Amicus Curiae Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.
Supreme Court briefJul 19, 2019
Ask Donna
What actually matters in this document.
Text
No. 18-260
IN THE
_______________
COUNTY OF MAUI,
Petitioner,
v.
HAWAI‘I WILDLIFE FUND, et al.,
Respondents.
________________
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
______________________
BRIEF OF AMICI CURIAE FORMER EPA
OFFICIALS IN SUPPORT OF RESPONDENTS
_________________
SHAUN A. GOHO
Counsel of Record
EMMETT ENVIRONMENTAL
LAW & POLICY CLINIC
HARVARD LAW SCHOOL
6 Everett St., Suite 5116
Cambridge, MA 02138
617-496-2058
sgoho@law.harvard.edu
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................. i
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF THE AMICI CURIAE .......................1
SUMMARY OF ARGUMENT .....................................2
ARGUMENT ...............................................................4
I.
Affirming the Decision of the Court of Appeals
Will Maintain the Legal Status Quo ....................4
A. For at Least Three Decades, EPA Interpreted
the CWA to Apply to Point Source Discharges
that Reach Surface Waters via Groundwater
.........................................................................5
B. EPA and State Guidance Documents Instruct
Permit Writers to Address Discharges
through Hydrologically-Connected
Groundwater .................................................11
C. EPA and the States Have Issued Many
NPDES Permits that Address Discharges
that Pass through Groundwater to
Jurisdictional Surface Waters .....................16
II. Regulating Discharges that Pass through
Groundwater is Administratively Feasible .......21
A. It is Feasible to Determine when a Facility
Needs a NPDES Permit for Discharges that
Pass through Groundwater ..........................21
B. NPDES Permitting Requirements for
Discharges that Pass through Groundwater
are not Overly Burdensome .........................24
ii
III. Reversal of the Court of Appeals Would Disrupt
Existing Protections against Significant Harms
that are not Addressed by Other Statutes .........29
CONCLUSION ..........................................................35
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Kentucky Waterways Alliance v. Kentucky Utilities
Company, 905 F.3d 925 (6th Cir. 2018) ................34
POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102
(2014) ......................................................................30
Washington Wilderness Coalition v. Hecla Mining,
870 F. Supp. 983 (E.D. Wash. 1994) .....................15
Statutes and Regulations
33 U.S.C. § 1311(a) ......................................................4
33 U.S.C. § 1342(a) ......................................................4
33 U.S.C. § 1342(b) ....................................................14
33 U.S.C. § 1362(12)(A) ...............................................4
40 C.F.R. § 261.4(a)(2) .................................................9
Ariz. Admin. Code R18-11-405.B ..............................30
Fla. Admin. Code r. 62-520.-310(2) ...........................30
314 Mass. Code Regs. 5.09(1)....................................30
Federal Register Notices
Amendments to the Water Quality Standards
Regulation That Pertain to Standards on Indian
Reservations, 56 Fed. Reg. 64,876 (Dec. 12, 1991) .7
iv
Disposal of Coal Combustion Residuals From Electric
Utilities, 80 Fed. Reg. 21,302 (Apr. 17, 2015).......34
Final General NPDES Permit for Concentrated
Animal Feeding Operations (CAFO) in Idaho ID-G01-0000, 62 Fed. Reg. 20,177 (Apr. 25, 1997) .........7
Hazardous Waste Identification Rule (HWIR):
Revisions to the Mixture and Derived-From Rules,
66 Fed. Reg. 27,266 (May 16, 2001) ........................7
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) ........................7
National Pollutant Discharge Elimination System
General Permit and Reporting Requirements for
Discharges From Concentrated Animal Feeding
Operations,
58 Fed. Reg. 7610 (Feb. 8, 1993) ........... 7, 17, 23, 24
National Pollutant Discharge Elimination System
Permit Application Regulations for Storm Water
Discharges, 55 Fed. Reg. 47,990 (Nov. 16, 1990)....6
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) .................................................9
National Pollutant Discharge Elimination System
Permit Regulation and Effluent Limitations
v
Guidelines and Standards for Concentrated
Animal Feeding Operations, 66 Fed. Reg. 2960
(proposed Jan. 12, 2001) .............................. 8, 10, 22
Notice of Lodging of Consent Decree Pursuant to the
Clean Water Act; ConAgra, Inc., 63 Fed. Reg.
55,409 (Oct. 15, 1998) ............................................21
Proposed General NPDES Permit for Concentrated
Animal Feeding Operations (CAFO) in Idaho, 60
Fed. Reg. 44,489 (Aug. 28, 1995) .............................7
Reissuance of NPDES General Permits for Storm
Water Discharges From Construction Activities, 63
Fed. Reg. 7858 (Feb. 17, 1998) .......................... 7, 10
Other Authorities
Ariz. Dep’t of Envtl. Quality, Draft Fact Sheet,
Arizona Pollution Discharge Elimination System
(AZPDES) Permit No. AZ0026174
(July 14, 2017), http://static.azdeq.gov/pn/fs_azpde
s_alpine.pdf .......................................... 20, 25, 26, 28
Arizona Dep’t of Mines & Mineral Resources,
Arizona Mining Permitting Guide (2011),
http://repository.azgs.az.gov/sites/default/files/dlio/f
iles/nid1128/arizona_mining_permitting_guide_20
11.pdf ......................................................................15
Authorization to Discharge under the Colorado
Discharge Permit System (Jan. 26, 2012) ............20
In re Bethlehem Steel Corp., 2 E.A.D. 715 (1989) ......6
vi
JoAnn Burkholder et al., Impacts of Waste from
Concentrated Animal Feeding Operations on Water
Quality, 115 Envtl. Health Persp. 308 (2007) ......31
Cal. State Water Resources Control Board, NPDES
General Permit For Storm Water Discharges
Associated With Industrial Activities, Order
NPDES No. CAS000001, Fact Sheet (Apr. 1, 2014),
https://www.waterboards.ca.gov/board_decisions/a
dopted_orders/water_quality/2014/wqo2014_0057_
dwq_rev_mar2015.pdf ..................................... 19, 23
Colo. Dep’t of Public Health & Env’t, Colorado
Discharge Permit System (CDPS) Fact Sheet to
Permit Number COG5000000 (Oct. 13, 2016),
https://www.colorado.gov/pacific/sites/default/files/
WQ_PER_COG500000_FS_1.pdf ..........................19
Colorado Discharge Permit System (CDPS) Fact
Sheet to Permit Number CO0041351, Western
Sugar Cooperative, Fort Morgan Facility (Jan. 26,
2012) ........................................................... 20, 27, 29
Comment of Attorneys General of Maryland,
California, Massachusetts, Oregon, and Vermont
on Clean Water Act Coverage of “Discharges of
Pollutants” via a Direct Hydrologic Connection to
Surface Water (EPA-HQ-OW-2018-0063; FRL9973-41-OW) (May 21, 2018) .................................22
EPA Office of Wastewater Management, EPA-833-B04-001, NPDES Permit Writers’ Guidance Manual
and Example NPDES Permit for Concentrated
Animal Feeding Operations (2003),
vii
https://www3.epa.gov/npdes/pubs/cafo_permit_guid
ance_entirepub.pdf .......................................... 13, 14
EPA Office of Wastewater Management, Water
Permitting 101 (2002), https://www3.epa.gov/npdes
/pubs/101pape.pdf ..................................................12
EPA Office of Water, EPA’s National Hardrock
Mining Framework (1997), https://www.epa.gov/sit
es/production/files/2015-10/documents/hardrock_m
ining_framework_0.pdf ..........................................33
EPA Office of Water, EPA-833-B-93-004, Guidance
Manual for Developing Best Management Practices
(BMP) (1993), https://www3.epa.gov/npdes/pubs/ow
m0274.pdf...............................................................13
EPA Office of Water, EPA-833-B-95-001, Guide
Manual On NPDES Regulations For Concentrated
Animal Feeding Operations (1995),
https://www3.epa.gov/npdes/pubs/owm0266.pdf ..13
EPA Office of Water, EPA-833-F-12-001, NPDES
Permit Writers’ Manual for Concentrated Animal
Feeding Operations (2012),
https://www3.epa.gov/npdes/pubs/cafo_permitman
ual_entire.pdf ............................................. 14, 18, 23
EPA Region 1, Fact Sheet, Forbes Farm Partnership,
Inc., NPDES Permit No. NH0023540 (2018),
https://www.epa.gov/sites/production/files/2018-04/
documents/draftnh0023540permit.pdf .................18
EPA Region 10, Authorization to Discharge Under
the National Pollutant Discharge Elimination
viii
System for Concentrated Animal Feeding
Operations, No. IDG010000 (Mar. 29, 2012),
https://www.epa.gov/sites/production/files/201712/documents/r10-npdes-idaho-cafo-gp-id010000final-permit-2012.pdf ....................................... 17, 23
EPA Region 10, Authorization to Discharge Under
the National Pollutant Discharge Elimination
System, Taholah Village Wastewater Treatment
Plant, No. WA0023434 (June 4,
2015), https://www.epa.gov/sites/production/files/20
17-09/documents/r10-npdes-taholah-wa0023434final-permit-2015.pdf ....................................... 17, 28
EPA Region 5, Authorization to Discharge Under the
National Pollutant Discharge Elimination System,
Neopit Wastewater Treatment Facility, No. WI0073059-2
(Sept. 22, 2016), https://www.epa.gov/sites/producti
on/files/2017-02/documents/wi0073059fnlprmt09_2
2_2016_0.pdf .................................................... 17, 28
EPA Region 6, Authorization to Discharge under the
National Pollutant Discharge Elimination System,
Permit No. NM0022306 (Aug. 29, 2006),
https://semspub.epa.gov/work/06/619835.pdf .......26
EPA Region 6, Authorization to Discharge under the
National Pollutant Discharge Elimination System,
Permit No. NM0022306 (Sept. 30, 2013),
https://www.env.nm.gov/swqb/NPDES/Permits/NM
0022306-Chevron-Questa.pdf ................................26
EPA Region 6, Authorization to Discharge Under the
National Pollutant Discharge Elimination System,
ix
Questa Mine, No. NM0022306 (Sept. 30, 2013),
https://www.env.nm.gov/swqb/NPDES/Permits/NM
0022306-Chevron-Questa.pdf ................................17
EPA Region 6, Fact Sheet, Molycorp, Inc., NPDES
Permit No. NM0022306 (May 16, 2006),
http://clinics.law.harvard.edu/environment/files/20
19/07/Molycorp-Fact-Sheet.pdf ........... 17, 18, 27, 33
EPA Region 6, National Pollutant Discharge
Elimination System (NPDES) General Permit for
Discharges from Concentrated Animal Feeding
Operations (CAFOs) in New Mexico, No.
NMG010000 (July 14, 2016), https://www.env.nm.g
ov/wp-content/uploads/2017/07/NMG010000CAFO-NM-20160901.pdf .......................................17
EPA Region 6, NPDES Permit No. NM0022306 –
Response to Comments (Sept. 30, 2013), https://ww
w.env.nm.gov/swqb/NPDES/Permits/NM0022306Chevron-Questa.pdf ...............................................27
EPA Region 6, Statement of Basis, US Liquids of
Louisiana, Ltd., NPDES Permit No. LA0068420
(May 9, 1997), http://clinics.law.harvard.edu/enviro
nment/files/2019/07/US-Liquids-of-LouisianaStatement-of-Basis.pdf .................................... 18, 25
EPA, EPA-600/R-09/151, Characterization of Coal
Combustion Residues from Electric Utilities –
Leaching and Characterization Data Hazardous
and Solid Waste Management System
(2009), https://nepis.epa.gov/Exe/ZyPDF.cgi/P1007
JBD.PDF?Dockey=P1007JBD.PDF ......................34
x
EPA, EPA-833-B-96-003, U.S. EPA Permit Writers’
Manual (1996),
https://www3.epa.gov/npdes/pubs/owm0243.pdf ..12
EPA, EPA-833-K-10-001, NPDES Permit Writers’
Manual (2010),
https://www3.epa.gov/npdes/pubs/pwm_2010.pdf 12
EPA, National Pollutant Discharge Elimination
System (NPDES) Storm Water Program Questions
and Answers (2004),
https://www3.epa.gov/npdes/pubs/sw_qanda_entire
document.pdf..........................................................13
EPA, Response to Comments – Topic 10: Legal
Analysis (June 30, 2015),
https://www.epa.gov/sites/production/files/201506/documents/cwr_response_to_comments_10_lega
l.pdf.........................................................................11
EPA, Risk Assessment Evaluation for Concentrated
Animal Feeding Operations (2004), https://nepis.ep
a.gov/Exe/ZyPDF.cgi/901V0100.PDF?Dockey=901V
0100.PDF................................................................32
Jennifer S. Harkness et al., Evidence for Coal Ash
Ponds Leaking in the Southeastern United States,
50 Envtl. Sci. & Technology 6583 (2016) ..............34
Letter from Kevin M. Pierard, Chief NPDES
Programs Branch, EPA Region 5, to Ann Foss,
Metallic Mining Sector Director, Minnesota
Pollution Control Agency (Nov. 3, 2016), https://ww
w.eenews.net/assets/2019/01/16/document_daily_0
1.pdf ........................................................................20
xi
Letter from Max H. Dodson, Director, Water
Management Division, EPA Region 8, to Dan
Fraser, Chief, Water Quality Bureau, Montana
Department of Health & Environmental Sciences,
NPDES Permit Issues Hard Rock Mines (Dec. 22, 1
993), http://www.sec.nv.gov/appeal_docs/epa_letter
_cwa_122293.pdf ....................................................33
Lummi Natural Resources Dep’t, Evaluation Report
on the Development and Implementation of a
Lummi Nation NPDES Program (2005),
https://www.lummi-nsn.gov/userfiles/83_NPDES%
20Delegation%20ReportFINAL.pdf ......................16
Memorandum from Michael Shapiro, Director, Office
of Solid Waste & Lisa K. Friedman, Associate
General Counsel, Solid Waste and Emergency
Response Division, EPA, to Waste Management
Division Directors, Interpretation of Industrial
Wastewater Discharge Exclusion From the
Definition of Solid Waste (Feb. 17, 1995), https://w
ww3.epa.gov/npdes/pubs/owm607.pdf. ............. 9, 10
Minn. Pollution Control Agency, National Pollutant
Discharge Elimination System/State Disposal
System (NPDES/SDS) Permit Program Fact Sheet,
Permit No. MN0071013 (Jan. 31, 2018), https://ww
w.pca.state.mn.us/sites/default/files/wq-wwprm151gg.pdf ..................................................................20
Mont. Dep’t of Envtl. Quality, Authorization to
Discharge Under the Montana Pollutant Discharge
Elimination System, Permit No. MT0021849 (Jan.
11, 2014), http://deq.mt.gov/Portals/112/Water/WP
B/MPDES/Majors/MT0021849PER.pdf .... 20, 26, 28
xii
Oklahoma Dep’t of Agric., Food, & Forestry,
Agriculture Pollutant Discharge Elimination
System (AgPDES) General Permit for Discharges
from Concentrated Animal Feeding Operations
(CAFOs) in Oklahoma, AgPDES Permit No.
OKG010000, (Mar. 30, 2017), https://www.oda.stat
e.ok.us/aems/Oklaho-ma%20AgPDES%20CAFO%2
0General%20Permit%20OKG01000%2020172022.pdf ............................................................19, 23
Oregon Dep’t of Envtl. Quality, Disposal of
Municipal Wastewater Treatment Plant Effluent by
Indirect Discharge to Surface Water via
Groundwater or Hyporheic Water, Internal
Management Directive (IMD) (2007),
https://www.oregon.gov/deq/Filtered%20Library/I
MDindirectdischarge.pdf .......................................15
Response to Comments on the Proposed National
Pollutant Discharge Elimination System (NPDES)
General Permit for Discharges from Concentrated
Animal Feeding Operations (CAFOs) in New
Mexico (NMG010000) (2009),
http://clinics.law.harvard.edu/environment/files/20
19/07/NM-CAFO-General-Permit-Response-toComments.pdf ........................................................32
State Program Authority, Tab 2 of NPDES State
Program Information, EPA,
https://www.epa.gov/npdes/npdes-state-programinformation#tab-2 ..................................................14
Tenn. Dep’t of Env’t & Conservation, General State
Operating Permit for Concentrated Animal
Feeding Operations, No. SOPC00000
xiii
(Aug. 1, 2015), https://www.tn.gov/content/dam/tn/
environment/water/documents/permit_water_sopc0
0000_pmt.pdf ................................................... 19, 23
Tex. Comm’n on Envtl. Quality, General Permit to
Discharge Wastes, TPDES General Permit No.
TXG920000 (July 10, 2014), https://www.tceq.texas
.gov/assets/public/permitting/wastewater/general/t
xg920000.pdf .................................................... 19, 23
Tintina Montana, Inc., Integrated Discharge Permit
Application Narrative Black Butte Copper Project
Meagher County, Montana (Dec. 11, 2017),
https://deq.mt.gov/Portals/112/Land/Hardrock/Doc
uments/TintinaMines/R17%20Permit%20Applicati
on%20Narrative.pdf...............................................20
U.S. Fish & Wildlife Service & EPA Region 6,
Environmental Contaminants Associated with a
Swine Concentrated Animal Feeding Operation
and Implications for McMurtrey National Wildlife
Refuge (2004), https://ecos.fws.gov/ServCat/Downlo
adFile/21670?Reference=23151 .............................32
Virginia Dep’t of Envtl. Quality, VPDES Permit
Manual (2014), https://www.deq.virginia.gov/Porta
ls/0/DEQ/Water/PollutionDischargeElimination/VP
DESPermitManual.pdf ..........................................15
Wash. Dep’t of Ecology, Water Quality Program
Permit Writer’s Manual (2018), https://fortress.wa.
gov/ecy/publications/documents/92109.pdf ...........15
1
INTEREST OF THE AMICI CURIAE1
Amici are former officials of the United States
Environmental Protection Agency (EPA). Collectively, they have many decades of experience in the implementation of the Clean Water Act (CWA) and
therefore have an interest in its proper interpretation. They have seen first-hand that EPA has applied the National Pollutant Discharge Elimination
System (NPDES) permitting program to discharges
from point sources that reach surface waters by passing through groundwater for decades. This experience has shown them that such permitting is feasible
and that it is needed to address a variety of environmental and public health risks. They are concerned
that a reversal of the decision of the Court of Appeals
will disrupt the implementation of the CWA and
create a significant regulatory loophole.
Amicus Judith Enck served as Regional Administrator for EPA Region 2 from December 2009 to January 2017.
Amicus J. Charles Fox served as EPA Assistant
Administrator for Water from July 1998 to January
2001; as Senior Advisor to the Administrator for the
Chesapeake Bay from March 2009 until January
2011; and as Associate Administrator from February
1 Pursuant to Supreme Court Rule 37.6, amici curiae state that
no counsel for any party authored this brief either in whole or
in part and that no person or entity, aside from amici and their
counsel, made any monetary contribution to the preparation or
submission of this brief. Pursuant to Rule 37.3(a), amici state
that counsel of record for Petitioners and Respondents have
consented to the filing of this brief.
2
1997 to July 1998. He also served as the Secretary of
the Maryland Department of Natural Resources from
August 2001 to January 2003.
Amicus Susan Hedman served as Regional Administrator for EPA Region 5 and as EPA Great
Lakes National Program Manager from April 2010 to
February 2016. She was previously environmental
counsel and senior assistant attorney general in the
Illinois Attorney General’s office.
Amicus Kenneth Kopocis served as the Deputy
Assistant Administrator in EPA’s Office of Water
from 2014 to 2015. Previously, he spent close to
three decades working on Capitol Hill, holding several senior positions on the staffs of both the Committee on Transportation and Infrastructure of the
House of Representatives and the Committee on
Environment and Public Works of the Senate.
Amicus Dennis McLerran served as the Regional
Administrator for EPA Region 10 from February
2010 to January 2017.
Amicus H. Curtis Spalding served as the Regional Administrator for EPA Region 1 from December
2009 to January 2017.
Amicus Nancy Stoner worked at EPA for many
years, including serving as Acting Assistant Administrator for Water from 2011 to 2014 and previously
as Director of the Office of Policy Analysis in the
Office of Enforcement and Compliance Assurance.
SUMMARY OF ARGUMENT
Affirmance of the Court of Appeals will maintain
the legal status quo that has been in place for dec-
3
ades. For at least thirty years, until a few months
ago, EPA interpreted the CWA to allow the regulation of point source discharges that pass through
hydrologically-connected groundwater to jurisdictional surface waters under the NPDES program. It
has repeatedly expressed this interpretation in regulatory preambles, permit writers’ manuals, and other
guidance documents. It has regulated such discharges in both general and individual NPDES permits. It has brought enforcement actions against
entities that make such discharges without a permit.
Similarly, many states with authorized permitting
programs have expressed this interpretation in their
own permit writers’ manuals and have regulated
discharges that pass through hydrologicallyconnected groundwater in both general and individual permits. In short, the decision of the Court of
Appeals is consistent with decades of practice.
That practice, as embodied in individual and
general NPDES permits issued by both EPA and
state agencies, demonstrates that the permitting of
discharges that pass through groundwater is feasible. These agencies have tools for determining when
discharges necessitating a NPDES permit occur,
establishing discharge limits or other permit requirements, and identifying monitoring locations to
ensure compliance.
Moreover, the requirements
imposed under such permits are not overly burdensome on EPA, states, or regulated parties.
Reversal of the Court of Appeals would invalidate
these permits and leave a serious gap in legal protections for surface waters. Other laws, such as the
Safe Drinking Water Act (SDWA) and state ground-
4
water protection laws, are no substitute for the CWA
because they do not protect against the same harms
or address the same pollutants. Discharges that pass
through groundwater to surface waters from sources
such as concentrated animal feeding operations,
mines, and coal ash impoundments can cause significant harms to public health and the environment. A
decision to reverse the Court of Appeals would eliminate CWA protections against these discharges.
Contrary to the County of Maui’s contention, it is a
reversal of the Ninth Circuit’s judgment that would
have “sweeping and transformative consequences.”
Pet. Br. 52.
ARGUMENT
I.
Affirming the Decision of the Court of Appeals Will Maintain the Legal Status Quo
The plain language of the CWA prohibits “any
addition of any pollutant to navigable waters from
any point source,” except in compliance with a
NPDES permit (or other exceptions not applicable
here). 33 U.S.C. § 1362(12)(A) (emphasis added); see
id. §§ 1311(a), 1342(a). This prohibition on its face
applies to the County’s injection of treated sewage
into the wells of the Lahaina Wastewater Reclamation Facility—given that it is factually undisputed
that the wells are point sources, the treated sewage
contains pollutants, and that those pollutants are
added to the Pacific Ocean, a navigable water.
However, the County and its amici, including
EPA, would have the Court graft novel exceptions
onto the bare statutory text, either requiring that
discharges enter navigable waters directly from a
5
point source or uninterrupted series of point sources,
Pet. Br. 19, or prohibiting the regulation of discharges that pass through groundwater before reaching
navigable waters, U.S. Br. 15.
Lacking a sound basis for their positions in the
statutory text, the County and EPA resort to a variety of other arguments, including statutory purpose,
legislative history, and policy concerns. Chief among
these policy arguments is the assertion that upholding the Ninth Circuit’s decision would “vastly expand
NPDES permitting” by “transform[ing] a long-extant
statute.” Pet. Br. 45, 49. Such fears are groundless,
however. In fact, the opposite would be true. The
Court need not hypothesize about the result of subjecting the discharge of pollutants from point sources
to surface waters via groundwater to regulation
under the NPDES permitting program. Such discharges have already been regulated under that
program for decades.
A. For at Least Three Decades, EPA Interpreted the CWA to Apply to Point
Source Discharges that Reach Surface
Waters via Groundwater
For decades, EPA interpreted the CWA to subject
discharges from point sources that reach waters of
the United States by passing through groundwater
to the NPDES permitting program. For example, in
1989, in ruling on an administrative appeal involving
three underground injection control (UIC) permits
under the SDWA, EPA Administrator Lee Thomas
discussed the interrelationship between the CWA,
SDWA, and the Resource Conservation and Recovery
Act (RCRA). With regard to discharges that pass
6
through groundwater in particular, he observed that
EPA “declines to exercise CWA jurisdiction over
injection wells (except those that inject into groundwater with a physically and temporally direct hydrologic connection to surface water).” In re Bethlehem
Steel Corp., 2 E.A.D. 715, 718 (1989) (emphasis added). In ruling that the well injections at issue in the
case were not “discharges” under the CWA, the Administrator repeatedly emphasized that they were
injections into “isolated groundwaters” and noted
that petitioner did not allege “that its wells inject
waste into groundwater with a direct hydrologic
connection to surface water. Today’s decision should
not be read to suggest that waste disposal into such
groundwater may never be a ‘discharge’ under CWA
§ 402.” Id. at 720 & n.9.
The next year, EPA promulgated a regulation to
implement some of the 1987 amendments to the
CWA respecting industrial stormwater discharges.
In the preamble to the final rule, EPA specified that
“discharges to ground waters are not covered by this
rulemaking (unless there is a hydrological connection
between the ground water and a nearby surface water
body).”2
In the succeeding years, EPA made many similar
statements. For example, in 1991, in the preamble
to an amendment to the water quality regulations for
tribal lands, EPA reiterated that
2 National Pollutant Discharge Elimination System Permit
Application Regulations for Storm Water Discharges, 55 Fed.
Reg. 47,990, 47,997 (Nov. 16, 1990) (emphasis added) (citations
omitted).
7
the Act requires NPDES permits for discharges to groundwater where there is a direct hydrological connection between groundwaters and surface waters. In 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.3
Many other statements to the same effect followed in
subsequent years.4
Contrary to EPA’s recent characterization of its
prior statements as “collateral” or not “focused on
and explaining the basis for the position,”5 some of
3 Amendments to the Water Quality Standards Regulation That
Pertain to Standards on Indian Reservations, 56 Fed. Reg.
64,876, 64,892 (Dec. 12, 1991) (emphasis added).
4 See, e.g., National Pollutant Discharge Elimination System
General Permit and Reporting Requirements for Discharges
From Concentrated Animal Feeding Operations, 58 Fed. Reg.
7610 (Feb. 8, 1993); Proposed General NPDES Permit for Concentrated Animal Feeding Operations (CAFO) in Idaho, 60 Fed.
Reg. 44,489, 44,493 (Aug. 28, 1995); Final General NPDES
Permit for Concentrated Animal Feeding Operations (CAFO) in
Idaho ID-G-01-0000, 62 Fed. Reg. 20,177, 20,178 (Apr. 25,
1997); Reissuance of NPDES General Permits for Storm Water
Discharges From Construction Activities, 63 Fed. Reg. 7858,
7878, 7881 (Feb. 17, 1998); 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).
5 Interpretive Statement on Application of the Clean Water Act
National Pollutant Discharge Elimination System Program to
Releases of Pollutants From a Point Source to Groundwater, 84
Fed. Reg. 16,810, 16,819–20 (Apr. 23, 2019).
8
these documents provided thorough and directed
analyses of the appropriateness of regulating point
source discharges that pass through groundwater.
For example, EPA’s 2001 notice for proposed CAFO
regulations addressed the issue at length, discussing
case law, academic commentary, and the agency’s
prior statements. It concluded that:
As 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. The
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.6
The 2001 proposal also discussed at length the types
of evidence that could be used to determine whether
there was a direct hydrologic connection between a
point source and jurisdictional surface waters.7
6 National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitations Guidelines and Standards
for Concentrated Animal Feeding Operations, 66 Fed. Reg.
2960, 3017 (proposed Jan. 12, 2001).
7 Id. at 3018-20.
The 2003 final rule did not incorporate the
specific requirements included in the proposal, instead adopting
a case-by-case approach while noting that “[n]othing in this rule
shall 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.” National Pollutant Discharge Elimination
9
In addition, a 1995 memorandum from the Director of the Office of Solid Waste reached the same
conclusion after explicitly considering the relationship between the CWA and RCRA with respect to
discharges
through
hydrologically-connected
groundwater.8 The memorandum explained that the
exclusion from the definition of “solid waste” of
“[i]ndustrial wastewater discharges that are point
source discharges subject to regulation under section
402 of the Clean Water Act,” 40 C.F.R. § 261.4(a)(2),
applied only to “the traditional pipe outfall-type
situation” because its purpose was “to avoid duplicative regulation under two statutes for discharges
that occur at the end-of-the-pipe (i.e., discharges
directly to surface water). EPA did not intend that
the exclusion cover groundwater discharges from
treatment processes that occur prior to the ‘end-ofthe-pipe’ discharge.”9 Therefore, the memorandum
concluded, discharges that pass through “groundwater from treatment and holding facilities” were subject to regulation both under RCRA and under the
NPDES program “where there is a direct hydrologic
System Permit Regulation and Effluent Limitation Guidelines
and Standards for Concentrated Animal Feeding Operations
(CAFOs), 68 Fed. Reg. 7176, 7216–17 (Feb. 12, 2003).
8 Memorandum from Michael Shapiro, Director, Office of Solid
Waste & Lisa K. Friedman, Associate General Counsel, Solid
Waste and Emergency Response Division, EPA, to Waste Management Division Directors, Interpretation of Industrial
Wastewater Discharge Exclusion From the Definition of Solid
Waste (Feb. 17, 1995), https://www3.epa.gov/npdes/pubs/owm60
7.pdf.
9 Id. at 2–3.
10
connection to nearby surface waters of the United
States.”10
Notably, at no point in any of these documents
did EPA claim to discern a reason to treat discharges
that pass through groundwater any differently from
other indirect discharges. Instead, EPA repeatedly
made the distinction between “regulat[ing] releases
of pollu[t]ants to groundwater,” on the one hand, 63
Fed. Reg. at 7878, and regulating “discharges to
surface water which occur via ground water because
of a direct hydrologic connection between the contaminated ground water and nearby surface water,”
on the other, 66 Fed. Reg. at 3016; see also 63 Fed.
Reg. at 7881. It was EPA’s understanding that only
the latter situation is subject to the NPDES program.
EPA continued to interpret the CWA in this fashion until a few months ago. Indeed, it articulated
this interpretation in its amicus brief before the
Court of Appeals in this case. EPA C.A. Br. 3–5, 11–
24. In the technical support document for the 2015
Clean Water Rule, EPA explained that “the agency
has a longstanding and consistent interpretation that
the Clean Water Act may cover discharges of pollutants from point sources to surface water that occur
via ground water that has a direct hydrologic connecThe decision of the
tion to the surface water.”11
10 Id. at 3.
This memorandum therefore anticipates and rebuts
the argument of amici Edison Electric Institute, et al., that
regulating discharges that pass through hydrologically connected groundwater under the NPDES program “would supplant
regulations promulgated under RCRA.” EEI Br. 33.
11 EPA, Response to Comments – Topic 10: Legal Analysis 383
11
Court of Appeals is consistent with this longstanding
interpretation and therefore represents no change in
the law.
B. EPA and State Guidance Documents Instruct Permit Writers to Address Discharges through HydrologicallyConnected Groundwater
Permit writers are EPA or state agency staff who
carry out the day-to-day implementation of the CWA
by incorporating its requirements into NPDES permits—issued either to individual dischargers (in the
case of individual permits) or to categories of dischargers (in the case of general permits). EPA and
state agencies issue manuals and other guidance
documents to assist permit writers in this task.
These guidance documents are therefore key evidence regarding the practical implementation of the
CWA. For decades, EPA and state manuals and
guidance documents have directed permit writers to
account for discharges that pass through hydrologically-connected groundwater when issuing NPDES
permits. EPA’s “longstanding and consistent interpretation” was not merely a series of abstract statements. Rather, it has been—and still is—the day-today practical reality for permit writers.
EPA instructed permit writers to regulate point
source discharges that pass through groundwater in
both the 1996 and 2010 editions of its NPDES Per-
(June 30, 2015) (emphasis added),
https://www.epa.gov/sites/production/files/201506/documents/cwr_response_to_comments_10_legal.pdf.
12
mit Writers’ Manual. The 1996 edition of this manual stated that if “there is a discharge to groundwater that results in a ‘hydrological connection’ to a
nearby surface water, the Director may require the
discharger to apply for an NPDES permit.”12 Similarly, the 2010 edition—which is the current version
of the manual—explained that “[i]f a discharge of
pollutants to ground water reaches waters of the
United States, however, it could be a discharge to the
surface water . . . that needs an NPDES permit.”13
EPA included similar instructions in more specific guidance to writers of particular kinds of NPDES
permits. In a 1993 manual regarding the development of best management practices for NPDES permits to avoid discharges of toxic or hazardous chemicals, EPA explained that “[w]hen identifying pathways and receptors, all logical alternative pathways
should be considered,” including through “groundwater,” and cautioned that in the construction and operation of “[s]ludge and waste storage disposal areas
including landfills, pits, ponds, lagoons, and deepwell injection sites, . . . there may be a potential for
leaching of toxic pollutants or hazardous substance
to groundwater, which can eventually reach surface
waters.”14 A decade later, another guidance docu12 EPA, EPA-833-B-96-003, U.S. EPA Permit Writers’ Manual
13 (1996), https://www3.epa.gov/npdes/pubs/owm0243.pdf.
13 EPA, EPA-833-K-10-001, NPDES Permit Writers’ Manual, at
1-7 (2010), https://www3.epa.gov/npdes/pubs/pwm_2010.pdf;
accord EPA Office of Wastewater Management, Water Permitting 101, at 6 (2002), https://www3.epa.gov/npdes/pubs/101pape.
pdf.
14 EPA Office of Water, EPA-833-B-93-004, Guidance Manual
13
ment explained that “[i]f contamination from storm
water that entered [an] aquifer shows up in a nearby
stream, it could be considered a discharge to waters
of the U.S. due to the hydrologic connection.”15
Similarly, the 1995, 2003, and 2012 EPA guidance documents for NPDES permitting for concentrated animal feeding operations (CAFOs) all describe the release of pollutants to surface water
through groundwater as potential point source discharges. The 1995 guidance stated that “[m]any
discharges of pollutants from a point source to surface water through groundwater (that constitutes a
direct hydrologic connection) also may be a point
source discharge to waters of the United States.”16
The 2003 guidance document identified “[d]epth to
ground water, [and] direct hydrologic connection to
waters of the United States”17 as among those factors
for Developing Best Management Practices (BMP), at 2-21, 2-3
(1993), https://www3.epa.gov/npdes/pubs/owm0274.pdf.
15 EPA, National Pollutant Discharge Elimination System
(NPDES) Storm Water Program Questions and Answers 7
(2004), https://www3.epa.gov/npdes/pubs/sw_qanda_entiredocu
ment.pdf.
16 EPA Office of Water, EPA-833-B-95-001, Guide Manual On
NPDES Regulations For Concentrated Animal Feeding Operations 3 (1995), https://www3.epa.gov/npdes/pubs/owm0266.pdf.
17 EPA Office of Wastewater Management, EPA-833-B-04-001,
NPDES Permit Writers’ Guidance Manual and Example
NPDES Permit for Concentrated Animal Feeding Operations 311, tbl. 3-3 (2003),
https://www3.epa.gov/npdes/pubs/cafo_permit_guidance_entirep
ub.pdf [hereinafter “2003 CAFO Manual”].
14
for permit writers to consider in determining whether an animal feeding operation is a significant contributor of pollutants to waters of the United States,
and therefore a CAFO subject to NPDES permitting.
The most recent and current version of this manual
retains this factor.18 In addition, an “Example Letter
in Follow-up to an Inspection” included as an appendix to the 2003 manual stated: “Please be advised
that any illicit discharges to surface water or to surface water through ground water are violations of the
Clean Water Act and subject to enforcement action
with penalties.”19 A reversal of the Court of Appeals
would disrupt permit writers’ current implementation of these EPA guidance documents.
The CWA initially assigned NPDES permitting
authority to EPA. Under the cooperative federalism
scheme created by the statute, however, states can
take over permitting for facilities within their borders as long as they satisfy certain minimum requirements and receive approval from EPA. 33
U.S.C. § 1342(b). At present, 47 states have assumed that authority.20 A number of states have
included instructions similar to those in the EPA
18 EPA Office of Water, EPA-833-F-12-001, NPDES Permit
Writers’ Manual for Concentrated Animal Feeding Operations 214, tbl. 2-3 (2012),
https://www3.epa.gov/npdes/pubs/cafo_permitmanual_entire.pd
f [hereinafter “2012 CAFO Manual”].
19 2003 CAFO Manual, supra note 17, at App. C-3 (emphasis
added).
20 State Program Authority, Tab 2 of NPDES State Program
Information, EPA, https://www.epa.gov/npdes/npdes-stateprogram-information#tab-2 (last visited July 17, 2019).
15
manuals described above in their permit writing
guidance. Thus, for example, Oregon has issued
guidance for municipal wastewater treatment plants
that, like the County’s, discharge to surface water
via groundwater.21 That guidance is unequivocal:
“the appropriate permit to use for this type of system
is an NDPES permit because the indirect discharge
by design will reach surface water.”22 Similarly,
Washington’s Department of Ecology has explained
that it “believes the best guidance on this issue
comes from” Washington Wilderness Coalition v.
Hecla Mining, 870 F. Supp. 983, 990 (E.D. Wash.
1994), which held that discharges that enter jurisdictional surface waters through groundwater required
a NPDES permit if the pollutants could “be traced
from their source to surface waters.”23 An EPA21 Oregon Dep’t of Envtl. Quality, Disposal of Municipal
Wastewater Treatment Plant Effluent by Indirect Discharge to
Surface Water via Groundwater or Hyporheic Water, Internal
Management Directive (IMD) (2007),
https://www.oregon.gov/deq/Filtered%20Library/IMDindirectdis
charge.pdf.
22 Id. at 1.
23 Wash. Dep’t of Ecology, Water Quality Program Permit Writ-
er’s Manual 9 (2018), https://fortress.wa.gov/ecy/publications/do
cuments/92109.pdf; see also Arizona Dep’t of Mines & Mineral
Resources, Arizona Mining Permitting Guide 109 (2011),
http://repository.azgs.az.gov/sites/default/files/dlio/files/nid1128/
arizona_mining_permitting_guide_2011.pdf (“[I]f there is a
discharge to ground water which results in a hydrologic connection to nearby surface waters, ADEQ may require the discharger to apply for an AZPDES permit.”); Virginia Dep’t of
Envtl. Quality, VPDES Permit Manual, at III-18 (2014),
https://www.deq.virginia.gov/Portals/0/DEQ/Water/PollutionDis
chargeElimination/VPDESPermitManual.pdf (“Storm water
16
funded evaluation of the potential development and
implementation of an authorized NPDES program by
the Lummi Nation also included similar guidance.24
C. EPA and the States Have Issued Many
NPDES Permits that Address Discharges that Pass through Groundwater to
Jurisdictional Surface Waters
Most importantly, both EPA and authorized
states have in fact regulated—and continue to regulate—point source discharges that enter navigable
waters via groundwater in both individual and general NPDES permits. The existence of these permits,
some of which date back almost three decades,
demonstrates both that the decision of the Court of
Appeals represents the regulatory status quo and—
as will be discussed in more detail below—that the
regulation of such discharges is administratively
feasible.
EPA has issued many such permits itself. For
example, at various times EPA has issued general
permits that address discharges through hydrologically-connected groundwater for CAFOs in Idaho,
New Mexico, Louisiana, New Mexico, Oklahoma, and
discharges to ground water are exempt from the permitting
requirements, unless there is a hydrological connection between
the ground water and a nearby surface waterbody.”).
24 Lummi Natural Resources Dep’t, Evaluation Report on the
Development and Implementation of a Lummi Nation NPDES
Program 16–17 (2005),
https://www.lummi-nsn.gov/userfiles/83_NPDES%20Delegation
%20ReportFINAL.pdf.
17
Texas, and on tribal lands in New Mexico and Oklahoma.25 It has also issued individual permits that
address such discharges to wastewater treatment
plants,26 mines,27 and an oil field fluids treatment
25 EPA Region 10, Authorization to Discharge Under the Na-
tional Pollutant Discharge Elimination System for Concentrated Animal Feeding Operations, No. IDG010000, Part III.D.1 (p.
30) (Mar. 29, 2012), https://www.epa.gov/sites/production/files/2
017-12/documents/r10-npdes-idaho-cafo-gp-id010000-finalpermit-2012.pdf; EPA Region 6, National Pollutant Discharge
Elimination System (NPDES) General Permit for Discharges
from Concentrated Animal Feeding Operations (CAFOs) in New
Mexico, No. NMG010000, at Part II.A.2(b)(vi) (pp. 3–4 of Part
II) (July 14, 2016), https://www.env.nm.gov/wp-content/uploads/
2017/07/NMG010000-CAFO-NM-20160901.pdf; National Pollutant Discharge Elimination System General Permit and Reporting Requirements for Discharges From Concentrated Animal
Feeding Operations, 58 Fed. Reg. 7610 , 7631 (Feb. 8, 1993).
26 EPA Region 10, Authorization to Discharge Under the National Pollutant Discharge Elimination System, Taholah Village
Wastewater Treatment Plant, No. WA0023434 (June 4,
2015), https://www.epa.gov/sites/production/files/2017-09/docum
ents/r10-npdes-taholah-wa0023434-final-permit-2015.pdf
[hereinafter “Taholah Permit”]; EPA Region 5, Authorization to
Discharge Under the National Pollutant Discharge Elimination
System, Neopit Wastewater Treatment Facility, No. WI0073059-2 (Sept. 22,
2016), https://www.epa.gov/sites/production/files/2017-02/docum
ents/wi0073059fnlprmt09_22_2016_0.pdf [hereinafter “Neopit
Permit”].
27 EPA Region 6, Authorization to Discharge Under the Nation-
al Pollutant Discharge Elimination System, Questa Mine, No.
NM0022306, at Part II.D (Sept. 30, 2013), https://www.env.nm.
gov/swqb/NPDES/Permits/NM0022306-Chevron-Questa.pdf;
EPA Region 6, Fact Sheet, Molycorp, Inc., NPDES Permit No.
NM0022306, at 4-6 (May 16, 2006), http://clinics.law.harvard.ed
u/environment/files/2019/07/Molycorp-Fact-Sheet.pdf [hereinafter “Molycorp Fact Sheet”].
18
and disposal facility.28 As recently as last year, EPA
issued a draft individual permit for a CAFO in New
Hampshire that:
requires the permittee to document that no
direct hydrologic connection exists between
the contained wastewater and surface waters
of the United States. Where the permittee
cannot document that no direct hydrologic
connection exists, the ponds, lagoons and basins of the containment facilities must have a
liner which will prevent the potential contamination of surface waters.”29
This permit tracks EPA’s guidance that “requirements might address, for example, the use of liners
in areas where there is the potential to discharge to
groundwater that has a direct hydrologic connection
to waters of the U.S.”30
Similarly, many states with authorized NPDES
programs have issued draft or final permits that
28 EPA Region 6, Statement of Basis, US Liquids of Louisiana,
Ltd., NPDES Permit No. LA0068420 (May 9, 1997),
http://clinics.law.harvard.edu/environment/files/2019/07/USLiquids-of-Louisiana-Statement-of-Basis.pdf; see Molycorp Fact
Sheet, supra note 27, at 7 (mentioning final US Liquids of
Louisiana, Ltd. permit from 1999 as an example of a permit
that “address[es] discharges having the potential to flow into
ground water which is hydrologically connected to surface
waters”).
29 EPA Region 1, Fact Sheet, Forbes Farm Partnership, Inc.,
NPDES Permit No. NH0023540, at 30 (2018), https://www.epa.
gov/sites/production/files/2018-04/documents/draftnh0023540pe
rmit.pdf.
30 2012 CAFO Manual, supra note 18, at 5-17; see id. O-25.
19
address discharges that pass through hydrologicallyconnected groundwater.
These permits include
CAFO general permits issued by Oklahoma, Tennessee, and Texas,31 California’s 2014 General Permit
for Storm Water Discharges Associated with Industrial Activities,32 Colorado’s General Permit for Discharges from Sand and Gravel Mining and Processing,33 as well as draft or final individual permits
from Arizona,34 Colorado,35 Minnesota,36 and Mon31 Tex. Comm’n on Envtl. Quality, General Permit to Discharge
Wastes, TPDES General Permit No. TXG920000, at 33–
36 (July 10, 2014), https://www.tceq.texas.gov/assets/public/per
mitting/wastewater/general/txg920000.pdf; Tenn. Dep’t of Env’t
& Conservation, General State Operating Permit for Concentrated Animal Feeding Operations, No. SOPC00000, at 12–
13 (Aug. 1, 2015), https://www.tn.gov/content/dam/tn/environme
nt/water/documents/permit_water_sopc00000_pmt.pdf; Oklahoma Dep’t of Agric., Food, & Forestry, Agriculture Pollutant
Discharge Elimination System (AgPDES) General Permit for
Discharges from Concentrated Animal Feeding Operations
(CAFOs) in Oklahoma, AgPDES Permit No. OKG010000, at II4, III-10-11 (Mar. 30, 2017), https://www.oda.state.ok.us/aems/O
klaho-ma%20AgPDES%20CAFO%20General%20Permit%20OK
G01000%202017-2022.pdf.
32 Cal. State Water Resources Control Board, NPDES General
Permit For Storm Water Discharges Associated With Industrial
Activities, Order NPDES No. CAS000001, Fact Sheet at 72
(Apr. 1, 2014),
https://www.waterboards.ca.gov/board_decisions/adopted_order
s/water_quality/2014/wqo2014_0057_dwq_rev_mar2015.pdf
[hereinafter “California Storm Water Permit”].
33 Colo. Dep’t of Public Health & Env’t, Colorado Discharge
Permit System (CDPS) Fact Sheet to Permit Number
COG5000000, at 12 (Oct. 13, 2016), https://www.colorado.gov/pa
cific/sites/default/files/WQ_PER_COG500000_FS_1.pdf.
34 Ariz. Dep’t of Envtl. Quality, Draft Fact Sheet, Arizona Pollu-
20
tana.37 Cumulatively, these permits represent decades of experience, current practice, and—given the
tion Discharge Elimination System (AZPDES) Permit No.
AZ0026174, at 3 (July 14, 2017),
http://static.azdeq.gov/pn/fs_azpdes_alpine.pdf [hereinafter
“Alpine Fact Sheet”].
35 Authorization to Discharge under the Colorado Discharge
Permit System (Jan. 26, 2012); Colorado Discharge Permit
System (CDPS) Fact Sheet to Permit Number CO0041351,
Western Sugar Cooperative, Fort Morgan Facility (Jan. 26,
2012) [hereinafter “Western Sugar Cooperative Fact Sheet”].
Both documents can be downloaded
from https://environmentalrecords.colorado.gov/HPRMWebDra
wer/Record?q=containerEx:32656.
36 Minn. Pollution Control Agency, National Pollutant Discharge Elimination System/State Disposal System
(NPDES/SDS) Permit Program Fact Sheet, Permit No.
MN0071013, at 62 (Jan. 31, 2018), https://www.pca.state.mn.us/
sites/default/files/wq-wwprm1-51gg.pdf; see also Letter from
Kevin M. Pierard, Chief NPDES Programs Branch, EPA Region
5, to Ann Foss, Metallic Mining Sector Director, Minnesota Pollution Control Agency, at 2 (Nov. 3, 2016), https://www.ee
news.net/assets/2019/01/16/document_daily_01.pdf (“EPA’s
position as explained above is consistent with EPA’s past interpretation that the CWA applies to discharges of pollutants from
a point source to waters of the United States, including those
made through a ground water hydrologic connection.”).
37 Mont. Dep’t of Envtl. Quality, Authorization to Discharge
Under the Montana Pollutant Discharge Elimination System,
Permit No. MT0021849, at 3 (Jan. 11, 2014),
http://deq.mt.gov/Portals/112/Water/WPB/MPDES/Majors/MT0
021849PER.pdf [hereinafter “City of Sidney Permit”]; Tintina
Montana, Inc., Integrated Discharge Permit Application Narrative Black Butte Copper Project Meagher County, Montana, at 3-1 (Dec. 11, 2017), https://deq.mt.gov/Portals/1
12/Land/Hardrock/Documents/TintinaMines/R17%20Permit%2
0Application%20Narrative.pdf.
21
broad applicability of the general permits cited
above—the likely regulation of thousands of facilities.38
II. Regulating Discharges that Pass through
Groundwater is Administratively Feasible
An examination of the NPDES permits issued by
EPA and the States that address discharges through
hydrologically-connected groundwater demonstrates
the feasibility of regulating such discharges. Agencies have well-established tools for determining when
discharges necessitating a NPDES permit occur,
establishing discharge limits, and identifying monitoring locations to ensure compliance. In addition,
the requirements imposed under such permits are
not overly burdensome on EPA, states, or regulated
parties.
A. It is Feasible to Determine when a Facility Needs a NPDES Permit for Discharges that Pass through Groundwater
As EPA has explained, “[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
38 EPA has also brought at least one enforcement action against
an entity that EPA alleged was violating the CWA by discharging pollutants to navigable waters via groundwater without a
NPDES permit. See Notice of Lodging of Consent Decree Pursuant to the Clean Water Act; ConAgra, Inc., 63 Fed. Reg.
55,409 (Oct. 15, 1998) (explaining that a consent decree terminating an EPA enforcement action addresses “violations of the
CWA . . . including . . . unauthorized discharges of pollutants to
surface waters via . . . hydrologically connected groundwater”).
22
NPDES permit is a factual inquiry, like all point
source determinations.” 66 Fed. Reg. at 3017. Such
determinations are manageable both for agencies
and dischargers.
In many cases, it will be readily apparent to the
operator of a facility that its operations will lead to
discharges to surface waters. For example, “[i]n the
absence of appropriate precautions, the on-site impoundments” where coal-fired power plants located
adjacent to navigable waters dispose of coal ash
“obviously pose significant risks of leaks that contaminate navigable waters by traveling through
groundwater.”39
Even when the existence of a discharge is not so
obvious, there are standard tools and sources of information that agencies and permittees can use. In
the preamble to its 2001 proposed CAFO regulations,
EPA identified several sources that could help regulated entities in determining whether their discharges to groundwater had a direct hydrologic connection
to jurisdictional surface waters. These include proximity to surface waters; whether the discharge occurs in sensitive geologic or hydrogeologic settings,
such as “karst, fractured bedrock or other shallow/unconsolidated aquifers;” and United States
Geological Survey (USGS) maps of Hydrologic Landscape Regions (HLRs). 66 Fed. Reg. at 3018-20.
39 Comment of Attorneys General of Maryland, California,
Massachusetts, Oregon, and Vermont on Clean Water Act
Coverage of “Discharges of Pollutants” via a Direct Hydrologic
Connection to Surface Water (EPA-HQ-OW-2018-0063; FRL9973-41-OW), at 8 (May 21, 2018).
23
Moreover, a standard requirement in NPDES
general permits for facilities with disposal ponds,
such as CAFOs, is that the permittee either install a
liner around the pond or demonstrate the lack of a
hydrologic connection between the pond and surface
waters.40 For example, Oklahoma’s CAFO general
permit requires a certification from an engineer that
“leakage will not migrate to a surface water.”41 The
certification must include “maps showing ground
water flow paths, or that the leakage enters a confined environment” as well as “information on the
hydraulic conductivity and thickness of the natural
materials underlying and forming the walls of the
containment structure up to the wetted perimeter.”42
Neither the County nor its amici have suggested that
the requirement to make such determinations, which
are likely in force for thousands of facilities around
the country, are unmanageable.
40 See 2012 CAFO Manual, supra note 18, at O-25 to O-26
(providing EPA guidance on liner requirements).
41 Oklahoma Dep’t of Agric., Food, & Forestry, AgPDES Permit
No. OKG010000, supra note 31, at III-11.
42 Id.
Other general permits including a similar requirement to
document a lack of hydrological connection include EPA Region
6’s 1993 CAFO general permit, 58 Fed. Reg. at 7631; California
Storm Water Permit, supra note 32, at 72-73; EPA Region 10’s
2012 general permit for CAFOs in Idaho, Authorization to
Discharge Under the National Pollutant Discharge Elimination
System for Concentrated Animal Feeding Operations, No.
IDG010000, supra note 25; Texas’s 2014 CAFO general permit,
Tex. Comm’n on Envtl. Quality, TPDES General Permit No.
TXG920000, supra note 31, at 33-36; and Tennessee’s 2015
CAFO general permit, Tenn. Dep’t of Env’t & Conservation,
General State Operating Permit for Concentrated Animal
Feeding Operations, No. SOPC00000, supra note 31, at 12-13.
24
B. NPDES Permitting Requirements for
Discharges that Pass through Groundwater are not Overly Burdensome
Existing NPDES permits demonstrate the range
of permitting strategies and requirements that can
be applied to discharges that pass through groundwater. These methods include absolute prohibitions
on discharges from certain locations, pre-treatment
requirements, interception wells to remove contaminated water for treatment, and numeric effluent
limitations that can be enforced at various locations,
including downgradient monitoring wells. All of
these requirements have successfully been incorporated into NPDES for many years, demonstrating
the feasibility of these approaches.
A number of permits include complete prohibitions on discharges from particular locations. As
mentioned above, it is common for CAFO general
permits to specify that ponds, pits, or lagoons operated by the permittee be properly lined to prevent the
migration of pollutants into groundwater. Thus a
CAFO general permit issued in 1993 by EPA Region
6 required that permittees install a liner in all
wastewater retention ponds, lagoons, and basins,
unless the permittee could demonstrate that “no
significant hydrologic connection exists between the
contained wastewater and surface waters of the
United States.”43
43 58 Fed. Reg. at 7631; see sources cited in footnote 42, supra.
Another permit with a similar requirement is EPA Region 6’s
1999 NPDES permit for the US Liquids of Louisiana oil field
liquids treatment and disposal facility. According to the 1997
Statement of Basis for the permit, the facility “dewater[s] the
25
Another option for discharges from a disposal
pond or similar structure is to require pre-treatment
of the wastewater before it enters the pond. For
example, the Arizona Department of Environmental
Quality has issued a draft permit for the Alpine Sanitary District. The District treats its wastewater by
disposing of it in “three lined lagoons which provide
primary and secondary treatment through sedimentation and anaerobic digestion.”44 When these ponds
do not have sufficient capacity, the permit authorizes
the “discharge of excess effluent from Pond #3 to
Pond #4, which will serve as an unlined infiltration/evaporation basin.”45 However,
[d]ue to the shallow depth to groundwater,
the close proximity of Pond # 4 to the San
Francisco River, and Pond # 4 being in the
100 year flood plain, ADEQ considers the hydrologic connectivity of infiltration from Pond
#4 to the San Francisco River as discharge to
a water of the US.46
fluids in large treatment cells, store[s] the solids, and inject[s]
the associated water and storm water.” EPA Region 6, Statement of Basis, US Liquids of Louisiana, Ltd., NPDES Permit
No. LA0068420, supra note 28, at 3. EPA indicated that “[t]he
permittee will be required to prove that there is no hydrologic
connection between the treatment cells and surface waters. If
they are unable to prove such a connection does not exist, they
will be required to install liners in the treatment cells.” Id. at
4.
44 Alpine Fact Sheet, supra note 34, at 2.
45 Id.
46 Id. at 3.
26
Thus, to ensure that these discharges do not exceed
applicable effluent limitations, the draft permit requires that “[e]ffluent from Pond #3 will be pumped
to a disinfection system to be chlorinated and dechlorinated prior to being discharged to Pond #4” and
that “phosphorus reduction will be achieved by applying ferric chloride to Pond #3 prior to discharging.”47
Another approach is to require that the permittee intercept and remove contaminated water by
means of pumping before it enters surface waters.
For example, the 2006 NPDES permit for the Chevron Questa Mine in New Mexico (formerly owned by
Molycorp Inc.) required that the facility operate a
“seepage interception system” including extraction
wells in order to prevent the discharge of pollutants
to the Red River through groundwater.48 EPA reissued the permit in 2013, retaining this requirement.49 The Response to Comments for the 2013
permit explained that the permit imposed controls on
47 Id. at 2.
Similarly, the permit for the City of Sidney
Wastewater Treatment Facility in Montana requires ultraviolet
disinfection before wastewater is discharged into infiltration/percolation cells, from which it is discharged through
groundwater into the Yellowstone River. City of Sidney Permit,
supra note 37, at 3.
48 EPA Region 6, Authorization to Discharge under the National
Pollutant Discharge Elimination System, Permit No.
NM0022306, at II-1 (Aug. 29, 2006), https://semspub.epa.gov/wo
rk/06/619835.pdf.
49 EPA Region 6, Authorization to Discharge under the National
Pollutant Discharge Elimination System, Permit No.
NM0022306, at II-2 (Sept. 30, 2013), https://www.env.nm.gov/s
wqb/NPDES/Permits/NM0022306-Chevron-Questa.pdf.
27
seepage because “EPA has the jurisdiction under the
CWA to regulate or eliminate seepage which reaches
the waters of the US through hydrologic connection.”50 The fact sheet for the 2006 permit describes
how the permittee “installed interception wells to
capture the plume from the tailings pond.”51 EPA
concluded that because “the ground water plume
from the tailings ponds is successfully captured by”
the permittee, “no additional permit requirements
are proposed.”52
In addition, some permits incorporate numeric
effluent limitations. Thus the permit for the Western Sugar Cooperative sugar beet processing facility,
issued by the Colorado Department of Public Health
and Environment in 2012, requires that discharges
into unlined disposal ponds meet numeric limits for
oil and grease, pH, E. coli, ammonia, sulfide, chloride, temperature, and electrical conductivity.53
Similarly, the draft Alpine Sanitary District permit
described above includes numerical limits on, among
50 EPA Region 6, NPDES Permit No. NM0022306 – Response
to Comments 18 (Sept. 30, 2013), https://www.env.nm.gov/swqb/
NPDES/Permits/NM0022306-Chevron-Questa.pdf.
51 Molycorp Fact Sheet, supra note 27, at 4.
52 Id. The Fact Sheet cites several other NPDES permits that
included similar requirements. Id. at 6-7 (citing NPDES permits AZ0022705 (1999), AZ0020389 (2000), and AZ0020516
(2000)).
53 Western Sugar Cooperative Fact Sheet, supra note 35, at 18-
23.
28
other things, chlorine, E. coli, and pH for discharges
into the unlined infiltration/evaporation basin.54
Permits can require monitoring of compliance either with numeric limitations or with discharge
prohibitions at various locations. For example, the
2016 NPDES permit for the Neopit Wastewater
Treatment Facility operated by the Menominee Tribal Utilities in Wisconsin applies to a facility that
discharges wastewater from a settling pond to seepage cells. From the seepage cells, the effluent passes
through groundwater before reaching Tourtillotte
Creek, a water of the United States.55 The permit
requires that the facility take effluent samples from
the settling pond (before effluent enters the seepage
cells) as well as samples from downgradient monitoring wells.56 Similarly, the 2015 permit for the
Taholah Village Wastewater Treatment Plant requires monitoring of effluent before it enters rapid
infiltration basins as well as monitoring of the receiving water—the Quinault River.57
Colorado’s
permit for the Western Sugar Cooperative sugar beet
processing facility treats unlined ponds as a point
source and requires samples from the ponds as dis54 Alpine Fact Sheet, supra note 34, at 8-10; see also Neopit
Permit, supra note 26, at I-4 (describing limits for biological
oxygen demand, total dissolved solids, chloride, nitrogen, nitrite, and nitrate); City of Sidney Permit, supra note 37, at 4
(containing numerical limits on biological oxygen demand, total
suspended solids, pH, nitrogen, and phosphorus).
55 Neopit Permit, supra note 26, at I-1.
56 Id. at I-4, I-6.
57 Taholah Permit, supra note 26, at 6-9.
29
charge monitoring.58 In deciding on this monitoring
strategy, the agency considered other compliance
monitoring points, including monitoring wells and
lysimeters, further demonstrating the variety of
approaches available to permit writers.
These permits demonstrate the range of options
available to address discharges that enter surface
waters by passing through groundwater. It is feasible for agencies to identify when such discharges
occur, to develop either numeric limits or other permit provisions to address them, and to monitor the
permittee’s compliance with the permit’s requirements.
III. Reversal of the Court of Appeals Would
Disrupt Existing Protections against Significant Harms that are not Addressed by Other Statutes
A ruling that discharges which reach surface waters by passing through groundwater are exempt
from the NPDES program would disrupt the regulatory status quo and leave a significant gap in protection. Several of the County’s amici suggest that
NPDES permitting of such discharges is unnecessary
and duplicative. See, e.g., EEI Br. 32-40; KMEP Br.
20-26; NACWA Br. 29-37. As Respondents explain,
however, these other laws are not adequate substitutes for the CWA’s protections. Resp. Br. 49-52.
For example, RCRA is aimed at the disposal of “hazardous” waste, but does not address many of the
conventional pollutants such as pH, biological oxygen
58 Western Sugar Cooperative Fact Sheet, supra note 35, at 6,
30.
30
demand, and total suspended solids regulated by the
NPDES permits described above. In addition, the
SDWA and state groundwater protection laws are
aimed at avoiding harm to groundwater (in the case
of the SDWA, to underground drinking water sources
in particular) rather than harm to surface waters.
These statutes therefore do not provide a reason to
ignore the plain text of the CWA. POM Wonderful
LLC v. Coca-Cola Co., 573 U.S. 102, 115 (2014)
(“When two statutes complement each other, it
would show disrespect for the congressional design to
hold that Congress nonetheless intended one federal
statute to preclude the operation of the other.”).59
59 Ironically, however, state groundwater protection laws—
while not a substitute for the CWA’s protections—do rebut
Petitioner and EPA’s arguments that NPDES permitting of
discharges that pass through groundwater is impractical.
Many of the tools included in the state groundwater protection
laws that they tout are similar to the very aspects of NPDES
permitting that they claim are unmanageable. For example, a
number of states prohibit unpermitted discharges of pollutants
into groundwater. West Virginia Br. 21-24. Moreover, some
states prohibit groundwater discharges that adversely affect
surface water quality or cause violations of surface water quality standards. See, e.g., Ariz. Admin. Code R18-11-405.B; Fla.
Admin. Code r. 62-520.-310(2); 314 Mass. Code Regs. 5.09(1).
Permits that comply with these requirements raise many of the
same practical concerns—such as the need to develop modeling
or other methods to “account for how effluent changes physically and chemically between the point source” and the receiving
water, NACWA Br. 19, or the permittee’s inability to “control
changes to its effluent quality between the outfall and entry
into” the designated receiving water, id. at 20—that are potentially implicated by NPDES permits for discharges that pass
through groundwater.
To be clear—none of this is to suggest that such laws are a
31
Overturning the decision of the Court of Appeals
would cause significant regulatory disruption. The
number of dischargers who would be affected by the
elimination of these existing NPDES permit protections is likely in the thousands. Many of the permits
identified above are general permits, which therefore
apply to large numbers of sources. NPDES general
permits currently in effect that directly address discharges that pass through groundwater include
CAFO general permits in Idaho, New Mexico, Oklahoma, Tennessee, and Texas.60 They also include
California’s General Permit for Storm Water Discharges Associated with Industrial Activities and
Colorado’s General Permit for Discharges from Sand
and Gravel Mining and Processing.61
In addition, discharges that pass through
groundwater to surface waters can cause significant
harms. For example, discharges from CAFOs can
cause nitrate pollution, harmful algal blooms, and
transmission of disease-causing microorganisms.62
substitute for the CWA’s protections. They do not address the
same harms and they do not provide nationwide protection.
But they do provide additional evidence—on top of the examples from the NPDES permits discussed above—of the feasibility of using permits to address the impacts to surface waters of
discharges that pass through groundwater.
60 See sources cited in footnotes 25 & 31, supra.
61 See sources cited in footnotes 32–33, supra.
62 See, e.g., JoAnn Burkholder et al., Impacts of Waste from
Concentrated Animal Feeding Operations on Water Quality, 115
Envtl. Health Persp. 308 (2007); U.S. Fish & Wildlife Service &
EPA Region 6, Environmental Contaminants Associated with a
Swine Concentrated Animal Feeding Operation and Implica-
32
These discharges are not infrequent. EPA noted in
its response to comments on the 2009 New Mexico
CAFO General Permit that “[s]ince the issuance of
the 1993 permit, EPA has observed that many liners
leak and discharge to groundwater which eventually
discharges to surface water, via a hydrologic connection.”63 In 2004, EPA completed a Risk Assessment
Evaluation for Concentrated Animal Feeding Operations, which noted that “[n]utrients, pathogenic organisms, hormones and metals may easily reach
waterbodies” from, among other pathways, “groundwater flow.”64
The same report observed that
“groundwater flow is the primary contributor of nitrate to surface water from agriculture.”65
Mines are another important source of discharges through groundwater. A 1993 letter prepared by
EPA Region 8 discusses the agency’s evaluation of
how “pollutants from some mining sites are moving
tions for McMurtrey National Wildlife Refuge 7-19
(2004), https://ecos.fws.gov/ServCat/DownloadFile/21670?Refere
nce=23151.
63 Response to Comments on the Proposed National Pollutant
Discharge Elimination System (NPDES) General Permit for
Discharges from Concentrated Animal Feeding Operations
(CAFOs) in New Mexico (NMG010000), at 21 (2009) (emphasis
added),
http://clinics.law.harvard.edu/environment/files/2019/07/NMCAFO-General-Permit-Response-to-Comments.pdf.
64 EPA, Risk Assessment Evaluation for Concentrated Animal Feeding Operations 4 (2004), https://nepis.epa.gov/Exe/ZyP
DF.cgi/901V0100.PDF?Dockey=901V0100.PDF.
65 Id. at 25.
33
into the ground water and then into nearby surface
water” and how these discharges either were not
authorized by the mines’ NPDES permits or that the
mines had claimed to be non-discharging and therefore did not have permits.66 These discharges were
causing “serious water quality problems at some
mines.”67 To address these harms, the letter concluded, “facilities are now being required to obtain
NPDES permits covering all outfalls including
ground water discharges determined to be hydrologically connected to surface water.”68
NPDES permit writers have continued to rely on
this conclusion. Thirteen years later, the NPDES
fact sheet for the Questa mine cited this letter in
support of regulating discharges via groundwater.69
And as EPA’s hard rock mining framework observes,
“[r]eleases of pollutants . . . indirectly via ground
water that has a hydrological connection to surface
water” are a potential environmental impact to surface water from mining.70
66 Letter from Max H. Dodson, Director, Water Management
Division, EPA Region 8, to Dan Fraser, Chief, Water Quality
Bureau, Montana Department of Health & Environmental Sciences, NPDES Permit Issues Hard Rock Mines, at 2 (Dec.
22, 1993), http://www.sec.nv.gov/appeal_docs/epa_letter_cwa_1
22293.pdf.
67 Id.
68 Id.
69 Molycorp Fact Sheet, supra note 27, at 6-7.
70 EPA Office of Water, EPA’s National Hardrock Min-
ing Framework, at B-3 (1997), https://www.epa.gov/sites/produc
tion/files/2015-10/documents/hardrock_mining_framework_0.pd
f. EPA has been issuing NPDES permits to mines that address
34
Because of their need for cooling water, coal-fired
power plants—and their associated coal ash impoundments—are typically located next to rivers or
other navigable waters. These impoundments, such
as those at issue in Kentucky Waterways Alliance v.
Kentucky Utilities Company, 905 F.3d 925 (6th Cir.
2018), are sources of arsenic, chromium, selenium,
lead, and other heavy metals.71 These toxic pollutants leak from unlined impoundments into shallow
groundwater, and from there, into adjacent surface
waters.72
In short, the existing regime, under which discharges through hydrologically-connected groundwater are regulated under the NPDES program, is
needed to address serious threats to water quality
that are not dealt with by other statutes. A decision
reversing the Court of Appeals would disrupt the
implementation of these NPDES permits, create a
their discharges that pass through groundwater for decades, yet
there is no evidence that this practice has harmed the mining
industry.
71 EPA, EPA-600/R-09/151, Characterization of Coal Combus-
tion Residues from Electric Utilities – Leaching and Characterization Data Hazardous and Solid Waste Management System
(2009), https://nepis.epa.gov/Exe/ZyPDF.cgi/P1007JBD.PDF?Do
ckey=P1007JBD.PDF; Disposal of Coal Combustion Residuals
From Electric Utilities, 80 Fed. Reg. 21,302, 21,456–57 (Apr. 17,
2015).
72 Jennifer S. Harkness et al., Evidence for Coal Ash Ponds
Leaking in the Southeastern United States, 50 Envtl. Sci. &
Technology 6583, 6591 (2016) (“[T]he results presented in this
study suggest significant releases of coal ash impacted water to
the environment.”).
35
significant loophole, and put the water bodies protected by these permits—and the people who depend
upon them—at risk.
CONCLUSION
For the foregoing reasons, the Court should affirm the judgment of the Ninth Circuit.
Respectfully submitted,
SHAUN A. GOHO
Counsel of Record
EMMETT ENVIRONMENTAL
LAW & POLICY CLINIC
HARVARD LAW SCHOOL
6 Everett St., Suite 5116
Cambridge, MA 02138
617-496-2058
sgoho@law.harvard.edu
Counsel for Amici Curiae
July 19, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.