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

Supreme Court briefJul 19, 2019

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Text

No. 18-260

In The

Supreme Court of the United States

COUNTY OF MAUI,

Petitioner,

HAWAI`I WILDLIFE FUND; SIERRA CLUB MAUI GROUP; SURFRIDER FOUNDATION;

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

ANDERSON COUNTY, SOUTH CAROLINA

AND DECATUR COUNTY, TENNESSEE

IN SUPPORT OF RESPONDENTS

Cale Jaffe

Counsel of Record

Director, Environmental

and Regulatory Law Clinic

University of Virginia

School of Law

580 Massie Road

Charlottesville, VA 22903

Telephone: (434) 924-4776

cjaffe@law.virginia.edu

Jason Pearcy

County Attorney for

Decatur County, Tennessee

26 West Second Street

Parsons, TN 38363

Telephone: (731) 847-6909

jason@jpearcylaw.com

Leon C. Harmon

County Attorney for

Anderson County, South Carolina

101 South Main Street

Anderson, SC 29624

Telephone: (864) 222-2123

lharmon@andersoncountysc.org

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

TABLE OF CONTENTS

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

STATEMENT OF INTEREST OF AMICI ................. 1

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

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

Petitioner’s Test to Limit CWA

Jurisdiction Would Undermine Local

Government Autonomy. ............................... 6

II.

Petitioner Grossly Misreads the

Ninth Circuit’s Decision to Wrongly

Assert It Would Require Expanded

Regulation of Septic Tanks ........................ 11

III. Potential Liability Under Other

Statutes Does Not Allow Petitioner

to Skirt Its NPDES Obligations ................ 14

IV. The Point/Nonpoint Source

Distinction Is Not One of Direct

Versus Indirect Discharges, But One

of Discrete Conveyances Versus

Diffuse Sources ........................................... 16

The Ninth and Fourth Circuits’

Rulings Do Not Regulate

Groundwater Qua Groundwater ............... 20

VI. Legislative History, to the Extent

Relevant, Demonstrates

Congressional Intent to Regulate

the Point Source Pollution Problems

at Issue Here .............................................. 26

CONCLUSION .......................................................... 32

iii

TABLE OF AUTHORITIES

CASES

Consumer Product Safety Commission v. GTE

Sylvania, Inc., 447 U.S. 102 (1980).................. 29

Epic Systems Corp. v. Lewis, ___ U.S. ___, 138

S. Ct. 1612 (2018) ............................................. 26

Ex Parte Collett, 337 U.S. 55 (1949) ......................... 27

Hawaii Wildlife Fund v. County of Maui, 886

F.3d 737 (2018) ......................................... passim

Kohl v. United States, 91 U.S. 367 (1875) .................. 7

League of Wilderness Defenders/Blue

Mountains Biodiversity Project v.

Forsgren, 309 F.3d 1181 (9th Cir. 2002).. 5, 16, 17

N. Cal. River Watch v. Mercer Fraser Co., No.

C-04-4620 SC, 2005 WL 2122052 (N.D.

Cal. Sept. 1, 2005)............................................. 24

Peconic Baykeeper, Inc. v. Suffolk County, 600

F.3d 180 (2d Cir. 2010) ............................. passim

Piney Run Preservation Association v. County

Commissioners of Carroll County,

Maryland, 268 F.3d 255 (4th Cir. 2001) .......... 19

Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir.

2002) .................................................................. 16

Rapanos v. United States, 547 U.S. 715 (2006)

(Nos. 04-1034, 04-1384) .......................... 8, 13, 21

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95 (2004) .................... 16, 29

Schwegmann Brothers v. Calvert Distillers

Corp., 341 U.S. 384 (1951) ............................... 26

Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers, 531

U.S. 159 (2002) ................................................. 29

United States v. Earth Sciences, Inc., 599 F.2d

368 (10th Cir. 1979) .................................... 16, 32

United States v. Esso Standard Oil Co. of

Puerto Rico, 375 F.2d 621 (3d Cir. 1967) .. passim

Upstate Forever v. Kinder Morgan Energy

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

2018), petition for cert. filed, (Aug. 28,

2018) (No. 18-268) .................................... passim

Virginia Uranium, Inc. v. Warren, ___U.S.___,

139 S. Ct. 1894 (2019) ........................................ 7

Waste Services of Decatur, LLC v. Decatur

County, Tennessee, 367 F.Supp.3d 792

(W.D. Tenn. 2019) ......................................... 2, 19

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

(2d Cir. 2005) .................................................... 22

STATUTES AND REGULATIONS

16 U.S.C. § 824 ............................................................ 7

33 U.S.C. § 407 .......................................................... 24

33 U.S.C. § 1251 ........................................................ 30

33 U.S.C. § 1329 .................................................. 17, 19

33 U.S.C. § 1362 ................................................ passim

33 U.S.C. § 1365 .................................................... 7, 10

42 U.S.C. § 300 .......................................................... 15

42 U.S.C. § 399 ............................................................ 3

118 Cong. Rec. 33,699 (1972) .................................... 28

118 Cong. Rec. 33,758-59 (1972) ..................... 5, 25, 29

Energy Policy Act of 2005 § 1221 ............................... 7

Haw. Admin. Code § 11-62-02 .................................. 12

Haw. Admin. Code § 11-62-36 .................................. 12

Proclamation No. 2505, 55 Stat. 1670 (Aug.

23, 1941) .............................................................. 6

Pub. L. No. 77-197, ch. 333, § 5 (1941) ....................... 3

Pub. L. No. 77-197, 55 Stat. 610 (1941) ................. 6, 7

S.C. Code Regs. § 61-56.100...................................... 11

S.C. Code Regs. § 61-56.301...................................... 11

S. Conf. Rep. No. 92-1236 (1972) .............................. 30

S. Rep. No. 95-370 (1977) .......................................... 30

Tenn. Code Ann. § 68-221-401 .................................. 12

Tenn. Code Ann. § 68-221-411 .................................. 12

Water Quality Act of 1987, Pub. L. No. 100-4,

§ 507, 101 Stat. 7 (1987) ..................................... 9

OTHER AUTHORITIES

Anita Wadhwani, Landfill Operator Tries To

Walk Away From Environmental

Disaster; Small Town Fights Back,

Nashville Tennessean (Apr. 15, 2019),

available at https://www.tennessean.

com/story/news/2019/04/15/decaturcounty-landfill-lawsuit-toxic-leachate/

3425243002/ (last visited July 12, 2019) ........... 9

Gerald E. Frug, The City as a Legal Concept,

93 Harv. L. Rev. 1057 (1980) ........................... 10

Gladwin Hill, The Polluted Potomac: Sewage

and Politics Create Acute Capital

Problem, N.Y. Times (July 12, 1970), at

https://www.nytimes.com/1970/07/12/arc

hives/the-polluted-potomac-sewage-andpolitics-create-acute-capital.html .................... 30

vii

Kinder Morgan, Plantation Pipe Line

Company (PPL), https://www.kinder

morgan.com/ pages/business/products

_pipelines/plantation.aspx (map of the

pipeline) (last visited July 2, 2019) .................... 6

Richard Briffault, Our Localism: Part II —

Localism and Legal Theory, 90 Colum. L.

Rev. 346 (1990) ............................................. 3, 10

South Carolina Department of Health and

Environmental Control “Overview—

Septic Tanks,” at

https://www.scdhec.gov/environment/you

r-home/ septic-tanks/overview- septictanks (last visited July 5, 2019) ................... 4, 12

South Carolina Forestry Commission, South

Carolina’s Best Management Practices

for Forestry, at 8, available at

https://www.state.sc.us/forest/bmp

manual.pdf ........................................................ 18

The Court Building, at https://www.supreme

court.gov/about/courtbuilding.pdf (last

visited July 5, 2019) ......................................... 10

U.S. EPA, Guidance Specifying Management

Measures for Sources of Nonpoint

Pollution in Coastal Waters, EPA 840-B92-002 (Jan. 1993) ............................................ 18

viii

U.S. EPA, Region 1, “A Brief Summary of the

History of NPDES,” at

https://www3.epa.gov/region1/npdes/

history.html (last visited June 14, 2019) ......... 24

Water Pollution Control Legislation—1971

(Proposed Amendments to Existing

Legislation), Hearing Before the

Committee on Public Works, House of

Representatives, 92nd Cong., 1st Sess.

(July 13, 1971) .................................................. 27

Webster’s Third New International Dictionary

of the English Language Unabridged

(1993) ............................................................ 4, 17

STATEMENT OF INTEREST OF AMICI1

The two localities listed as amici curiae represent

Southeastern, county governments in support of the

critical role that the Clean Water Act (“CWA” or the

“Act”) plays in helping localities foster economic

growth while promoting sustainable use of natural

resources within our communities.

Anderson County, South Carolina voices an acute

concern as it was the site of a 2014 pipeline rupture

that released over 369,000 gallons of gasoline. Much

of this gasoline traveled fewer than 1,000 feet—and

in some instances as little as 400 feet—through

groundwater and soil before entering two tributaries

of the Savannah River. This event triggered the

decision in Upstate Forever v. Kinder Morgan Energy

Partners, L.P., 887 F.3d 637 (4th Cir. 2018), petition

for cert. filed, (Aug. 28, 2018) (No. 18–268), in which

the Fourth Circuit held “in agreement with the

Second and Ninth Circuits that to qualify as a

discharge of a pollutant under the CWA, that

discharge need not be channeled by a point source

until it reaches navigable waters.” See 887 F.3d at

651.

Amici Curiae are authorized to submit this brief on behalf of

their respective counties pursuant to Supreme Court Rule 37.4.

Additionally, Respondents have filed a letter with the Clerk

indicating blanket consent to the filing of amicus briefs, and

Petitioner has given Amici Curiae written consent for the filing

of this brief by electronic mail sent on June 24, 2019. No

counsel for any party authored this brief in whole or in part,

and no person or entity other than above-named amici curiae

and their counsel made a monetary contribution intended to

fund its preparation or submission.

Decatur County, Tennessee is a small community

on the banks of the Tennessee River. The County

leverages its unique location to promote economic

development along the river, annually hosting the

Carl Perkins Bass Classic fishing tournament. The

County is also home to a municipal waste landfill

operated by a third party. The operator took the

risky step of accepting highly reactive industrial

aluminum smelting waste, which is now alleged to

be causing uncontrolled “point source” discharges of

toxic leachate into navigable waters. Having

collected fees for the industrial waste, the operator

now wants to walk away from the problem and foist

responsibility onto local taxpayers. The County and

the landfill operator are currently in litigation over

the site. See Waste Services of Decatur, LLC v.

Decatur County, Tennessee, 367 F.Supp.3d 792 (W.D.

Tenn. 2019). The operator has filed a motion to

dismiss, seeking to avoid CWA liability for

discharges that travel the short route from the

leachate collection system into Buck Branch Creek

via a few hundred feet of groundwater.

SUMMARY OF ARGUMENT

Local government amici seek to highlight for the

Court how applying the CWA as Congress drafted it

aids counties and plays a unique role in preserving

local authority. Amici support CWA enforcement in

cases such as this one to remain politically

accountable to our constituents and use the

important tool Congress put in place to prevent

environmental harm to navigable waters within our

jurisdictions.

Many sources of pollution are sited and permitted

pursuant to other federal statutes that allow for the

exercise of the power of eminent domain, see, e.g.,

Pub. L. No. 77-197, ch. 333, § 5 (1941) (authorizing

construction of petroleum pipeline at issue in

Upstate Forever), leaving localities with few options

to respond to community concerns. Amici recognize

that citizen-suit enforcement, as upheld by the U.S.

Court of Appeals for the Ninth Circuit, provides an

essential vehicle for community engagement in

environmental decision-making. Put simply, the

Court of Appeals’ decision helps preserve local

accountability by providing citizens and county

governments with access to a federal enforcement

process. See Richard Briffault, Our Localism: Part

II—Localism and Legal Theory, 90 COLUM. L. REV.

346, 393-95 (1990).

There is no replacement for the National

Pollutant Discharge Elimination System (“NPDES”)

when it comes to protecting navigable waters.

Federal provisions that relate to groundwater

contamination, e.g., the Safe Drinking Water Act, 42

U.S.C. § 399h-8, are not intended to address the

concerns at issue here. The pollution in Hawaii

Wildlife Fund is not contamination of groundwater

qua groundwater. Rather, it is the contamination of

navigable waters from a discrete point source where

pollution flows a short distance on or through

another medium. That medium may sometimes be

groundwater, but not always. See, e.g., Peconic

Baykeeper, Inc. v. Suffolk County, 600 F.3d 180, 188

(2d Cir. 2010) (air serving as intermediary between

point source discharge from pesticide spray nozzles

and navigable waters).

There is no possibility that application of the

CWA would require NPDES permits for 22 million

residential septic tanks across the country, as

Petitioner alleges. See Br. of Pet’r, at 47. As local

governments working day-in and day-out to address

homeowner concerns, we know that State-level

wastewater regulations already mandate that septic

tanks be constructed to prevent leachate from

reaching waterways. Well-maintained septic systems

do not cause “pollution of groundwater, wells, rivers,

and lakes.” See South Carolina Department of

Health and Environmental Control “Overview—

Septic

Tanks,”

https://www.scdhec.gov/environment/your-home/

septic-tanks/overview-septic-tanks (last visited July

5, 2019). Petitioner’s argument would transform the

Ninth Circuit’s “fairly traceable” analysis into an

“unfairly traceable” test.

Not only is enforcement of the CWA’s point

source protections good public policy, it is also

required by the text of the statute. Petitioner’s

argument that a point source discharge could avoid

regulation because of intermediate travel through

groundwater ignores the common definition of a

“source” as a “point of origin.” See WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED, at 2177 (1993). The

pollution at issue in Hawaii Wildlife Fund did not

originate in groundwater. Rather, the undeniable

“source” of the pollution is the collection of wells at

the Lahaina Wastewater Reclamation Facility.

The distinction between point and nonpoint

sources is not one of directness versus indirectness,

as Petitioner claims, but one of discreteness versus

diffuseness. Point sources require NPDES permits

when a discrete “well” can be identified as the

original “source” of the pollution. 33 U.S.C. §

1362(14). Nonpoint sources are exempt because

nonpoint pollution “arises in such a diffuse way, it is

very difficult to regulate through individual

permits.” League of Wilderness Defenders/Blue

Mountains Biodiversity Project v. Forsgren, 309 F.3d

1181, 1184 (9th Cir. 2002).

Pollution from nonpoint sources sometimes flows

directly into navigable waters—such as run-off from

a timber harvest adjacent to a river—but the

“directness” of that discharge to the waterbody does

not trigger NPDES requirements. Conversely, when

a discrete conveyance such as a well indirectly

contaminates navigable waters, that pollution

remains properly regulated as a point source

discharge under the CWA, just as it was before the

1972 amendments to the Federal Water Pollution

Control Act. See United States v. Esso Standard Oil

Co. of Puerto Rico, 375 F.2d 621, 623 (3d Cir. 1967).

The legislative history of the CWA supports this

straightforward reading of the statutory language.

See 118 Cong. Rec. 33,758-59 (1972) (statement of

Representative John Dingell, discussing Esso and

the term “discharge of a pollutant” in 33 U.S.C. §

1362(12)).

That is why neither the Ninth nor Fourth

Circuits have applied the CWA to regulate

groundwater whatsoever. Rather, their applications

of the CWA recognize that exempting indirect, point

source discharges from the NPDES program would

open the door to obvious gamesmanship. Instead of

running an outfall pipe directly to navigable waters,

an operator could simply bury its pipe a few feet

from the river’s edge and allow the discharge to flow

through soil and groundwater before reaching a

protected stream. Such an interpretation would

gravely hinder our ability as county governments to

aid our residents in alleviating the harms caused by

point source contamination.

ARGUMENT

I. Petitioner’s

Test

Limit

Jurisdiction Would Undermine

Government Autonomy.

CWA

Local

A fundamental concern that amici curiae have

with Petitioner’s argument is that it would

undermine local government authority and

autonomy. The 369,000-gallon spill of petroleum

products at issue in Upstate Forever highlights the

nature of this threat. Upstate Forever addresses a

discharge from a 3,180-mile interstate pipeline that

was sited under federal law and constructed through

application of the federal power of eminent domain.

See Pub. L. No. 77-197, 55 Stat. 610 (1941) (Congress

authorizing the “exercise of the right of eminent

domain” for construction of the pipeline);

Proclamation No. 2505, 55 Stat. 1670 (Aug. 23, 1941)

(executive action delineating the route of the

pipeline); Kinder Morgan, Plantation Pipe Line

Company (PPL), https://www.kindermorgan.com/

pages/business/products_pipelines/plantation.aspx

(map of the pipeline) (last visited July 2, 2019).

If Anderson County, South Carolina had

attempted to prohibit pipeline construction or

impose additional public-safety protections (e.g.,

ordinances addressing nominal pipe diameter or wall

thickness of the pipe), those local ordinances likely

would have been stricken as unlawful and

preempted by the federal statute declaring the

pipeline’s construction as necessary for national

defense. See Pub. L. No. 77-197, 55 Stat. 610 (1941);

Virginia Uranium, Inc. v. Warren, ___U.S.___, 139 S.

Ct. 1894, 1901 (Gorsuch, J., plurality opinion).

The state of affairs in Anderson County, South

Carolina is not unique. Indeed, there is a long

history of federal statutes allowing for the exercise of

eminent domain powers, see, e.g., Kohl v. United

States, 91 U.S. 367 (1875) (upholding use of eminent

domain pursuant to an Act of Congress for the

“acquisition of a site for a post-office in Cincinnati”);

Energy Policy Act of 2005 § 1221, 16 U.S.C. § 824p

(allowing permit holders for certain power line

projects to “acquire the right-of-way by the exercise

of the right of eminent domain”), leaving localities

with limited options to respond to community

concerns.

The permitting obligations and citizen-suit

provisions of the CWA provide important

mechanisms that preserve local opportunities to

address unpermitted discharges that contaminate

our waters. The CWA’s citizen-suit provision

expressly allows municipalities, including counties,

to “commence a civil action” to enforce point source

requirements. See 33 U.S.C. § 1365(a), (g); 33 U.S.C.

§ 1362(4), (5). Thus, local governments have dual

responsibilities under the Act.

They may be

required to obtain permits when they are the

discharging entity, and they may be called upon to

initiate enforcement when

communities are adversely

unpermitted discharge.

they and their

affected by an

In Rapanos, the plurality opinion by Justice

Scalia observed:

[I]t makes no difference to the statute’s

stated purpose of preserving States’

‘responsibilities and rights [under the

CWA],’ § 1251(b), that some States wish

to unburden themselves of them.

Legislative and executive officers of the

States may be content to leave

‘responsibilit[y]’ with the [U.S. Army]

Corps [of Engineers] because it is

attractive to shift to another entity

controversial

decisions

disputed

between politically powerful, rival

interests. That, however, is not what

the statute provides.

Rapanos, 547 U.S. 715, 737 n.8 (emphasis in

original). In the present case, of course, it is

Petitioner that wishes to “unburden” itself of its

CWA obligations as a local government by

eviscerating an avenue for citizen-suit enforcement

brought by residents of the County of Maui.

Local government amici are responsible for

protecting community members and providing

essential services, including drinking water, sewage

treatment, and stormwater management.

This

responsibility necessarily involves our own

compliance with the CWA. Erasing CWA protections

against unpermitted, point source discharges—

simply because the source is not placed directly into

a navigable waterway—would allow private

dischargers to skirt the text of the CWA and harm

our residents.

Indeed, that is the precise situation faced by

Decatur County, Tennessee, where a North

Carolina-based landfill operator seeks to avoid

liability for water contamination it is alleged to have

caused, leaving local residents holding the bag. See

Water Quality Act of 1987, Pub.L. No. 100–4, § 507,

101 Stat. 7, 78 (1987) (“For purposes of the Federal

Water Pollution Control Act, the term ‘point source’

includes a landfill leachate collection system.”). To

be clear, it is not just the environmental threat that

concerns Decatur County officials; it is the threat to

taxpayers who face the prospect of a costly cleanup

that would overwhelm the tax base in this poor,

rural community. See Anita Wadhwani, Landfill

Operator Tries To Walk Away From Environmental

Disaster; Small Town Fights Back, NASHVILLE

TENNESSEAN (Apr. 15, 2019), available at

https://www.tennessean.com/story/news/2019/04/15/d

ecatur-county-landfill-lawsuit-toxic-leachate/

3425243002/ (last visited July 12, 2019).

In Upstate Forever, Anderson County, South

Carolina filed an amicus brief in support of its

residents, observing that the discharge of “an

estimated 370,000 gallons” of petroleum from a

Kinder Morgan pipeline “was discovered by local

citizens” and that the release flowed a short distance

from the pipe to two creeks, both of which were

within the Savannah River Basin. See Br. of

Anderson County, South Carolina as Amicus Curiae

in Support of Plaintiffs-Appellants Upstate Forever

and Savannah Riverkeeper, at 4, Case No. 17-1640,

Doc: 23-1 (filed July 19, 2017).

The distance from the point of discharge to

Cupboard Creek (a tributary feeding the Savannah

River), was as little as 400 feet, or roughly the length

of the United States Supreme Court Building. See

The Court Building, at

https://www.supreme

court.gov/about/courtbuilding.pdf (last visited July 5,

2019). Under Petitioner’s theory of the CWA, even

this undeniable pollution of a navigable water by a

point source would be exempt from the Act’s

permitting requirements because of the intervening

400 feet. That reading of the CWA is unsupported

by the text of the statute and would allow an easy

opportunity for gamesmanship by polluters.

In situations such as these, where local water

quality is harmed by point source pollution,

municipalities have the statutorily guaranteed

authority to respond. See 33 U.S.C. §§ 1362, 1365.

County governments like amici may even be said to

have a responsibility to respond in order to address

their constituents’ local concerns. See Richard

Briffault, Our Localism: Part II—Localism and

Legal Theory, 90 COLUM. L. REV. 346, 393-95 (1990)

(discussing Gerald E. Frug, The City as a Legal

Concept, 93 HARV. L. REV. 1057 (1980)).

attempting to rewrite the text of the Act, Petitioner

would remove a vital tool that Congress crafted for

local government amici to protect our own

communities and the Nation’s navigable waters.

II. Petitioner Grossly Misreads the Ninth

Circuit’s Decision to Wrongly Assert It

Would Require Expanded Regulation of

Septic Tanks.

Petitioner alleges that under the CWA as applied

by the Ninth Circuit, individual homeowners would

be subject to point source permitting across “22

million homes in the country.” See Br. of Pet’r, at 47.

This claim is as absurd as it sounds. Petitioner’s

argument overlooks that State regulations have

long-controlled residential septic tanks in order to

prevent point source discharges into navigable

waters. State-compliant septic tanks, therefore,

should not violate the Act’s NPDES requirements.

In South Carolina, regulations define “[s]afe

treatment and disposal of domestic wastewater” to

require that any septic tank releases “will not violate

federal and state laws or regulations governing

water pollution” and “will not pollute or contaminate

any waters of the state.” See S.C. Code Regs. § R. 6156.100. The South Carolina regulations further

mandate, “No septic tank effluent or domestic

wastewater or sewage shall be discharged to the

surface of the ground or into any stream or body of

water in South Carolina without an appropriate

permit from the Department.” See S.C. Code Regs. §

61-56.301. Similarly, Tennessee law requires that

residential septic tanks “shall be so located,

constructed and maintained that wastes discharged

to or from such systems … (3) Do not pollute or

contaminate surface or ground water; [and] … (6)

Will not violate any other laws or regulations

governing water pollution or sewage disposal.” See

Tenn. Code Ann. § 68-221-401.

As South Carolina’s regulators have explained,

“[w]ell designed, well-maintained septic tank

systems” do not cause “pollution of groundwater,

wells, rivers, and lakes.” See South Carolina

Department of Health and Environmental Control

“Overview—Septic Tanks,” at https://www.scdhec.gov

/environment/your-home/septic-tanks/overview

septic-tanks (last visited July 5, 2019). The

obligation of the rare, derelict source to comply with

the CWA when it threatens navigable waters is not

new or pervasive. See Tenn. Code Ann. § 68-221-411

(“where a provision of this part is found to be in

conflict with a provision of any private or public act

or local ordinances or code existing May 4, 1973, the

provision which establishes the higher standard for

the promotion and protection of the health and

safety of the people shall prevail”).

Not surprisingly, Hawaii’s regulations also

require that wastewater must “not contaminate or

pollute any drinking water or potential drinking

water supply, or the waters of any beaches, shores,

ponds, lakes, streams, groundwater, or shellfish

growing waters,” and further, that wastewater

systems will be operated in a way that is “consistent

with the State’s administration of the National

Pollutant Discharge Elimination System” for point

source discharges. See Haw. Admin. Code § 11-62-02.

To meet these standards, Hawaii regulations

prohibit the construction of any new cesspools, which

might fail to prevent releases of sewage into

navigable waters. See Haw. Admin. Code § 11-62-36.

As county governments, amici depend on State

standards to ensure septic systems operate properly

in our communities.

We have no interest in

duplicating protections, but we do have an interest

in protecting communities from defective or

noncompliant septic systems. The takeaway is that

well-maintained septic tanks should not release

pollutants into the navigable waters, and poorly

designed or neglected systems should be and already

are subject to regulation and remediation under both

the CWA and State laws—with no problems arising

from such common-sense requirements.

Petitioner’s argument about “traceability,” Br. of

Pet’r, at 31, attempts to read the word “fairly” out of

the Ninth Circuit’s analysis. It calls to mind a

comment during oral argument in Rapanos from the

Chief Justice:

The … notion in SWANCC of a

significant nexus suggests that there

are some bodies of water or puddles

that are going to have a nexus, but it’s

not going to be significant enough. We

didn’t just say any nexus. It said

significant nexus.

See Transcript of Oral Argument at 50, Rapanos v.

United States, 547 U.S. 715 (2006) (Nos. 04-1034, 041384).

By the same token, the Ninth Circuit did not say

“traceable;” it said “fairly traceable.” Analyzing

whether a discharge is “fairly traceable” to the point

source necessarily implies that there will be some

additions of pollutants that have such an attenuated

connection to any point source that, just as with

common-law proximate cause analysis, they would

not be considered fairly traceable or added via an

identifiably “direct hydrological connection.” Upstate

Forever, 887 F.3d at 651. As a result, a court would

not deem them to be “from” the point source and

they would not be subject to the Act’s NPDES

requirements. Petitioner’s misreading of the Court of

Appeals would subject homeowners not to a “fairly

traceable” analysis, but to an “unfairly traceable”

test.

III. Potential

Liability

Under

Other

Statutes Does Not Allow Petitioner to

Skirt Its NPDES Obligations.

Petitioner misapprehends the States’ nonpoint

source programs, incorrectly asserting that the

County of Maui’s pollution of navigable waters from

discrete wells would be better addressed through

another statutory regime. See Br. of Pet’r, at 23.

Kinder Morgan, as amicus curiae in support of

Petitioner, makes a similar error in alleging that

eviscerating the point source program “will not

create any loophole for creative polluters, as there is

simply no regulatory gap in need of filling.” See Pet.

for Writ of Cert. at 28, Upstate Forever (No. 18-268).

These assurances are the proverbial dog that did not

bark. If other statutes impose equally rigorous

protections, then why bother to challenge these

supposedly duplicative CWA obligations? The reality

is that no law outside of the NPDES program is

designed to address what is undeniably a discharge

from a point source that indirectly contaminates

navigable waters.

Without enforcement of the

CWA’s longstanding prohibitions against pollution

from individual, point source dischargers, this

protection will be drastically weakened.

Petitioner’s citation to the Safe Drinking Water

Act (“SDWA”), ignores that while the SDWA helps

protect groundwater, it does not substitute for the

CWA’s protection of navigable waters. See 42 U.S.C.

§ 300h-8 (“to ensure the coordinated and

comprehensive

protection

ground

water

resources”). Primarily, the SDWA addresses the

need for post-contamination treatment of water, in

contrast to the CWA’s emphasis on the prevention of

contamination at the outset. See 42 U.S.C. § 300g1(b)(8) (requiring EPA to “promulgate national

primary drinking water regulations requiring

disinfection as a treatment technique for all public

water systems”). As local governments, we have

significant experience navigating federal and State

environmental laws, and recognize that the SDWA

addresses groundwater as the end point in the

pollution process rather than as a short medium

between a point source and a navigable waterway.

Critically, the SDWA aids in requiring treatment of

contaminated water for public use, but it is not

directed at preventing the pollution of navigable

waters. Only the CWA does that.

Furthermore, the fact that discharges from wells

in Maui, a pipe near Anderson, South Carolina, or a

leachate collection system in Decatur County,

Tennessee might trigger violations of other

environmental, public health, and safety laws does

not exempt these sources of pollution from CWA

liability under the plain language of the statute.

Petitioner has not pointed to any statutory language

that would exempt polluters from CWA compliance if

they were also in violation of other laws. In fact, this

Court has acknowledged that a complex pollution

problem might be subject to both point source and

nonpoint source regulation. See S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95,

106-07 (2004) (“We note … that [33 U.S.C.] §

1314(f)(2)(F) does not explicitly exempt nonpoint

pollution sources from the NPDES program if they

also fall within the ‘point source’ definition.”)

(emphasis in original). See also United States v.

Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.

1979) (“Mining and the other categories listed in

§1314(f)(2) may involve discharges from both point

and nonpoint sources, and those from point sources

are subject to regulation.”).

IV. The Point/Nonpoint Source Distinction

Is Not One of Direct Versus Indirect

Discharges, But One of Discrete

Conveyances Versus Diffuse Sources.

Under the CWA, point sources are “any

discernible, confined and discrete conveyance,

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

tunnel, conduit, [or] well …” 33 U.S.C. § 1362(14).

Nonpoint sources, in contrast, are diffuse; “sediment

run-off from timber harvesting, for example, derives

from a nonpoint source.” Pronsolino v. Nastri, 291

F.3d 1123, 1126 (9th Cir. 2002). See also League of

Wilderness Defenders/Blue Mountains Biodiversity

Project v. Forsgren, 309 F.3d 1181, 1184 (9th Cir.

2002) (Nonpoint source pollution “is widely

understood to be the type of pollution that arises

from many dispersed activities over large areas, and

is not traceable to any single discrete source.”).

As the Ninth Circuit further explained in

Forsgren, “Because [nonpoint pollution] arises in

such a diffuse way, it is very difficult to regulate

through individual permits.” Id. That is the critical,

distinguishing characteristic between point and

nonpoint sources—and a distinction that Petitioner

overlooks in its citation to Forsgren. See Br. of Pet’r,

at 26.

Point sources require NPDES permits

because a discrete “pipe” or “well” can be identified

and controlled as the original “source” of the

pollution. 33 U.S.C. § 1362(14). Nonpoint sources

are exempt because of the pragmatic impossibility of

imposing controls on an ill-defined source that did

not originate from any discrete conveyance.

When deciding whether pollution in a given

situation is coming from a point or nonpoint

“source,” the question is not one of directness versus

indirectness, as Petitioner argues, but rather one of

discreteness versus diffuseness. The very definition

of the word “source” confirms this plain reading of

the CWA text. Merriam-Webster includes in its

definition that a “source” is “a point of origin.” See

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

OF THE ENGLISH LANGUAGE UNABRIDGED, at 2177

(1993). It makes no logical sense to think of the

“source” of a discharge as being the last thing the

pollution touches before it enters navigable waters.

The “source” by common definition is where the

pollution begins.

Thus, control measures for nonpoint sources are

typically referred to as “best management practices”

(“BMPs”) that can generally be applied to a farmer’s

fields or other sources lacking a discrete point of

origin. See 33 U.S.C. § 1329(a)(1)(C). § 1329(b)(2)(B).

EPA itself has long recognized that nonpoint sources

and control methods are inherently diffuse, e.g.,

“reduced nutrient and pesticide application” on

agricultural fields or “timing chemical applications

or logging activities based on weather forecasts or

seasonal weather patterns” to reduce run-off. See

U.S. EPA, Guidance Specifying Management

Measures for Sources of Nonpoint Pollution in

Coastal Waters, EPA 840-B-92-002, at 1-12 (Jan.

1993).

Similarly, South Carolina has adopted “best

management practices” for forestry that recognize

diffuse harms to water quality. These practices

establish “streamside management zones” to reduce

nonpoint source pollution and emphasize measures

that address widely dispersed pollution problems,

such as erosion from timber harvests or other land

use activities.

See South Carolina Forestry

Commission, South Carolina’s Best Management

Practices for Forestry, at 8, available at

https://www.state.sc.us/forest/bmp manual.pdf.

In many of these instances, the pollution from the

nonpoint source flows directly into a navigable

water, but the “directness” of the pollution to the

waterbody does not trigger NPDES permitting

requirements. See, e.g., U.S. EPA, Guidance

Specifying Management Measures for Sources of

Nonpoint Pollution in Coastal Waters, EPA 840-B92-002, at 2-4 (Jan. 1993) (including Figure 2-1,

which illustrates “Direct Runoff” from agricultural

land to a protected stream). Conversely, when a

discrete conveyance such as a well or a pipe

indirectly contaminates navigable waters, that

pollution remains properly regulated as a point

source discharge under the CWA, in much the same

way it has been regulated since before the 1972

amendments to the Federal Water Pollution Control

Act were adopted. See United States v. Esso

Standard Oil Co. of Puerto Rico, 375 F.2d 621, 623

(3d Cir. 1967).

Nonpoint programs would fail to remedy the

significant pollution of navigable waters at issue in

Hawaii Wildlife Fund, Upstate Forever, and Waste

Services of Decatur, LLC. As local governments, we

rely on NPDES permitting, which affords

stakeholders the opportunity to ensure that all

pollutants released from a point source are

accounted for in setting permit limits, and grants

permit applicants assurances that “the permit will

‘shield’ its holder from CWA liability” so long as it

remains in compliance. See Piney Run Preservation

Association v. County Commissioners of Carroll

County, Maryland, 268 F.3d 255, 266 (4th Cir. 2001).

Indeed, we rely on this regulatory scheme since local

governments are often the permit holders

themselves. See id.

Nonpoint programs lack the requisite specificity

of the NPDES permitting program. With regard to

the release of hundreds of thousands of gallons of

gasoline from a pipe just 400 feet from a tributary of

the Savannah River, the problem for Anderson

County, South Carolina is not one of identifying

“best management practices” for a myriad of

contributing factors. See 33 U.S.C. § 1329. Rather,

the problem is one of enforcing remediation under

the CWA from one unpermitted discharge. Upstate

Forever, 887 F.3d at 643.

In sum, nonpoint pollution programs do not

require the same type of source-specific permitting

as point source discharges for the obvious reason

that nonpoint pollution stems from many diffuse and

disparate causes that are not “fairly traceable” to a

single point source. That is not the case here. See

Hawaii Wildlife Fund, 886 F.3d at 749. The

underground injection wells at the Lahaina

Wastewater Reclamation Facility—like the ruptured

pipeline in Upstate Forever or the failing leachate

collection system in Decatur County, Tennessee—are

plainly identifiable and appropriately subject to

regulation under the CWA’s point source safeguards.

V. The Ninth and Fourth Circuits’ Rulings

Do Not Regulate Groundwater Qua

Groundwater.

Contrary to Petitioner’s claims, neither the

Ninth, Fourth, or Second Circuits have proposed to

regulate groundwater whatsoever. See Br. for Pet’r,

at 5-6 (claiming that “because the groundwater is

not a point source, the Ninth Circuit was wrong…”).

The Fourth Circuit held that the CWA regulates a

point source—a pipeline carrying diesel fuel and

gasoline—that has polluted navigable surface waters

of the United States. See Upstate Forever, 887 F.3d

at 651. The Fourth Circuit’s use of EPA’s phrase

“direct hydrological connection” does not exert

authority over groundwater but simply describes

how pollutants flow “from” the originating point

source “to” navigable waters.

Similarly, the Ninth Circuit held that the Act

regulates an undisputed point source—the County of

Maui’s underground injection wells—when a

discharge from that point source flows a short

distance on or through another medium before

reaching navigable waters. So long as navigable

waters’ contamination is “fairly traceable” to the

point source then the Act applies, and movement via

groundwater does not break the chain of causation

or serve as a supervening event. A clear indication

that the Ninth Circuit’s holding does not amount to

regulation of groundwater is evidenced by the fact

that the Ninth Circuit did not even evaluate whether

pollution remained in the groundwater itself. Hawaii

Wildlife Fund, 886 F.3d at 746 n.2 (“We assume

without deciding the groundwater here is neither a

point source nor a navigable water”).

Each of the Court of Appeals’ rulings cite this

Court’s plurality opinion in Rapanos, and explicitly

rely upon it. See Hawaii Wildlife Fund, 886 F.3d at

748 (“Justice Scalia recognized … that ‘from the time

of the CWA’s enactment, lower courts have held that

the discharge into intermittent channels of any

pollutant that naturally washes downstream likely

violates § 1311(a), even if the pollutants discharged

from a point source do not emit “directly into”

covered waters, but pass “through conveyances” in

between.’”); Upstate Forever, 887 F.3d at 649-50

(“[W]hen analyzing the kinds of connected waters

that might fall under the CWA, Justice Scalia

observed that ‘[t]he Act does not forbid the ‘addition

of any pollutant directly to navigable waters from

any point source,’ but rather the ‘addition of any

pollutant to navigable waters.’”) (emphasis in

original) (internal citations omitted).

The Fourth and Ninth Circuit holdings are

buttressed by the Second Circuit, which concluded

that helicopters spraying pesticides, which then

indirectly travel through air to navigable waters,

must be regulated as point source discharges. See

Peconic Baykeeper, 600 F.3d at 188 (“Here, the spray

apparatus was attached to trucks and helicopters,

and was the source of the discharge. The pesticides

were discharged ‘from’ the source, and not from the

air.”). See also Waterkeeper All., Inc. v. EPA, 399

F.3d 486, 510-11 (2d Cir. 2005) (upholding

regulation of point source discharges from Confined

Animal Feeding Operations without requiring

wastewater to “be separately channelized” all the

way to navigable waters because that would “impose

a requirement not contemplated by the Act: that

pollutants be channelized not once but twice before

the EPA can regulate them”).

Critically, the Second Circuit’s decision in Peconic

Baykeeper underscores a fatal flaw in Petitioner’s

argument. Exempting every indirect point source

discharge from CWA jurisdiction—even if it migrates

through just one foot of groundwater on its way to

navigable waters—would open the door to obvious

gamesmanship and a hollowing-out of CWA

protections. In Peconic Baykeeper, the Court of

Appeals reversed a district court, which had

“reasoned that because the trucks and helicopters

discharged pesticides into the air, any discharge was

indirect, and thus not from a point source.” 600 F.3d

at 188 (emphasis added). That is, the district court

erred in following the same rationale urged by

Petitioner in one version2 of its proffered test. See

Br. of Pet’r, at 27-28.

2 Petitioner seems to acknowledge that the implications of its

“direct into” test are unreasonable, attempting to carve out

Under Petitioner’s approach, the path for

industries seeking to avoid NPDES permitting would

be straightforward. Instead of running a pipe

directly to navigable waters, an operator could

simply bury its pipe just a few feet from the river’s

edge and allow the discharge to flow through soil

and groundwater before reaching a protected stream.

Alternatively, an operator could discharge the outfall

via a spray applicator set back from the river and

allow polluted mist to permeate the land before

reaching a waterway. In either case, the air, land,

soil, or groundwater would serve as an intervening

medium and break the direct chain between the

point source discharge and navigable water. Nothing

in the 1972 amendments to the Act would authorize

the creation, nearly fifty years later, of this new

“escape hatch” for discharging actors.

Indeed, Petitioner’s argument would carve out an

exemption from CWA responsibilities for certain

classes of “fairly traceable” point source discharges,

creating a perverse incentive for the worst operators.

No NPDES permit would be required, despite the

obvious fact that the pollutants from the point

source were the “source” of contamination to

navigable waters that Congress explicitly sought to

exceptions to it. See Br. of Pet’r, at 43 (pollution not delivered

directly to a navigable water by a “conveyance (e.g., there is air

between a pipe and the river below)” is still a point source

discharge “and an NPDES permit is required.”). Petitioner’s

concession here raises a question as to whether “air” is the only

permissible intervening medium. What about four inches—or

four hundred feet—of real property between the end of a pipe

and a protected water body? Petitioner’s flow chart provides no

means for making these determinations. Thankfully, the text of

the CWA does. See Upstate Forever, 887 F.3d at 642-43.

protect. See N. Cal. River Watch v. Mercer Fraser

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

Cal. Sept. 1, 2005) (Conti, J) (“[I]t would hardly

make sense for the CWA to encompass a polluter

who discharges pollutants via a pipe running from

the factory directly to the riverbank, but not a

polluter who dumps the same pollutants into a manmade settling basin some distance short of the river

and then allows the pollutants to seep into the river

via groundwater.”).

A further deficiency in Petitioner’s interpretation

is evidenced in a decision from the U.S. Court of

Appeals for the Third Circuit, issued just a few years

before the CWA was enacted. See United States v.

Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621

(3d Cir. 1967). There, the Court of Appeals evaluated

liability under § 13 of the Rivers and Harbors Act, 33

U.S.C. § 407, which made it unlawful to “discharge

… any refuse matter of any kind … into any

navigable water of the United States ….” 375 F.2d at

622. The provision is the predecessor to today’s

NPDES statute. See U.S. EPA, Region 1, “A Brief

Summary of the History of NPDES,” at

https://www3.epa.gov/region1/npdes/

history.html

(last visited June 14, 2019).

Esso had argued that “the remoteness of its

activities from the shoreline isolate[d] it from

liability under the Act,” but the court found that

indirect discharges would logically be covered as a

matter of common sense: “[T]hough Esso did not run

a pipe to the water’s edge and discharge petroleum

products directly into the sea, Esso’s discharge of the

oil was in such close proximity to the sea that the oil

flowed there by gravity alone.” 374 F.2d at 623.

Nowhere did the court reason that a finding of

liability under the Rivers and Harbors Act would

somehow constitute a new land-use “regulation” of

the short distance of real property over which the oil

flowed.

The CWA’s text requires the same result. See 118

Cong. Rec. 33,758-59 (1972) (statement of Rep.

Dingell discussing Esso). That point source pollution

travels through groundwater on its way to navigable

waters in no way requires “regulation” of

groundwater under the NPDES program. Two

hypotheticals outside the realm of environmental

law show the clear error in Petitioner’s logic. An

individual transporting illegal narcotics from North

Carolina to South Carolina can be prosecuted for

commission of a federal crime even if Drug

Enforcement Administration agents apprehend him

on a local road far from major interstates. His use of

a municipal thoroughfare would not negate the

federal crime, nor would it constitute a “regulation”

of a town or its local roads. Similarly, a person who

uses a gun to kill someone is not absolved just

because the bullet ricochets off a wall before arriving

at its target. The firearm remains the “source” of the

bullet, and the harm it causes remains “fairly

traceable” to the assailant. Prosecution would not

involve “regulation” of the wall.

By the same token, Petitioner wholly misses the

point when it alleges that “groundwater is not a

point source,” Br. for Pet’r, at 5, since the point

source discharge emanates from the injection wells,

not from groundwater—indeed, groundwater is not a

“source” at all. The analyses in Hawaii Wildlife

Fund, Upstate Forever, and Peconic Baykeeper are

driven by the close connection between the point

source discharge and the protected waterbody, not

by the intervening medium the pollution might flow

on or through. Hawaii Wildlife Fund, 886 F.3d at

749 (analyzing whether the pollution is “fairly

traceable” to the point source); Upstate Forever, 887

F.3d at 651 (analyzing whether there is a “direct

hydrological connection” through groundwater

between the pipe and polluted navigable waterway);

Peconic Baykeeper, 600 F.3d at 188 (“The pesticides

were discharged ‘from’ the source, and not from the

air.”). The same is true for the analysis in Esso

Standard. Esso Standard Oil Co. of Puerto Rico, 375

F.2d at 623 (“It seems clear to us that the first clause

of § 13 does reach ‘indirect’ deposits of refuse in

navigable water.”).

In each of these cases, whether groundwater, soil,

or air remained contaminated after pollution passed

through it was irrelevant for purposes of CWA

jurisdiction because those intermediate areas were

not what was being regulated.

VI. Legislative History, to the Extent

Relevant, Demonstrates Congressional

Intent to Regulate the Point Source

Pollution Problems at Issue Here.

As this Court has affirmed, “legislative history is

not the law. ‘It is the business of Congress to sum up

its own debates in its legislation,’ and once it enacts

a statute ‘[w]e do not inquire what the legislature

meant; we ask only what the statute means.’” Epic

Systems Corp. v. Lewis, ___ U.S. ___, 138 S. Ct. 1612,

1631 (2018) (quoting Schwegmann Brothers v.

Calvert Distillers Corp., 341 U.S. 384, 396 (1951)

(Jackson, J., concurring)); Ex Parte Collett, 337 U.S.

55, 61 (1949) (“There is no need to refer to the

legislative history where the statutory language is

clear.”).

Not only has Petitioner attempted to inject

legislative history to obfuscate the plain language of

the statute, it presents the history wrongly,

misreading a statement by an unelected official,

then-EPA Administrator William Ruckelshaus. The

problem that Mr. Ruckelshaus sought to address was

a concern about hard-to-trace pollutants that might

permeate groundwater. He explained:

We would have no desire, Mr.

Chairman, under the program to

interfere with the existing State

program that was adequately protecting

water quality. The only reason for the

request for Federal authority over

ground waters was to assure that we

have control over the water table in such

a way as to insure that our authority

over interstate and navigable streams

cannot be circumvented, so we can

obtain water quality by maintaining a

control over all the sources of pollution,

be they discharged directly into any

stream or through the ground water

table.

See Water Pollution Control Legislation—1971

(Proposed Amendments to Existing Legislation),

Hearing Before the Committee on Public Works,

House of Representatives, 92nd Cong., 1st Sess. (July

13, 1971), at 230 (emphasis added).

That is, EPA had sought “control over the water

table” and “all sources of pollution” affecting the

water table, which would be diffused throughout

groundwater and not fairly traceable back to one

specific point source. Mr. Ruckelshaus was not

evaluating the situation at issue in Hawaii Wildlife

Fund, of a point source polluting a navigable

waterway through a groundwater conduit. Rather,

his suggestion was for the regulation of groundwater

itself—in order to grant the U.S. EPA “control over

the water table.” See id. at 230. Petitioner

misapprehends the legislative history of the CWA,

insisting that Mr. Ruckelshaus’s request for direct

regulation of groundwater qua groundwater is

dispositive. It is not.

Importantly, Senator Edmund Muskie, a primary

author of the Act, referenced both the House and

Senate versions of the CWA and observed that they

included “in the definition of ‘discharge’ . . . direct

and indirect discharges into the navigable waters.”

118 Cong. Rec. 33,699 (1972) (emphasis added).

Even more, the clearest statement comes from

Representative John Dingell, who commented:

It is quite clear that section 502(12) of

the bill [33 U.S.C. § 1362(12)], in

defining the term ‘discharge of a

pollutant,’ does not in any way

contemplate that the discharge be

directly from the point source to the

waterway. The situation is analogous to

the court’s holding in several cases,

including United States v. Esso

Standard Oil Company of Puerto Rico,

375 F.2d 621 (CA 3, 1967), where a

discharge from a shore facility flowed

‘indirectly,’ that is by force of gravity

over land, to a waterway.

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

Petitioner also references a statement and

proposed amendment by Representative Leslie

Aspin, see Br. of Pet’r, at 40, yet Rep. Aspin’s

statement cannot overcome the plain language of the

CWA or override clearly worded statements from

Rep. Dingell and Sen. Muskie, as “ordinarily even

the contemporaneous remarks of a single legislator

who sponsors a bill are not controlling in analyzing

legislative history.” See Consumer Product Safety

Commission v. GTE Sylvania, Inc., 447 U.S. 102, 118

(1980).

Petitioner’s argument equates to an assertion

that pollutants that come into contact with any

amount of groundwater en route to navigable waters

can never be implicated in NPDES permitting. See

Br. of Pet’r, at 23-25. This approach would require a

patently illogical restriction of the CWA, because the

text contains no such exemption. See S. Fla. Water

Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S.

95, 106-07 (2004) (“§ 1314(f)(2)(F) does not explicitly

exempt nonpoint pollution sources from the NPDES

program if they also fall within the ‘point source’

definition.”) (emphasis in original).

Petitioner’s misreading of the legislative history

stems from its failure to consider the context at the

time of Mr. Ruckelshaus’s testimony. The story of

Cleveland, Ohio’s Cuyahoga River catching fire

because of untreated, industrial pollutants coating

the surface of the waterway is well known, see Solid

Waste Agency of Northern Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 159, 174-75 (2002)

(Stevens, J., dissenting), but it was not an isolated

incident. In the early 1970s, the Potomac River in

Washington, D.C. was foul-smelling, unswimmable,

and unfishable as it flowed past the Lincoln and

Jefferson Memorials. As the N.Y. TIMES reported,

“The heat of summer is enveloping the nation’s

capital, and with it has come the annual resurgence

of a problem residents have come increasingly to

dread: a stomach-turning miasma rising from the

Potomac River.” Gladwin Hill, The Polluted Potomac:

Sewage and Politics Create Acute Capital Problem,

N.Y.

TIMES

(July

12,

1970),

https://www.nytimes.com/1970/07/12/archives/thepolluted-potomac-sewage-and-politics-create-acutecapital.html. The TIMES cited a federal government

report that documented how “sludge deposits have

blanketed fish spawning grounds,” leading to a

release of “obnoxious odors when uncovered by ebb

tide.” Id.

Mindful of calamities such as these, Congress

charted an ambitious goal for the CWA, “to restore

and maintain the chemical, physical, and biological

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

The Senate Conference Report recorded that the

CWA is to “be given the broadest possible

constitutional interpretation.” S. Conf. Rep. No. 921236, at 144 (1972); see also S. Rep. No. 95-370, at 75

(1977)

(the

Act

“exercise[s]

comprehensive

jurisdiction over the Nation’s waters to control

pollution to the fullest constitutional extent”).

The Ninth and Fourth Circuits’ analyses are

squarely consistent with this legislative history and

the statutory language. Under the plain text of the

statute, contamination of a navigable water is only

regulated under the NPDES program if the pollutant

is “from” a point source – that is, if it is attributable

or “fairly traceable” to one, specific point source, or,

put another way, whether it is added to navigable

waters via an identifiable, “direct hydrological

connection” between that point source and navigable

waters. See Hawaii Wildlife Fund, 886 F.3d at 749;

Upstate Forever, 887 F.3d at 651. In at least some

instances, this was already the law of the land under

the Federal Water Pollution Control Act before the

1972 amendments.

See United States v. Esso

Standard Oil Co. of Puerto Rico, 375 F.2d at 623.

Pollution that permeates groundwater from

multiple sources—but that cannot be confirmed to

have come from a defined point source—is not

covered. That diffuse pollution problem is the one

that Mr. Ruckelshaus sought unsuccessfully to

address.

Mr.

Ruckelshaus’s

legislative

disappointment, however, cannot possibly be read to

allow regulated entities to dodge liability here,

where the pollution problems are acute, concrete,

and unquestionably added “from” a specific,

statutorily-identified point source—i.e., a “well”. See

33 U.S.C. § 1362(14). A “well,” of course, is as an

underground structure, and discharges from one

commonly occur into groundwater before migrating

to navigable waters. See Br. for Respondents Hawaii

Wildlife Fund, et al., at 22 (filed July 12, 2019). The

U.S. Court of Appeals for the Tenth Circuit, in a case

decided a few years after the CWA’s enactment,

spoke on this very question, finding a “point source”

wherever a pollution problem originates from an

acute, discrete “point”:

The legislative history indicates to us

Congress was classifying nonpoint

source pollution as disparate runoff

caused primarily by rainfall around

activities that employ or cause

pollutants. … We believe it contravenes

the intent of [the CWA] and the

structure of the statute to exempt from

regulation any activity that emits

pollution from an identifiable point.

United States v. Earth Sciences, Inc., 599 F.2d 368,

373 (10th Cir. 1979) (emphasis added).

A point source must obtain an NPDES permit if it

is proven that a discrete discharge is contaminating

navigable waters. See Hawaii Wildlife Fund, 886

F.3d at 749; Upstate Forever, 887 F.3d at 651;

Peconic Baykeeper, 600 F.3d at 188. Such proof has

been amply documented here. See Hawaii Wildlife

Fund, 886 F.3d at 742-43.

CONCLUSION

In Hawaii Wildlife Fund, point source discharges

have translated into as much as 3,456 gallons of

polluted effluent entering the Pacific Ocean per

meter of coastline per day. 886 F.3d at 742. In

Upstate Forever, the ruptured pipeline released

369,000 gallons of gasoline just a short distance (400

feet and 1,000 feet) from two tributaries of the

Savannah River. 887 F.3d at 643. In Decatur

County, Tennessee, a leachate collection system

maintained by a single operator continues to pose a

public health threat to the community and an

environmental threat to the Tennessee River.

In all of these cases, citizen-suit enforcement of

the CWA has demanded that local governments be

accountable to their constituencies, and the Act has

provided municipalities, as defined at 33 U.S.C. §

1362(4), with the authority to address pollution

problems affecting their communities. Local

government amici depend on the CWA as Congress

drafted it. The judgment of the Court of Appeals

should be affirmed.

Respectfully submitted,