Builders Amicus Br. 4-16; Fed. Water

Quality Coal. Amicus Br. 20-21; Energy Transfer Partners Amicus Br. 10-19; Agric. Bus. Orgs. Amicus Br.

20-32; U.S. Chamber of Commerce Amicus Br. 8-10.

Notably, neither petitioner, the Solicitor General,

nor any of petitioner’s other amici can identify any actual problem or unmanageable burden that has resulted from EPA’s decades-long application of the

NPDES program to the point-source discharge of pollutants that travel to surface waters through groundwater. Amici’s suggestions that the approaches adopted below and by the Fourth Circuit in Upstate Forever

v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637,

651 (4th Cir. 2018), petition for cert. pending,

No. 18-268 (filed Aug. 28, 2018)—both of which utilize

a fact-specific, case-by-case approach just as EPA has

done for decades—are unworkable and contain no limiting principles simply ignore that those courts merely

reaffirmed EPA’s existing approach to regulating

these types of discharges. See Kinder Morgan Amicus

Br. 27; Wash. Legal Found. Amicus Br. 16; Fed. Water

Quality Coal. Amicus Br. 9-10, 18-20; States Amicus

Br. 12, 18; Wychmere Amicus Br. 12; Nat’l Conf. of

State Legislatures Amicus Br. 36-38; Nat’l Ass’n of

Clean Water Agencies Amicus Br. 10-11. The same is

true of amici’s arguments that NPDES permits will be

difficult to craft in this context because of challenges

in identifying monitoring locations and applying effluent limitations. See Kinder Morgan Amicus Br. 31;

23

Pac. Legal Found. Amicus Br. 19-20; Wash. Legal

Found. Amicus Br. 11; Wychmere Amicus Br. 13; Fed.

Water Quality Coal. Amicus Br. 19; Nat’l Conf. of State

Legislatures Amicus Br. 30-36; Nat’l Ass’n of Clean

Water Agencies Amicus Br. 12-20; U.S. Chamber of

Commerce Amicus Br. 10-11; Edison Elec. Inst. Amicus Br. 38. As the United States explained in the court

of appeals, EPA and States that implement the

NPDES program have been issuing permits in this

context for years.9

Finally, amici miss the mark in arguing that continuing to construe the CWA to cover point-source discharges to surface waters via hydrologically connected

groundwater would displace various state and federal

laws. See SG Br. 31; Kinder Morgan Amicus Br. 2124; Wash. Legal Found. Amicus Br. 12; Senators Amicus Br. 20; Nat’l Ass’n of Clean Water Agencies Amicus

Br. 29-37; Fed. Water Quality Coal. Amicus Br. 15-16;

Edison Elec. Inst. Amicus Br. 33-39; States Amicus

Br. 8, 20-24; Fla. Water Env’t Ass’n Amicus Br. 9-10;

Wychmere Amicus Br. 16-20. First, as discussed, the

CWA does not regulate the quality of groundwater; the

NPDES program regulates pollutants flowing from a

9

Amicus Agricultural Business Organizations’ similar claim

(at 29) that obtaining this type of NPDES permit costs “tens of

thousands (or even hundreds of thousands) of dollars and months

or years of waiting” is exceedingly misleading. The only source

amicus cites discusses the costs associated with securing a very

different type of permit—a permit under Section 404 of the CWA,

33 U.S.C. § 1344, for filling wetlands—that is not at issue here.

See David Sunding & David Zilberman, The Economics of

Environmental Regulation by Licensing: An Assessment of Recent

Changes to the Wetland Permitting Process, 42 Nat. Resources J.

59, 62-63 (2002).

24

point source to surface waters via groundwater. Second, even where the requirements of the NPDES program apply, States themselves implement the NPDES

program in nearly every State and are free to supplement the requirements of the NPDES program with additional protective measures. 33 U.S.C. § 1342(b)(1)(A);

Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers

Ass’n, 453 U.S. 1, 11 (1981) (noting that the CWA “created various federal minimum effluent standards”).

Third, amicus Edison Electric Institute errs in contending (at 33-37) that EPA’s longstanding position

“would supplant regulations promulgated under [the

Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. § 6901 et seq.,] that are specifically

tailored to address groundwater contamination that

reaches surface waters” because the RCRA excludes

certain point-source discharges that are subject to

NPDES permitting. To the contrary, EPA has long adhered to the view that “wastewater releases to groundwater from treatment and holding facilities . . . remain

within the jurisdiction of RCRA” and “are subject to

CWA jurisdiction, based on EPA’s interpretation that

discharges from point sources through groundwater

where there is a direct hydrologic connection to nearby

surface waters of the United States are subject to the

prohibition against unpermitted discharges, and thus

are subject to the NPDES permitting requirements.”

Memorandum from Michael Shapiro & Lisa K. Friedman, EPA Office of Solid Waste, Interpretation of Industrial Wastewater Discharge Exclusion from the Definition of Solid Waste 3 (Feb. 17, 1995).10

10

https://rcrapublic.epa.gov/files/11895.pdf.

25

In short, neither petitioner nor any of its amici has

offered any valid reason to depart from the statutory

text or discard decades of settled agency understanding that the CWA governs the point-source discharge

of pollutants to surface waters through groundwater

with a direct hydrological connection. This Court

should reject the Solicitor General’s new litigation position, which is not grounded in the statutory text or

in sound policy.

CONCLUSION

For the foregoing reasons, the decision below

should be affirmed.

Respectfully submitted,

Sarah E. Harrington

Counsel of Record

Erica Oleszczuk Evans

GOLDSTEIN & RUSSELL. P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

sh@goldsteinrussell.com

July 19, 2019

APPENDIX

1a

APPENDIX

Amici curiae former Administrators of the U.S.

Environmental Protection Agency are:

William Reilly, EPA Administrator 1989-1993,

Carol Browner, EPA Administrator 1993-2001, and

Gina McCarthy, EPA Administrator 2013-2017.