Petition for Writ of Certiorari — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.
Supreme Court briefAug 27, 2018
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No. _________
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In The
Supreme Court of the United States
-----------------------------------------------------------------COUNTY OF MAUI,
Petitioner,
v.
HAWAI‘I WILDLIFE FUND; SIERRA CLUB –
MAUI GROUP; SURFRIDER FOUNDATION;
WEST MAUI PRESERVATION ASSOCIATION,
Respondents.
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI
-----------------------------------------------------------------COUNTY OF MAUI
HUNTON ANDREWS KURTH LLP
PATRICK K. WONG
MICHAEL R. SHEBELSKIE
RICHELLE M. THOMSON
Counsel of Record
200 South High Street
ELBERT LIN
Wailuku, Maui, Hawai‘i 96793 951 East Byrd Street,
East Tower
Phone: (808) 270-7740
Richmond, Virginia 23219
mshebelskie@HuntonAK.com
Phone: (804) 788-8200
COLLEEN P. DOYLE
DIANA PFEFFER MARTIN
550 South Hope Street,
Suite 2000
Los Angeles, California 90071
Phone: (213) 532-2000
August 27, 2018
Counsel for Petitioner
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
In the Clean Water Act (CWA), Congress differentiated between point source and nonpoint source pollution in controlling pollution of navigable waters. The
CWA regulates point source pollution through permits,
while nonpoint source pollution is controlled through
federal oversight of state management programs and
other non-CWA programs.
This Court and several courts of appeals have read
the CWA’s line dividing point source and nonpoint
source pollution to turn on whether pollutants are delivered to navigable waters by a point source.
Parting with those cases, the Ninth Circuit concluded that point source pollution also includes pollutants that reach navigable waters by nonpoint sources
so long as the pollutants can be “traced” in more than
“de minimis” amounts to a point source. This holding
expands CWA permitting to millions of sources previously regulated as nonpoint source pollution.
The questions presented are:
1. Whether the CWA requires a permit when pollutants originate from a point source but are conveyed
to navigable waters by a nonpoint source, such as
groundwater.
2. Whether the County of Maui had fair notice
that a CWA permit was required for its underground
injection control wells that operated without such a
permit for nearly 40 years.
ii
LIST OF PARTIES
The names of all parties appear in the case caption
on the cover page.
RULE 29.6 STATEMENT
Petitioner County of Maui is a governmental corporation with no parent corporation or shares held by
a publicly traded company.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
LIST OF PARTIES ..............................................
ii
RULE 29.6 STATEMENT ....................................
ii
TABLE OF CONTENTS ......................................
iii
TABLE OF AUTHORITIES ................................. viii
PETITION FOR WRIT OF CERTIORARI ...........
1
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
1
STATUTORY PROVISIONS INVOLVED ...........
2
INTRODUCTION ................................................
3
STATEMENT .......................................................
6
I.
II.
Statutory Background ...............................
6
A. Federal and Hawai‘i Safe Drinking
Water Programs ...................................
6
B. The CWA ..............................................
7
1. Point Source v. Nonpoint Source ....
7
2. Navigable Waters v. Groundwater ...
8
Factual Background .................................. 10
A. The County’s UIC Wells ...................... 10
B. Regulation of the County’s Effluent
Injection ............................................... 11
C. Agency Evaluation of NPDES Permitting ....................................................... 13
iv
TABLE OF CONTENTS – Continued
Page
III.
Proceedings Below ..................................... 15
A. District Court Proceedings .................. 15
B. Ninth Circuit Appeal ........................... 16
REASONS FOR GRANTING THE PETITION .....
I.
17
The Ninth Circuit Wrongly Parted With
This Court And Several Appellate Courts
In Determining Where Congress Drew The
Line In The CWA Between Point Source
And Nonpoint Source Pollution ................. 17
A. The Ninth Circuit has created a growing conflict over the distinction between
point source and nonpoint source pollution ....................................................... 18
B. The Ninth Circuit erroneously expanded
NPDES permitting to nonpoint source
pollution ............................................... 24
II.
The Ninth Circuit’s Vast Expansion Of A
Federal Permitting Regime Is Akin To That
Reversed By This Court In UARG .............. 31
III.
The Ninth Circuit’s Ruling On Fair Notice
Is Directly At Odds With This Court’s Ruling In FCC v. Fox Television Stations ........ 36
CONCLUSION..................................................... 39
v
TABLE OF CONTENTS – Continued
Page
APPENDIX:
Opinions and Orders:
Order and Amended Opinion, Haw. Wildlife
Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir.
2018) ................................................................. App. 1
Order Denying Defendant’s Motion for Stay and
Granting Plaintiffs’ Motion for Partial Summary Judgment, Haw. Wildlife Fund v. Cty. of
Maui, 24 F. Supp. 3d 980 (D. Haw. 2014) ...... App. 32
Order Granting Plaintiffs’ Motion for Partial
Summary Judgment and Denying Defendant’s Motion for Partial Summary Judgment,
Haw. Wildlife Fund v. Cty. of Maui, No. 1200198 SOM/BMK, 2015 WL 328227 (D. Haw.
Jan. 23, 2015) ................................................. App. 85
Order Denying Defendant’s Motion for Summary Judgment Based on Lack of Fair Notice
and Granting Plaintiffs’ Motion for Partial
Summary Judgment Regarding Civil Penalties, Haw. Wildlife Fund v. Cty. of Maui, No.
12-00198 SOM/BMK, 2015 WL 3903918 (D.
Haw. June 25, 2015) ..................................... App. 101
Settlement Agreement and Order Re: Remedies,
Haw. Wildlife Fund v. Cty. of Maui, No. 1200198 SOM/BMK (D. Haw. Nov. 17, 2015)
(without Exhibit A) ...................................... App. 120
vi
TABLE OF CONTENTS – Continued
Page
Record Material:
Declaration of Kyle Ginoza, P.E., In Support of Defendant County of Maui’s Reply in Support of
the County’s Motion for Summary Judgment
Based on Lack of Fair Notice, Haw. Wildlife
Fund v. Cty. of Maui, No. 12-00198 SOM/BMK
(D. Haw. May 12, 2015) (excerpt) ................... App. 137
Letter from Stuart Yamada, P.E., Chief, Environmental Management Division, Hawai‘i Department of Health, to Eric Nakagawa, Chief,
Wastewater Reclamation Division, Department of Environmental Management, County
of Maui (Mar. 7, 2014) .................................. App. 145
E-mail from David Albright, EPA Region IX, to
Nancy Woo, Deputy Director, Water Division,
EPA Region IX (Oct. 29, 2013) ..................... App. 149
E-mail from David Smith, Manager, NPDES
Permits Office, EPA Region IX, to Alec Y.
Wong, Darryl C. Lum, Edward.G.Bohlen@
hawaii.gov, cc: David Albright, Elizabeth Sablad (Apr. 16, 2012) ...................................... App. 150
UIC Inventory by State – 2011 (excerpt)........ App. 151
E-mails between Edward Chen, Hawai‘i Department of Health, and Hudson Slay, EPA Region
IX (Feb. 19, 2010) ......................................... App. 152
vii
TABLE OF CONTENTS – Continued
Page
Letter from Wendy Wiltse, Ph.D., West Maui
Watershed Coordinator, Hawai‘i Department
of Health, to Milton Morales, EPA Region IX,
cc’d EPA and County of Maui (Oct. 31, 1994)
(excerpt) ........................................................ App. 153
Letter from Linda Lingle, Mayor, County of
Maui, to Brian J.J. Choy, Director, State of Hawai‘i Office of Environmental Quality Control
(Sept. 16, 1991), forwarding Brown and Caldwell Consultants, County of Maui, Department of Public Works, Lahaina Wastewater
Reclamation Facility Stage 1 Design, Environmental Assessment and Negative Declaration
(Sept. 1991) (excerpt) ................................... App. 155
Final Environmental Impact Statement for
Construction of Sewage Collection System
and Waste Water Reclamation Plant, Lahaina,
Maui, Hawai‘i (Mar. 27, 1973), with Transcript
of Public Meeting on Lahaina Sewer System
and Waste Water Reclamation Plant, Kamehameha III School Cafeteria (Feb. 21, 1973)
(excerpt) ........................................................ App. 158
viii
TABLE OF AUTHORITIES
Page
Federal Cases:
26 Crown Assocs., LLC v. Greater New Haven
Reg’l Water Pollution Control Auth., No. 3:15cv-1439 (JAM), 2017 WL 2960506 (D. Conn.
July 11, 2017), appeal docketed, 26 Crown St.
Assocs., LLC v. Greater New Haven Reg’l Water Pollution Control Auth., No. 17-2426 (2d
Cir. Aug. 4, 2017) .............................................. 23, 34
Appalachian Power Co. v. Train, 545 F.2d 1351
(4th Cir. 1976)............................................................7
Ass’n Concerned Over Res. & Nature, Inc. v.
Tenn. Aluminum Processors, Inc., No. 1:1000084, 2011 WL 1357690 (M.D. Tenn. Apr. 11,
2011) ........................................................................26
Catskill Mountains Chapter of Trout Unlimited,
Inc. v. City of New York, 273 F.3d 481 (2d Cir.
2001) ........................................................................19
Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602 (D. Md.
2011) ........................................................................21
Concerned Area Residents for the Env’t v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) ....................22
Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) ....... 37
Conservation Law Found., Inc. v. EPA, 964
F. Supp. 2d 175 (D. Mass. 2013) ..............................34
Cordiano v. Metacon Gun Club, Inc., 575 F.3d
199 (2d Cir. 2009) .............................................. 19, 20
ix
TABLE OF AUTHORITIES – Continued
Page
Dague v. City of Burlington, 935 F.2d 1343 (2d
Cir. 1991), rev’d on other grounds, 505 U.S. 557
(1992) .......................................................................22
Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir.
1977) ........................................................................10
FCC v. Fox Television Stations, Inc., 567 U.S. 239
(2012) ....................................................... 5, 36, 37, 38
FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120 (2000) ..........................................................3
Loughrin v. United States, 134 S. Ct. 2384 (2014)........ 27
McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182 (E.D. Cal. 1988), vacated on other grounds, McClellan Ecological
Seepage Situation v. Perry, 47 F.3d 325 (9th
Cir. 1995) .................................................................26
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ................................24
Ohio Valley Envtl. Coal. Inc. v. Pocahontas Land
Corp., No. 3:14-11333, 2015 WL 2144905 (S.D.
W.Va. May 7, 2015) ..................................................26
Or. Nat. Desert Ass’n v. U.S. Forest Serv., 550 F.3d
778 (9th Cir. 2008) ................................................. 7, 8
PennEnvironment v. PPG Indus., Inc., 964
F. Supp. 2d 429 (W.D. Pa. 2013) ..............................21
Rapanos v. United States, 547 U.S. 715
(2006) ..................................................... 21, 22, 23, 30
Rice v. Harken Expl. Co., 250 F.3d 264 (5th Cir.
2001) ............................................................ 20, 21, 23
x
TABLE OF AUTHORITIES – Continued
Page
Sackett v. EPA, 566 U.S. 120 (2012)............................30
Sierra Club v. Abston Constr. Co., 620 F.2d 41
(5th Cir. 1980).................................................... 19, 20
Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d
1133 (10th Cir. 2005) ...............................................22
Solid Waste Agency of N. Cook Cty. v. U.S. Army
Corps of Eng’rs, 531 U.S. 159 (2001).......................29
South Fla. Water Mgmt. Dist. v. Miccosukee
Tribe of Indians, 541 U.S. 95 (2004) ............... passim
Tri-Realty Co. v. Ursinus Coll., No. 11-5885,
2013 WL 6164092 (E.D. Pa. Nov. 21, 2013) ............21
Umatilla Waterquality Protective Ass’n, Inc. v.
Smith Frozen Foods, Inc., 962 F. Supp. 1312
(D. Or. 1997).............................................................21
United States v. Approximately 64,695 Pounds of
Shark Fins, 520 F.3d 976 (9th Cir. 2008) ...............17
United States v. Ortiz, 427 F.3d 1278 (10th Cir.
2005) ........................................................................22
United States v. Velsicol Chem. Corp., 438
F. Supp. 945 (W.D. Tenn. 1976) ...............................22
Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) ....... 19, 23, 34
U.S. Army Corps of Eng’rs v. Hawkes Co., 136
S. Ct. 1807 (2016) .............................................. 30, 32
xi
TABLE OF AUTHORITIES – Continued
Page
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427
(2014) (“UARG”) ............................................ 3, 35, 36
Vill. of Oconomowoc Lake v. Dayton Hudson
Corp., 24 F.3d 962 (7th Cir. 1994) ............... 20, 21, 23
DOCKETED CASES:
26 Crown St. Assocs., LLC v. Greater New Haven
Reg’l Water Pollution Control Auth., No. 172426 (2d Cir. filed Aug. 4, 2017) ........................ 23, 34
Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115
(6th Cir. filed Feb. 1, 2018) ......................................29
Sierra Club v. Va. Elec. & Power Co., No. 17-1895
(4th Cir. filed Aug. 2, 2017) .....................................29
Tenn. Clean Water Network v. Tenn. Valley Auth.,
No. 17-6155 (6th Cir. filed Oct. 3, 2017) .................29
FEDERAL STATUTES:
16 U.S.C. § 1455b .............................................. 8, 12, 29
16 U.S.C. § 1455b(a)(2) ...............................................12
28 U.S.C. § 1254(1) ........................................................1
33 U.S.C. § 1251(a)(1) ...................................................2
33 U.S.C. § 1251(a)(7) ............................................... 2, 8
33 U.S.C. § 1251(b) ......................................................30
33 U.S.C. § 1252(a) ......................................................27
33 U.S.C. § 1254(a)(5) .................................................27
xii
TABLE OF AUTHORITIES – Continued
Page
33 U.S.C. § 1256(e)(1) ..................................................27
33 U.S.C. § 1298(b) ......................................................14
33 U.S.C. § 1311(a) .................................................... 2, 7
33 U.S.C. § 1314(f ) ......................................................27
33 U.S.C. § 1329 ...................................................... 2, 12
33 U.S.C. § 1329(b)(1) ............................................. 8, 28
33 U.S.C. § 1342 ............................................................7
33 U.S.C. § 1342(a)(1) ...................................................2
33 U.S.C. § 1342(b) .................................................. 8, 27
33 U.S.C. § 1362(7) .................................................... 2, 8
33 U.S.C. § 1362(11) ....................................................27
33 U.S.C. § 1362(12) .................................................. 2, 7
33 U.S.C. § 1362(14) .............................................. 3, 4, 8
42 U.S.C. §§ 300f et seq. ................................................6
42 U.S.C. §§ 300h-300h-8 ............................................28
42 U.S.C. § 300h-1 .........................................................6
42 U.S.C. § 300h-1(c) ...................................................11
42 U.S.C. §§ 6901 et seq. ...............................................8
42 U.S.C. §§ 9601 et seq. ...............................................8
42 U.S.C. § 9601(8) ......................................................29
xiii
TABLE OF AUTHORITIES – Continued
Page
LEGISLATIVE HISTORY:
118 Cong. Rec. 10,666 (1972) ........................................9
S. Rep. No. 92-414, at 73 (1971), reprinted in S.
Comm. on Public Works, 93rd Cong., 2 A Legislative History of the Water Pollution Control
Act Amendments of 1972, at 1491 (1973) .................9
Water Pollution Control Legislation – 1971 (Proposed Amendments to Existing Legislation):
Hearings Before the H. Comm. on Public
Works, 92nd Cong., at 230 (1971) (statement
of Hon. William Ruckelshaus, Administrator,
EPA) ...........................................................................9
STATE STATUTES:
Haw. Rev. Stat. § 174C-3 .............................................28
Haw. Rev. Stat. § 174C-4 .............................................28
Haw. Rev. Stat. § 340E-2 ......................................... 7, 11
Haw. Rev. Stat. § 342D-50 ............................................8
FEDERAL REGULATIONS:
40 C.F.R. § 122.2 ...........................................................9
40 C.F.R. pt. 144 ............................................................6
40 C.F.R. § 144.81 ..................................................... 6, 7
40 C.F.R. §§ 257.90 et seq............................................29
xiv
TABLE OF AUTHORITIES – Continued
Page
STATE REGULATIONS:
Haw. Code R. § 11-23-06 ...............................................7
Haw. Code R. § 11-23-07 ...............................................7
Haw. Code R. § 11-62-03 .............................................10
Haw. Code R. § 11-62-26 .............................................10
FEDERAL REGISTER:
39 Fed. Reg. 43,759 (Dec. 18, 1974) ..............................8
83 Fed. Reg. 7126 (Feb. 20, 2018) ...............................23
OTHER AUTHORITIES:
EPA, Class V Wells for Injection of Non-Hazardous Fluids into or Above Underground
Sources of Drinking Water, https://www.epa.
gov/uic/class-v-wells-injection-non-hazardousfluids-or-above-underground-sources-drinkingwater ..........................................................................7
EPA, Contacts for Nonpoint Source (NPS) Pollution Programs, State Contacts, www.epa.gov/nps/
state-contacts-nps-programs ..................................28
EPA, FY 2016 Underground Injection Control
Inventory – By State, https://www.epa.gov/uic/
underground-injection-well-inventory ...................14
EPA, Guidelines for Water Reuse, EPA/600/R12/618 (Sept. 2012), https://nepis.epa.gov/Exe/Zy
PURL.cgi?Dockey=P100FS7K.TXT ........................32
xv
TABLE OF AUTHORITIES – Continued
Page
EPA, National Management Measures to Control Nonpoint Source Pollution from Urban Areas, EPA-841-B-05-004 (Nov. 2005), https://www.
epa.gov/sites/production/files/2015-09/documents/
urban_guidance_0.pdf .............................................32
EPA, NPDES Permit Status Reports, FY 2017
Non-Tribal Backlog Summary Report, https://
www.epa.gov/NPDES/NPDES-permit-statusreports .....................................................................35
Govern, Heather A., Esq., Conservation Law
Foundation, Letter to James Apteker, CEO,
Longwood Venues and Destinations, Inc., et
al. (June 21, 2018) ...................................................35
Govern, Heather A., Esq., Conservation Law
Foundation, Letter to Mark J. Novota, Managing Partner, Wequassett Inn LLP, et al. (June
21, 2018) ..................................................................35
Hawai‘i State Department of Health, Hawai‘i’s
Nonpoint Source Management Plan (20152020), http://planning.hawaii.gov/czm/initiatives/
coastal-nonpoint-pollution-control-program/
hawaiis-implementation-plan-for-polluted-runoffcontrol/ ............................................................. passim
U.S. Department of Housing and Urban Development and U.S. Census Bureau, American
Housing Survey for the United States: 2011,
H150/11 (Sept. 2013), https://www.census.gov/
library/publications/2013/demo/h150-11.html .......33
Webster’s New International Dictionary of the
English Language Unabridged (3d ed. 1993).........25
1
PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the Ninth Circuit Court of Appeals
as amended is reported at 886 F.3d 737 (9th Cir. 2018)
and is reproduced in the Appendix starting at App. 1.
The three opinions of the United States District Court
for the District of Hawai‘i granting Respondents summary judgment, and denying the County summary
judgment, are reported at 24 F. Supp. 3d 980 (D. Haw.
2014); 2015 WL 328227 (D. Haw. Jan. 23, 2015); and
2015 WL 3903918 (D. Haw. June 25, 2015). They are
reproduced in the Appendix starting, respectively, at
App. 32, App. 85 and App. 101.
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JURISDICTION
The Ninth Circuit’s judgment was entered on February 1, 2018. On March 30, 2018, the Ninth Circuit
entered an order and amended opinion denying the
County’s timely petition for en banc rehearing. By order entered June 4, 2018, this Court extended the time
for the County’s certiorari petition to August 27, 2018.
The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
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2
STATUTORY PROVISIONS INVOLVED
33 U.S.C. § 1251(a)(1) provides: “it is the national
goal that the discharge of pollutants into navigable waters be eliminated by 1985[.]”
33 U.S.C. § 1251(a)(7) provides: “it is the national
policy that programs for the control of nonpoint
sources of pollution be developed and implemented in
an expeditious manner so as to enable the goals of this
chapter to be met through the control of both point and
nonpoint sources of pollution.”
33 U.S.C. § 1311(a) provides: “Except as in compliance with this section and sections 1312, 1316, 1317,
1328, 1342, and 1344 of this title, the discharge of any
pollutant by any person shall be unlawful.”
33 U.S.C. § 1329 requires federally approved state
nonpoint source management programs.
33 U.S.C. § 1342(a)(1) provides, in pertinent part:
“Except as provided in sections 1328 and 1344 of this
title, the Administrator may, after opportunity for public hearing issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding
section 1311(a) of this title. . . .”
33 U.S.C. § 1362(7) defines “ ‘navigable waters’ ” as
“waters of the United States, including the territorial
seas.”
33 U.S.C. § 1362(12) defines a “ ‘discharge of a pollutant’ ” as “any addition of any pollutant to navigable
waters from any point source.”
3
33 U.S.C. § 1362(14) defines a “ ‘point source’ ” in
relevant part as “any discernible, confined and discrete
conveyance . . . from which pollutants are or may be
discharged.”
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INTRODUCTION
Four years ago, this Court reversed an interpretation of the Clean Air Act because it expanded federal
jurisdiction to “millions” of sources that previously did
not require permits under the Clean Air Act. Util. Air
Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014)
(“UARG”). Citing several precedents, this Court explained that it “typically greet[s] . . . with a measure of
skepticism” the purported “discover[y] in a long-extant
statute an unheralded power to regulate ‘a significant
portion of the American economy.’ ” Ibid. (quoting FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
159 (2000)). This Court “expect[s] Congress to speak
clearly if it wishes to assign to an agency decisions of
vast ‘economic and political significance,’ ” such as
“[t]he power to require permits for the construction
and modification of tens of thousands, and the operation of millions, of small sources nationwide.” Ibid.
This case calls for a similar response to the Ninth
Circuit’s radical expansion of point source permitting
beyond the scope long given by this Court and several
courts of appeals. The Clean Water Act (CWA) requires
National Pollutant Discharge Elimination System
(NPDES) permits for the discharge of pollutants to
4
navigable waters from point sources (defined as “discernible, confined and discrete conveyance[s,]” 33
U.S.C. § 1362(14)). But the CWA regulates nonpoint
source pollution differently. It is controlled through
United States Environmental Protection Agency (EPA)
oversight of state management programs, as well as by
other non-CWA programs.
The Ninth Circuit has swept into the NPDES permitting program millions of sources long regulated as
nonpoint sources of pollution. For years, this Court and
several appeals courts have read the CWA to distinguish between point source and nonpoint source pollution based on an intuitive, bright-line test: whether
pollutants are delivered to navigable waters by means
of one or more point sources. Creating its own more expansive test, the Ninth Circuit concluded that point
source pollution also includes, on a case-by-case basis,
pollutants that reach navigable waters by nonpoint
sources like groundwater so long as the pollutants are
“traceable” to a point source.
Without this Court’s intervention, a wide array of
sources previously regulated outside the NPDES point
source program, like the underground injection control
(UIC) wells at issue here, will be brought suddenly
within it. Part of a wastewater treatment facility built
nearly 40 years ago with EPA funding and encouragement, the UIC wells in this case are a common method
used by municipalities to dispose of treated wastewater (called effluent) generated by homes and businesses. EPA and the Hawai‘i Department of Health
(HDOH) regulate the County’s wells under federal and
5
state safe drinking water programs. Though these
agencies have known since the facility’s design in the
early 1970s that the effluent would enter groundwater,
which in turn would carry it to the ocean, neither required an NPDES permit until this litigation. Now the
County and its taxpayers are unexpectedly faced with
massive liability in fines and injunctive relief for
failing to have such a permit. And the same fate is
likely to befall millions of other sources, including the
roughly 6,600 UIC wells and 21,000 septic systems in
Hawai‘i. Indeed, recent notices of intent to file citizen
suits for groundwater pollution follow and expand on
the Ninth Circuit’s rationale.
Certiorari is warranted for three reasons. First, intervention is needed to resolve a conflict between this
Court’s decision in South Florida Water Management
District v. Miccosukee Tribe of Indians, 541 U.S. 95
(2004), several appeals court decisions consistent with
Miccosukee, and the Ninth Circuit’s decision. Second,
the Ninth Circuit’s expansion of NPDES point source
permitting is akin to the expansion of Clean Air Act
permitting this Court reversed in UARG. Third, the
Ninth Circuit’s conclusion that the County had fair notice of an obligation to obtain an NPDES permit for its
wells is directly at odds with FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012).
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6
STATEMENT
This case arises out of a dispute over the type of
regulation applicable to four UIC wells at the County’s
Lahaina Wastewater Reclamation Facility. No party
questions that the wells are subject to and permitted
under the federal and state safe drinking water programs, and are in compliance with those permits. The
parties disagree over whether a CWA NPDES permit
is also required, or whether well disposal constitutes
nonpoint source pollution that is regulated under the
CWA’s nonpoint source program and other regulatory
programs.
I.
Statutory Background
A. Federal and Hawai‘i Safe Drinking Water Programs
Enacted in 1974, the federal Safe Drinking Water
Act (SDWA) protects the nation’s drinking water. 42
U.S.C. §§ 300f et seq. Among other things, it charges
EPA with developing minimum requirements for UIC
programs that prevent injection wells from contaminating underground sources of drinking water. Id.
§ 300h-1. EPA has promulgated regulations doing so.
40 C.F.R. pt. 144. Though States may seek delegated
authority to run the UIC program, EPA administers a
federal UIC program in Hawai‘i.
The wells here are Class V wells under federal
law—wells used to inject non-hazardous fluids underground. Id. § 144.81. EPA estimates there are more
7
than 650,000 Class V wells operating nationwide.1
Such things as agricultural field runoff, sanitary sewage, and water for aquifer storage/recharge are injected into Class V wells. Ibid.
Hawai‘i also has a safe drinking water program.
Haw. Rev. Stat. § 340E-2. It too regulates UIC wells,
with Class V wells managed similarly to Class V wells
under federal law. Haw. Code R. §§ 11-23-06, 11-23-07.
B. The CWA
1. Point Source v. Nonpoint Source
The CWA controls pollution of navigable waters
through point source permitting and nonpoint source
pollution management programs. This point source/
nonpoint source distinction is an “organizational paradigm of the Act.” Or. Nat. Desert Ass’n v. U.S. Forest
Serv., 550 F.3d 778, 780 (9th Cir. 2008). See also Appalachian Power Co. v. Train, 545 F.2d 1351, 1373 (4th
Cir. 1976) (“Congress consciously distinguished between point source and nonpoint source discharges.”).
Absent an NPDES permit issued under 33 U.S.C.
§ 1342, the CWA prohibits the “discharge of any pollutant,” id. § 1311(a), defined as “any addition of any pollutant to navigable waters from any point source,” id.
§ 1362(12). A “point source” is “any discernible,
1
EPA, Class V Wells for Injection of Non-Hazardous Fluids
into or Above Underground Sources of Drinking Water, https://
www.epa.gov/uic/class-v-wells-injection-non-hazardous-fluids-orabove-underground-sources-drinking-water (last visited Aug. 17,
2018).
8
confined and discrete conveyance . . . from which pollutants are or may be discharged.” Id. § 1362(14). An
NPDES permit can be issued by a State under an
EPA-approved state program, or by EPA itself. Id.
§ 1342(b). In Hawai‘i, NPDES permits are issued by
the state. Haw. Rev. Stat. § 342D-50; 39 Fed. Reg.
43,759 (Dec. 18, 1974).
“All other sources of pollution are characterized as
‘nonpoint sources.’ ” Or. Nat. Desert Ass’n, 550 F.3d at
780. Nonpoint source pollution does not require an
NPDES permit. Instead, the CWA directs States to
adopt nonpoint source management programs, subject
to EPA approval, “for controlling pollution added from
nonpoint sources to the navigable waters within the
State and improving the quality of such waters.” 33
U.S.C. § 1329(b)(1). See also id. § 1251(a)(7). Nonpoint
source pollution is also addressed by other federal statutes, including the SDWA, the Coastal Zone Act Reauthorization Amendments of 1990 (“Coastal Zone Act”),
16 U.S.C. § 1455b, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., and the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 42 U.S.C. §§ 9601 et
seq.
2. Navigable Waters v. Groundwater
The CWA distinguishes between groundwater and
navigable waters. “Navigable waters” are defined as
“waters of the United States, including the territorial
seas.” 33 U.S.C. § 1362(7). That definition does not
9
include groundwater, a term used multiple times elsewhere in the statute. See 40 C.F.R. § 122.2 (groundwater excluded from the definition of “Waters of the
United States”).
This bright-line distinction is reflected directly in
the CWA’s legislative history. During the CWA’s enactment, Congress specifically debated several proposals
to extend NPDES permitting to groundwater that may
connect to navigable waters. The EPA administrator
urged Congress to require NPDES permits for the addition of pollutants to groundwater because those pollutants could reach navigable waters “through the
ground water table.” See Water Pollution Control Legislation—1971 (Proposed Amendments to Existing
Legislation): Hearings Before the H. Comm. on Public
Works, 92nd Cong., at 230 (1971) (statement of Hon.
William Ruckelshaus, Administrator, EPA). Likewise,
then-Representative Les Aspin proposed extending
NPDES permitting to pollutants discharged to groundwater because “ground water gets into navigable waters.” 118 Cong. Rec. 10,666 (1972).
Congress rejected these pleas. See S. Rep. No. 92414, at 73 (1971), reprinted in S. Comm. on Public
Works, 93rd Cong., 2 A Legislative History of the Water
Pollution Control Act Amendments of 1972, at 1491
(1973) (“Several bills pending before the Committee
provided authority to establish Federally approved
standards for groundwaters . . . . Because the jurisdiction regarding groundwaters is so complex and varied
from State to State, the Committee did not adopt this
recommendation.”). As the Fifth Circuit has said, “the
10
legislative history demonstrates conclusively that Congress believed it was not granting the Administrator
any power to control disposals into groundwater. . . .
[Rather the CWA’s] pattern is one of federal information gathering and encouragement of state efforts
to control groundwater pollution but not of direct federal control over groundwater pollution.” Exxon Corp.
v. Train, 554 F.2d 1310, 1322, 1329 (5th Cir. 1977).
II.
Factual Background
A. The County’s UIC Wells
The County’s Lahaina Wastewater Reclamation
Facility treats wastewater generated by homes and
businesses in the western part of Maui. Constructed
with EPA funding, operations commenced by the early
1980s, with treated effluent injected into UIC wells.
Before injection, effluent is treated to meet R-1 water
standards, Hawai‘i’s highest standards for recycled
water. Haw. Code R. §§ 11-62-03, 11-62-26. As a result,
some treated effluent is used for resort and golf course
irrigation. Upon injection, effluent immediately mixes
with groundwater and disperses both vertically and
horizontally as it enters groundwater through approximately 100-foot well openings.
As is true of all groundwater in Hawai‘i, the
groundwater that receives the effluent migrates toward the ocean. According to an EPA tracer study,
more than 90% of the effluent/groundwater mixture
enters through diffuse flow, with no identifiable ocean
entry point. Less than 10% enters through seeps in the
11
ocean floor (small fissures typically only a few inches
long and wide). The seeps are ephemeral, as they are
easily covered by sand and become undetectable. The
study showed an average transit time of 15 months for
dye to travel approximately a half mile southwest from
the wells to the ocean. It also showed that the submarine groundwater discharge has noticeably different
nutrient levels than the effluent, due to chemical modifications that naturally occur as groundwater migrates.
Both EPA and HDOH have always known that effluent from the Lahaina wells reaches the ocean via
groundwater flow. Both agencies received the 1973 preconstruction environmental impact report explaining
that injected effluent would “eventually reach the
ocean.” App. 159. A 1991 environmental review reaffirmed this, finding the effluent “flows toward the
ocean” and “probably enters the ocean with the fresh
groundwater.” App. 157. And in 1994, both agencies understood that “all experts agree that the wastewater
does enter the ocean.” App. 153-154. Neither agency
suggested this requires NPDES permitting.
B. Regulation of the County’s Effluent Injection
The facility’s wells are regulated as Class V
wells through permits issued by EPA and HDOH under their respective safe drinking water programs.
42 U.S.C. § 300h-1(c); Haw. Rev. Stat. § 340E-2. These
permits regulate the volume, rate and constituent
12
concentrations of injected effluent. EPA’s permit imposes a nitrogen limit to address ocean water quality.
App. 139-140, ¶ 7. There is no contention the County
violated its UIC permits.
Hawai‘i’s nonpoint source pollution management
program, subject to EPA approval under the CWA, is
specifically designed to control the migration of effluent from the County’s wells to coastal waters. Hawai‘i’s
Nonpoint Source Management Plan (2015-2020)2 implements an integrated plan to comply with nonpoint
source statutory programs under both the CWA and
the Coastal Zone Act. 33 U.S.C. § 1329, 16 U.S.C.
§ 1455b. This plan is more stringent than a CWA nonpoint source program alone because the Coastal Zone
Act requires a federally approved program that “update[s] and expand[s]” on the CWA’s nonpoint source
management program to protect coastal waters from
nonpoint sources, 16 U.S.C. § 1455b(a)(2), such as the
effluent/groundwater mixture at issue here. Hawai‘i’s
Nonpoint Source Management Plan, at 10 (“[G]roundwater discharge also impacts near-shore areas.”). As
the CWA envisions, Hawai‘i’s plan provides a “coordinated approach among federal, state, and local . . .
agencies to implement NPS [nonpoint source] projects
and target pollutants and their sources more effectively.” Id. at 5. Hawai‘i’s plan focuses on three priority
2
Hawai‘i State Department of Health, Hawai‘i’s Nonpoint
Source Management Plan (2015-2020), http://planning.hawaii.
gov/czm/initiatives/coastal-nonpoint-pollution-control-program/
hawaiis-implementation-plan-for-polluted-runoff-control/.
13
watersheds, including the one encompassing the
County’s wells (West Maui). Ibid.
C. Agency Evaluation of NPDES Permitting
HDOH never required the County to have an
NPDES permit for its well disposal. For example, in
2010 HDOH explained to EPA that the CWA was inapplicable because the wells injected into groundwater,
not navigable waters. App. 152 (“Please note CWA content using term “ground water” to separate ground water from Navigable waters when ground water is
involved.”). In a March 2014 letter sent in response to
a County inquiry, HDOH said it had “not made a decision yet” on the need for an NPDES permit for the
County’s wells. App. 146-147. And in a May 2015 meeting with the County, HDOH maintained that NPDES
permitting only applies to discharges to navigable waters and the district court’s ruling was “unprecedented.” App. 143, ¶ 32.
HDOH’s treatment of the County’s wells is consistent with its treatment of UIC wells statewide. At
the start of this litigation, EPA’s FY2011 state survey
identified more than 5,600 Class V UIC wells in Hawai‘i, none of which were required to have an NPDES
permit. App. 151. By EPA’s updated FY2016 survey,
14
there were more than 6,600.3 None of the additional
1,000 wells have NPDES permits either.
Despite involvement with the Lahaina facility
since the planning stages, EPA also never took the position, until this litigation, that the wells required an
NPDES permit. App. 138-143. Because it provided
CWA grant funding, EPA had to determine at the outset that the facility was CWA compliant. 33 U.S.C.
§ 1298(b). It required an NPDES permit for certain
early facility operations but not for the wells. Over the
years, EPA was confronted with several opportunities
to take the position that the wells required an NPDES
permit, but never did. App. 138-143. For example, in
1999, EPA sued the County for alleged CWA violations
but did not identify the wells as requiring an NPDES
permit. App. 140, ¶ 8. And in 2008, 2009, and 2011,
EPA responded to public comments claiming that the
wells required NPDES permits but did not direct the
County to obtain such permits. App. 140-142, ¶¶ 11, 13,
& 14.
Even after this lawsuit’s initial filing, EPA did not
immediately change its position. At first, it elected to
“steer[ ] clear” of any NPDES permitting decision, preferring to watch from the “sideline.” App. 149, App. 150.
Only after the district court’s first summary judgment
ruling did EPA tell HDOH the wells needed an NPDES
permit.
3
EPA, FY 2016 Underground Injection Control Inventory –
By State, https://www.epa.gov/uic/underground-injection-well-inventory
(last visited Aug. 17, 2018).
15
III. Proceedings Below
A. District Court Proceedings
In 2012, Respondents sued the County, claiming
injection of effluent without an NPDES permit violates
the CWA. The County responded that the wells do not
require an NPDES permit because they inject into
groundwater, which is not navigable water and thus
outside the CWA’s prohibition. The subsequent migration of effluent to the ocean via diffuse subterranean
groundwater flow, the County contended, is nonpoint
source pollution that likewise falls outside the scope of
NPDES permitting.
In three separate orders, the district court granted
summary judgment for Respondents. In the first order,
the district court found the County liable under the
CWA for failure to have an NPDES permit for two of
its wells. The court found the wells are point sources
that “indirectly discharge[d] a pollutant into the ocean
through a groundwater conduit,” though it conceded
that it could not “point to controlling appellate law or
statutory text expressly allowing” the conduit theory.
App. 56, App. 63. Alternatively, the court found the
County liable because the groundwater is a point
source discharging pollutants into the ocean. App. 6972. In the second order, the district court applied the
same reasoning to find the County liable for failure to
have an NPDES permit for the two remaining wells.
App. 93-99. And in the final order, the district court
found that the County had “fair notice” of its liability
for failure to have an NPDES permit. App. 113-114.
16
B. Ninth Circuit Appeal
The County appealed to the Ninth Circuit, which
affirmed the district court. The Ninth Circuit premised
its liability finding solely on the notion that NPDES
permitting includes circumstances where pollutants
reach navigable waters by means other than a point
source, such as through groundwater.
The Ninth Circuit crafted a new test for NPDES
permitting of point source pollution based on the traceability and volume of pollutants reaching navigable
waters. It found the County liable because: (1) “the
County discharged pollutants from a point source” (i.e.,
the wells); (2) “pollutants are fairly traceable from the
point source to a navigable water such that the discharge is the functional equivalent of a discharge into
the navigable water”; and (3) pollutants reach navigable water at “more than de minimis” levels. App. 24.
The Ninth Circuit provided no limit to its new rule, expressly “leav[ing] for another day the task of determining when, if ever, the connection between a point
source and a navigable water is too tenuous to support
liability under the CWA.” App. 25 (emphasis added).
In creating its new rule, the Ninth Circuit rejected
two other tests for determining whether pollution that
reaches navigable waters by means other than a point
source nevertheless requires an NPDES point source
permit. The Ninth Circuit expressly declined to adopt
the district court’s “conduit theory” of liability. App. 24.
It also rejected the rule proposed by EPA as amicus curiae, which argued that disposal of pollutants into
17
groundwater requires an NPDES permit if the groundwater forms a “direct hydrological connection” between
the point source and navigable waters. The Ninth Circuit criticized EPA’s proposal as “read[ing] two words
into the CWA (‘direct’ and ‘hydrological’) that are not
there,” App. 24 n.3, though it did not explain where the
words in its test (“fairly,” “traceable,” and “de minimis”)
are found in the statute.
Finally, the Ninth Circuit concluded that the
County had fair notice of its liability under the NPDES
point source program because its actions “fall squarely
within the ‘[p]lain [l]anguage of the [s]tatute.’ ” App.
29-30 (quoting United States v. Approximately 64,695
Pounds of Shark Fins, 520 F.3d 976, 980 (9th Cir.
2008)).
------------------------------------------------------------------
REASONS FOR GRANTING THE PETITION
I.
The Ninth Circuit Wrongly Parted With
This Court And Several Appellate Courts
In Determining Where Congress Drew The
Line In The CWA Between Point Source
And Nonpoint Source Pollution.
In conflict with this Court and several courts of
appeals, the Ninth Circuit incorrectly expanded
NPDES point source permitting to cover nonpoint
source pollution, which is regulated in other ways. As
described below, this Court and several appeals courts
have read the CWA to draw a bright line between point
and nonpoint source pollution based on a single critical
18
requirement: whether pollutants are delivered to navigable waters by means of one or more point sources.
In contrast, the Ninth Circuit also includes within
point source pollution circumstances where pollutants
reach navigable waters by means other than a point
source, such as groundwater, so long as the pollutants
can be “traced” to a point source. Only the former reading is consistent with the text, structure, and history
of the CWA.
This Court should grant certiorari to restore nationwide uniformity to NPDES point source permitting
and reaffirm its previous case law.
A. The Ninth Circuit has created a growing
conflict over the distinction between
point source and nonpoint source pollution.
This Court addressed the meaning of the phrase
“discharge of any pollutant” in Miccosukee, and clearly
stated that point source pollution under the CWA requires that a point source “convey” the pollutant to
navigable waters. 541 U.S. at 105. After reviewing the
statutory definitions of “discharge of a pollutant” and
“point source,” the unanimous Court highlighted the
word “conveyance” in the definition of point source,
reasoning that the key characteristic of point sources
is not that they may generate pollutants but rather
that they “transport” pollutants. Ibid. Recognizing
that, the Court held the “definition makes plain” that
while a point source need not be the “original source”
19
of the pollutant, “it need[s] [to] . . . convey the pollutant to ‘navigable waters.’ ” Ibid. (emphasis added).
The Second and the Fifth Circuits have read the
CWA in the same way. It is not sufficient that pollutants were released into the environment by a point
source. Rather, one or more point sources must carry
them to navigable waters. Cordiano v. Metacon Gun
Club, Inc., 575 F.3d 199, 224 (2d Cir. 2009) (CWA “requires that pollutants reach navigable waters by a ‘discernible, confined and discrete conveyance’ ”); Catskill
Mountains Chapter of Trout Unlimited, Inc. v. City of
New York, 273 F.3d 481, 493, 494 (2d Cir. 2001) (CWA’s
“plain meaning” requires that “point source” refers to
“the proximate source from which the pollutant is directly introduced to the destination water body”); Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (5th Cir.
1980) (point sources must “be the means by which pollutants are ultimately deposited into a navigable body
of water.”). See also Upstate Forever v. Kinder Morgan
Energy Partners, L.P., 887 F.3d 637, 659 (4th Cir. 2018)
(Floyd, J., dissenting) (observing this Court and several appellate courts have concluded the “discharge of
a pollutant,” that triggers NPDES permitting occurs
only where point sources “convey, transport, or introduce the pollutant to navigable waters.”).
In Cordiano, the Second Circuit held that a firing
range did not require an NPDES permit when lead
from shell casings migrated from a range berm to navigable water via airborne dust and uncollected surface
water runoff. 575 F.3d at 223-24. Although the berm
was “an identifiable source from which lead pollution
20
reaches jurisdictional wetlands,” i.e., the pollution in
navigable water was fairly traceable to the berm, the
court held that fact was “not enough to satisfy the CWA
requirement of a point source discharge.” Id. at 224
(emphases added). Imposing CWA liability merely because pollutants in navigable waters are traceable to a
point source, the court explained, “would eviscerate the
point source requirement and undo Congress’s choice.”
Ibid.
In Abston, the Fifth Circuit expressly rejected the
argument that an NPDES permit is required if the
“original source” of pollutants in navigable waters was
a point source, “regardless of how the pollutant found
its way from that original source to the waterway.” 620
F.2d at 44. “Whether or not the law should prohibit
such pollution,” the CWA “does not.” Ibid. Because
“[t]he focus of this Act is on the ‘discernible, confined
and discrete’ conveyance of the pollutant,” an NPDES
permit is required only where a point source is “the
means by which pollutants are ultimately deposited
into a navigable body of water.” Id. at 44, 45.
Consistent with these cases, the Fifth and Seventh
Circuits have considered and rejected that point source
pollution includes pollution that travels from a point
source through groundwater (a nonpoint source) to
navigable waters. Rice v. Harken Expl. Co., 250 F.3d
264 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton
Hudson Corp., 24 F.3d 962 (7th Cir. 1994). In Rice, the
court rejected this “unwarranted expansion” of the
CWA, supporting its analysis with a close review of the
statute’s history. 250 F.3d at 271. “Congress was aware
21
that there was a connection between ground and surface waters,” the court wrote, but decided “to leave the
regulation of groundwater to the States,” and courts
must “respect Congress’s decision.” Id. at 271-72. In
Oconomowoc, the court held that NPDES permitting
does not extend to pollutants seeping into groundwater
regardless of a hydrological connection to navigable
waters. 24 F.3d at 963, 965.4
In contrast to these cases, the Ninth Circuit does
not require that one or more point sources actually
convey pollutants to navigable waters. It imposes
NPDES point source permitting merely because pollutants in navigable waters are “fairly traceable” to a
point source.
The Ninth Circuit conspicuously fails to discuss
this Court’s straightforward textual analysis in Miccosukee, seeking instead to ground its ruling on dictum
regarding “indirect discharges” in Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715
(2006). App. 21-23. But Justice Scalia’s Rapanos opinion is fully consistent with Miccosukee, which he
quoted without question. Rapanos, 547 U.S. at 743.
Justice Scalia allowed that discharges into “intermittent watercourses” might need NPDES permits if those
4
Numerous district courts concur. See, e.g., Umatilla Waterquality Protective Ass’n, Inc. v. Smith Frozen Foods, Inc., 962
F. Supp. 1312, 1318-20 (D. Or. 1997); Chesapeake Bay Found., Inc.
v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 619-20 (D.
Md. 2011); PennEnvironment v. PPG Indus., Inc., 964 F. Supp. 2d
429, 454-55 (W.D. Pa. 2013); and Tri-Realty Co. v. Ursinus Coll.,
No. 11-5885, 2013 WL 6164092, at *8 (E.D. Pa. Nov. 21, 2013).
22
sometimes-dry features act as “intermittent channels”
that convey pollutants to navigable waters. Ibid. He
then made a special point to note that “[i]n fact, many
courts have held that such upstream, intermittently
flowing channels themselves constitute ‘point sources’
under the Act.” Ibid.
It is a stretch to suggest, as the Ninth Circuit did,
that Justice Scalia endorsed the notion that a point
source discharge under the CWA includes pollution
that reaches navigable waters by means other than a
point source. Indeed, every case cited by Justice Scalia
involved pollution conveyed by one or more point
sources to navigable waters. See Sierra Club v. El Paso
Gold Mines, Inc., 421 F.3d 1133, 1141 (10th Cir. 2005)
(mineshaft discharge through a tunnel to navigable
waters); United States v. Velsicol Chem. Corp., 438
F. Supp. 945, 946-47 (W.D. Tenn. 1976) (chemical facility discharge through a municipal storm sewer to navigable waters); Miccosukee, 541 U.S. at 104 (pump
station discharge through a canal to navigable waters);
United States v. Ortiz, 427 F.3d 1278, 1281 (10th Cir.
2005) (industrial facility toilet discharge to a storm
drain to navigable waters); Dague v. City of Burlington,
935 F.2d 1343, 1354-55 (2d Cir. 1991) (landfill seepage
discharge through a culvert to navigable waters), rev’d
on other grounds, 505 U.S. 557 (1992); Concerned Area
Residents for the Env’t v. Southview Farm, 34 F.3d 114,
118 (2d Cir. 1994) (farm vehicle discharge through a
swale, pipe, and ditch to navigable waters).
The Ninth Circuit’s confusion about Rapanos underscores the need for review here, as it is not alone in
23
its misapprehension of Justice Scalia’s opinion. In a recent ruling, the Fourth Circuit also suggested Rapanos
had overtaken Miccosukee. Kinder Morgan, 887 F.3d at
650 n.11. District courts, too, are hopelessly confused
and divided about the “indirect discharge” language in
Rapanos. Compare App. 59-60 (Rapanos allows for discharges through nonpoint source groundwater) with
26 Crown Assocs., LLC v. Greater New Haven Reg’l Water Pollution Control Auth., No. 3:15-cv-1439 (JAM),
2017 WL 2960506, at *7 (D. Conn. July 11, 2017), appeal docketed, 26 Crown St. Assocs., LLC v. Greater
New Haven Reg’l Water Pollution Control Auth., No. 172426 (2d Cir. Aug. 4, 2017) (Rapanos requires a “surface connection”). Review would allow the Court to resolve the confusion.
So, too, do EPA’s actions in this area confirm the
need for this Court’s intervention. Though the agency
supported Respondents as amicus curiae before the
Ninth Circuit, it published a Federal Register notice
earlier this year raising questions about the Ninth Circuit’s ruling. 83 Fed. Reg. 7126, 7128 (Feb. 20, 2018).
EPA documented a lack of clarity in its previous statements on this issue, and noted the substantial and
“mixed case law on whether certain releases of pollutants to groundwater are within the jurisdictional
reach of the CWA,” citing several cases, including Rice,
Oconomowoc, and the Ninth Circuit decision below. Id.
at 7128. The agency solicited comments by May 21,
2018, on “whether subjecting such releases to CWA
permitting is consistent with the text, structure, and
purposes of the CWA.” Ibid. In short, even the federal
24
agency generally responsible for the CWA has
acknowledged a real and significant lack of uniformity
and certainty over the central legal question in this
case.
Only this Court, however, can reconcile the “mixed
case law” discussed above and highlighted in EPA’s
Federal Register notice. Under this Court’s precedent,
no action by EPA could countermand the Ninth Circuit’s flawed interpretation of the CWA. “A court’s
prior judicial construction of a statute trumps an
agency construction . . . if the prior court decision holds
that its construction follows from the unambiguous
terms of the statute and thus leaves no room for agency
discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 982 (2005). That is the
case here. The Ninth Circuit purported to follow the
unambiguous terms of the CWA, see App. 29-30 (holding that the County’s actions “fall squarely within the
[p]lain [l]anguage of the [s]tatute”), even criticizing
EPA’s amicus brief for being unfaithful to the text,
App. 24 n.3. Now only this Court can reaffirm that Miccosukee properly reads the CWA, as discussed more
fully below.
B. The Ninth Circuit erroneously expanded
NPDES permitting to nonpoint source
pollution.
The bright line this Court drew in Miccosukee between point and nonpoint source pollution—holding
that point source pollution occurs only where pollution
25
reaches navigable waters by way of a point source—is
the only line consistent with the CWA’s text, structure,
and history.
As this Court explained in Miccosukee, its reading
of the CWA derives directly from the statutory text—
in particular, the statute’s definition of a point source
as “a discernible, confined, and discrete conveyance.”
541 U.S. at 105. The use of the word “conveyance” to
define “point source” makes clear that the focus of the
CWA’s prohibition on point source pollution is on the
“means of carrying or transporting” pollutants and not
their point of origin. See Conveyance, Webster’s New
International Dictionary of the English Language Unabridged (3d ed. 1993). As this Court observed in Miccosukee, the examples of point sources listed by the
CWA “[t]ellingly” are discernible, confined, and discrete “objects that do not themselves generate pollutants but merely transport them.” 541 U.S. at 105. It
follows plainly, therefore, that the difference between
point source and nonpoint source pollution should turn
on whether the pollution is “conveyed” by one or more
point sources into navigable waters.
No other line between point source and nonpoint
source pollution can claim such a clear basis in the text
of the CWA. In this case alone, three tests have been
advanced to define the line: the district court’s “conduit” theory, EPA’s “direct hydrological connection,”
and the Ninth Circuit’s “fairly traceable” and more
than “de minimis” standard. All are entirely atextual.
The district court readily conceded it could not identify
“statutory text expressly allowing” its theory. App. 63.
26
EPA’s theory, as the Ninth Circuit recognized, “reads
two words into the CWA (‘direct’ and ‘hydrological’)
that are not there.” App. 24 n.3. The Ninth Circuit’s
own test suffers the same flaw, which it tacitly admits,
arguing only that its rule “better aligns with the statutory text,” is “consistent with Article III standing
principles,” and “is firmly grounded in our case law.”
Ibid.
Unsurprisingly, the various district courts expanding point source pollution to include groundwater
migration, like the Ninth Circuit, have created a
hodgepodge of inconsistent standards relying on various terms not found in the statutory text. See, e.g.,
McClellan Ecological Seepage Situation v. Weinberger,
707 F. Supp. 1182, 1196 (E.D. Cal. 1988), vacated on
other grounds, McClellan Ecological Seepage Situation
v. Perry, 47 F.3d 325 (9th Cir. 1995) (NPDES permitting
applicable when “the groundwater is naturally connected to surface waters”) (emphasis added); Ass’n
Concerned Over Res. & Nature, Inc. v. Tenn. Aluminum
Processors, Inc., No. 1:10-00084, 2011 WL 1357690, at
*17 (M.D. Tenn. Apr. 11, 2011) (“groundwater is subject
to the CWA provided an impact on federal waters”)
(emphasis added); Ohio Valley Envtl. Coal. Inc. v. Pocahontas Land Corp., No. 3:14-11333, 2015 WL 2144905,
at *8 (S.D. W.Va. May 7, 2015) (a “[d]efendant may be
required to seek a[n] NPDES permit even if groundwater is somehow hydrologically connected . . . to surface
waters”) (emphasis added).
Miccosukee’s approach is also supported by other
CWA provisions describing point source pollution as
27
discharges by point sources “into” navigable waters.
The provision that allows States to seek primary authority over NPDES permitting speaks to “the Governor of each State desiring to administer its own permit
program for discharges into navigable waters within
its jurisdiction.” 33 U.S.C. § 1342(b) (emphasis added).
Likewise, permitted point source discharges must
meet “effluent limitations,” which are defined as restrictions on quantities, rates, or concentrations of pollutants “discharged from point sources into navigable
waters.” Id. § 1362(11) (emphasis added). In both
cases, “into” contemplates point sources conveying or
delivering pollutants to navigable waters.
In addition, the CWA’s structure and history are
replete with indications that pollutants traveling
through groundwater should constitute nonpoint
source pollution, as they do under Miccosukee’s reading of the CWA. The terms “ground waters” or “underground waters” appear in at least 12 sections of the
CWA, such as the provisions concerning identification
of nonpoint source pollution, id. § 1314(f ), and provisions relating to monitoring groundwater and technical assistance and grants to States, e.g., id.
§§ 1252(a), 1254(a)(5), 1256(e)(1). But those terms do
not appear in the provisions concerning NPDES permitting, which refer only to point sources and navigable waters. See Loughrin v. United States, 134 S. Ct.
2384, 2390 (2014) (“[W]hen Congress includes particular language in one section of a statute but omits it in
another[,] . . . this Court presumes that Congress intended a difference in meaning.”) (internal quotation
28
marks and citation omitted). And as noted above (supra pp. 9-10), Congress specifically considered and rejected several proposals to extend NPDES permitting
to groundwater that carries pollutants to navigable
waters.
Consistent with all of this, there are numerous
other regulatory programs that address nonpoint
source pollution, including groundwater pollution and
its effects on navigable waters. For example, the CWA
directs States to adopt EPA approved programs “for
controlling pollution added from nonpoint sources to
the navigable waters within the State and improving
the quality of such waters.” 33 U.S.C. § 1329(b)(1).
Every State has such programs. See EPA, Contacts for
Nonpoint Source (NPS) Pollution Programs, State
Contacts.5 In Hawai‘i, that program includes plans
specifically concerning groundwater quality, monitoring, and protection. See generally Hawai‘i’s Nonpoint
Source Management Plan. Furthermore, as in many
other states, the pollution and quality of groundwater
is within Hawai‘i’s jurisdiction. Haw. Rev. Stat.
§§ 174C-3, 174C-4.
At the federal level, Congress has enacted several
laws addressing groundwater pollution. As mentioned,
the SDWA controls UIC wells like those at issue here
and protects underground drinking water supplies.
42 U.S.C. §§ 300h-300h-8. Similarly, the Coastal Zone
Act specifically addresses coastal nonpoint source
5
www.epa.gov/nps/state-contacts-nps-programs (last visited
Aug. 17, 2018).
29
pollution, with Hawai‘i’s plan uniquely focused on
West Maui. 16 U.S.C. § 1455b; Hawai‘i’s Nonpoint
Source Management Plan. RCRA’s control and remediation of groundwater contamination includes coal ash
impoundments, 40 C.F.R. §§ 257.90 et seq., which are
the subject of several cases like this one seeking to expand CWA point source jurisdiction.6 And CERCLA addresses hazardous substances released into the
“environment,” a term that expressly includes groundwater. 42 U.S.C. § 9601(8).
Thus, even if the Ninth Circuit’s expansion of
NPDES permitting was not plainly at odds with the
statute’s text, structure, and history, it is wrong because it upsets the existing federal-state framework
for regulating groundwater. In Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers,
531 U.S. 159, 174 (2001), this Court cautioned against
reading the CWA in a way that would “readjust the
federal-state balance” absent a “clear statement from
Congress.” There is nothing in the CWA that comes
close to a clear indication that Congress intended the
Ninth Circuit’s expansive approach to NPDES permitting. Rather, the CWA history and text show the opposite. As explained above (supra pp. 7-10), Congress
intentionally left groundwater regulation to the states.
This is reflected in “the policy of the Congress to recognize, preserve, and protect the primary responsibilities
6
See Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115 (6th Cir.
filed Feb. 1, 2018); Tenn. Clean Water Network v. Tenn. Valley
Auth., No. 17-6155 (6th Cir. filed Oct. 3, 2017); Sierra Club v. Va.
Elec. & Power Co., No. 17-1895 (4th Cir. filed Aug. 2, 2017).
30
and rights of States to prevent, reduce, and eliminate
pollution . . . of land and water resources.” 33 U.S.C.
§ 1251(b).
Finally, in contrast to Miccosukee, the Ninth Circuit’s approach runs headlong into the concerns this
Court has expressed about the reach and scope of the
CWA. As Justice Kennedy wrote in U.S. Army Corps of
Engineers v. Hawkes Co., “the reach and systemic consequences of the Clean Water Act remain a cause for
concern.” 136 S. Ct. 1807, 1816 (2016) (Kennedy, J.,
concurring). In addition to being faithful to the Act’s
text and history, the Miccosukee approach provides a
bright-line test that provides much-needed certainty to
NPDES permitting. The Ninth Circuit’s traceability
rule does the opposite, leaving regulated entities and
regulators “ ‘to feel their way on a case-by-case basis.’ ”
Sackett v. EPA, 566 U.S. 120, 124 (2012) (quoting Rapanos, 547 U.S. at 758 (Roberts, C.J., concurring)).
Indeed, it is difficult to picture how permits will be
written in many circumstances that fall within the
Ninth Circuit’s rule, including those in this case.
Among many questions, where should the discharge be
measured for compliance with effluent limitations? At
injection, or where the pollutants eventually enter
navigable waters? In this case, the pollutant levels
vary significantly after effluent leaves the wells and
interacts with the groundwater. If monitoring is to occur where the pollutants eventually enter navigable
waters, what is to be done if a consistent and discrete
point of discharge is not known? Again, this case is illustrative. With more than 90% of the flow estimated
31
to enter the ocean as diffuse flow, its point of entry is,
practically speaking, unknown.
Nor does adherence to the bright line between
point and nonpoint source pollution make a “mockery”
of the CWA and allow uncontrolled pollution, as the
Ninth Circuit feared. App. 31. Nonpoint source pollution remains fully subject to control under state nonpoint source management programs, and a panoply of
other environmental programs, as Congress intended.
A polluter therefore cannot, contrary to the Ninth Circuit’s fear if the CWA’s distinction between point and
nonpoint source pollution is followed, simply pull back
its pipe from the edge of navigable water and freely release pollutants into the environment.
II.
The Ninth Circuit’s Vast Expansion Of A
Federal Permitting Regime Is Akin To
That Reversed By This Court In UARG.
The Ninth Circuit’s novel reading of the CWA exponentially subjects States, localities, Tribes, and millions of property owners to new liability and the
prospect of crippling fines for activities that have long
been regulated under other state and federal programs. Consider just the Class V wells at issue in this
case. EPA estimates there are 650,000 such wells in
the country. Supra note 1. Municipalities commonly
use these wells to dispose of treated wastewater. Businesses use them too. NPDES permits have not been required for these wells in the nearly half century of the
CWA’s existence. Now, the public and private owners of
32
these wells and state regulators face the arduous and
expensive prospect of NPDES permitting for them. See
Hawkes, 136 S. Ct. at 1815 (noting that NPDES permitting process “can be arduous, expensive, and long”).
It is not just owners and operators of UIC wells
that face new CWA liability. Widespread methods of
wastewater disposal add pollutants that are “fairly
traceable” through groundwater to navigable waters.
Also implicated are groundwater recharge systems
and other green infrastructure projects that collect
stormwater or recycled water and use it to augment
public groundwater supplies. See, e.g., EPA, Guidelines
for Water Reuse, EPA/600/R-12/618 (Sept. 2012), Chapter 3 (discussing various types of water reuse).7 Those
systems introduce pollutants that also could make
their way in a “fairly traceable” manner to navigable
waters through groundwater.
These systems are widely used, due in part to
EPA’s efforts promoting them as environmentally
friendly water and waste disposal methods. See EPA,
National Management Measures to Control Nonpoint
Source Pollution from Urban Areas, at Management
Measure 5, EPA-841-B-05-004 (Nov. 2005);8 EPA Guidelines for Water Reuse. Entities developed water and
wastewater systems employing those systems. Regulatory agencies have not required NPDES permits for
7
Hereafter “EPA Guidelines for Water Reuse,” https://nepis.
epa.gov/Exe/ZyPURL.cgi?Dockey=P100FS7K.TXT.
8
https://www.epa.gov/sites/production/files/2015-09/documents/
urban_guidance_0.pdf.
33
these nonpoint sources. E.g., Hawai‘i’s Nonpoint
Source Management Plan, at 11-12. But now these
entities face crippling costs in penalties and remedies
in citizen suits for doing precisely what EPA encouraged.
Homeowners, too, will be impacted. More than 22
million homes in the country use septic tank systems.
See U.S. Department of Housing and Urban Development and U.S. Census Bureau, American Housing Survey for the United States: 2011, at 14, Table C-04-AO,
H150/11 (Sept. 2013).9 In Hawai‘i alone, there are
roughly 21,000 septic systems and 88,000 cesspools
covered under the State’s Nonpoint Source Plan. Hawai‘i’s Nonpoint Source Management Plan, at 12.
These systems release pollutants into groundwater
that in many cases migrate to navigable waters. The
Ninth Circuit’s reading of the CWA applies equally to
them as to industrial operations.
Finally, it is not just the disposal of pollutants to
navigable waters via groundwater that is newly swept
into NPDES point source permitting. Under the Ninth
Circuit’s rule, any activity causing pollutants to reach
navigable waters could be subject to NPDES permitting—so long as the pollutants are fairly traceable to a
point source and reach navigable waters in more than
de minimis amounts. The possibilities are limitless
when one considers the numerous ways pollutants
could end up on or in the ground and then transported
9
html.
https://www.census.gov/library/publications/2013/demo/h150-11.
34
to navigable waters by rainfall, snowmelt, or percolation to groundwater (e.g., gas that leaks from nozzles
at gas stations; rain that percolates through municipal
road salt storage yards; irrigation water on golf courses
and farm fields; storm water detention basins; vehicles
dripping oil on roads). As one court explained:
[N]on-point-source pollution . . . could invariably be reformulated as point-source pollution
by going up the causal chain to identify the
initial point sources of the pollutants that
eventually ended up through nonpoint
sources to come to rest in navigable waters.
26 Crown Assocs., 2017 WL 2960506, at *8. Pollutants
could even be carried by wind through the air from a
point source to navigable waters.
These cascading concerns about the Ninth Circuit’s decision are not hypothetical. Purporting to follow the Ninth Circuit, the Fourth Circuit recently
concluded that an NPDES permit was required for pollutants that seeped into groundwater from a pipeline
spill and traveled to navigable waters. Kinder Morgan,
887 F.3d at 652-53. Several other appeals courts are
currently considering a variety of factual applications
to which the Ninth Circuit’s test might apply.10 One citizen suit claimed NPDES permits were required for all
septic tanks in Cape Cod. Conservation Law Found.,
Inc. v. EPA, 964 F. Supp. 2d 175 (D. Mass. 2013). And
10
See supra note 6 and 26 Crown Street Assocs., LLC v.
Greater New Haven Reg’l Water Pollution Control Auth., No. 172426 (2d Cir. filed Aug. 4, 2017).
35
recent CWA notices of intent to file citizen suits for
groundwater pollution caused by industrial air emissions and resort septic systems seek to follow and expand on the Ninth Circuit’s rationale.11 Excluding
facilities operating under general NPDES permits
(e.g., industrial stormwater permits) and tribal permits, there are 137,455 facilities operating under
NPDES permits nationwide. EPA, NPDES Permit Status Reports, FY 2017 Non-Tribal Backlog Summary
Report.12 The Ninth Circuit’s test would increase that
number by several orders of magnitude.
This is precisely the problem that led this Court to
reverse in UARG. There, EPA proposed a Clean Air Act
interpretation that would have caused one category of
permits to jump from about 800 to nearly 82,000, and
another category of permits to jump from fewer than
15,000 to about 6.1 million. This Court found that interpretation unreasonable “because it would bring
about an enormous and transformative expansion in
EPA’s regulatory authority without clear congressional authorization.” 134 S. Ct. at 2444. So, too, here.
This Court should grant certiorari and similarly reject
the purported “discover[y] in a long-extant statute an
unheralded power to regulate a significant portion of
11
Letter from Heather A. Govern, Esq., Conservation Law
Foundation, to James Apteker, CEO, Longwood Venues and Destinations, Inc., et al. (June 21, 2018) (on file with author); Letter
from Heather A. Govern, Esq., Conservation Law Foundation, to
Mark J. Novota, Managing Partner, Wequassett Inn LLP, et al.
(June 21, 2018) (on file with author).
12
https://www.epa.gov/npdes/npdes-permit-status-reports
(last visited Aug. 17, 2018).
36
the American economy.” Ibid. (internal quotation marks
omitted).
III. The Ninth Circuit’s Ruling On Fair Notice
Is Directly At Odds With This Court’s Ruling In FCC v. Fox Television Stations.
Independent of whether the Ninth Circuit’s rule is
a permissible interpretation of NPDES point source
permitting, this Court should grant certiorari because
the County did not have fair notice an NPDES permit
was required under a straightforward application of
FCC v. Fox Television Stations, Inc., 567 U.S. 239
(2012).
In Fox, this Court set aside two orders of the Federal Communications Commission because they failed
to give “fair notice prior to the broadcasts in question
that fleeting expletives and momentary nudity could
be found actionably indecent.” Id. at 258. “A fundamental principle in our legal system,” this Court explained,
“is that laws which regulate persons or entities must
give fair notice of conduct that is forbidden or required.” Id. at 253. That raises two due process concerns: first, “regulated parties should know what is
required of them so they may act accordingly”; and second, “precision and guidance are necessary so that
those enforcing the law do not act in an arbitrary or
discriminatory way.” Ibid. This Court found both concerns implicated because the FCC regulations were
unclear on their face and, independently, “the lengthy
37
procedural history . . . show[ed] that the broadcasters
did not have fair notice.” Id. at 254.
Both elements of Fox exist here. First, contrary to
the Ninth Circuit’s assertion, the County’s actions do
not “fall squarely” within the plain language of the
statute. As discussed above, this Court’s opinion in
Miccosukee shows that the statutory language “makes
plain” that an NPDES permit is not needed here because a point source did not “convey the pollutant to
‘navigable waters.’ ” 541 U.S. at 105 (emphasis added).
At the very least, however, the differing interpretations reflected in Miccosukee and the Ninth Circuit’s
decision (as well as the several other interpretations
offered in this case, see supra pp. 25-26) establish that
the County did not “know what is required of them so
[it could] act accordingly.” Fox, 567 U.S. at 253; see also
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)
(“[A] statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of
due process of law”).
Second, just as in Fox, a long regulatory history
independently shows that the County did not have fair
notice. The County built its facility relying on UIC
wells for effluent disposal with HDOH’s authorization,
as well as EPA funding. For almost 40 years, these
agencies maintained UIC permits were the proper
mechanism to regulate well disposal. When explicitly
asked, HDOH said NPDES permits were inapplicable
because effluent was disposed into groundwater, not
38
discharged into navigable waters, and that the district
court’s ruling was unprecedented. EPA issued UIC permits for the facility’s operation, and brought a countywide CWA enforcement action without raising NPDES
concerns for the wells. After the litigation commenced,
EPA refused to answer whether an NPDES permit was
required, explicitly stating that it preferred to remain
on the “sideline.” App. 149. EPA only took a position
after the district court ruled.
The Ninth Circuit puts great weight on a statement by HDOH in April 2014 that, in its view, shows
HDOH had not “solidified its position” on whether an
NPDES permit was required. App. 30. But that statement arose after this litigation began and was further
undercut by HDOH’s equivocation in May 2015, and
therefore cannot possibly have provided the County
fair notice. Equally important, this Court in Fox rejected the government’s reliance on a statement in
which the FCC had suggested that “televising of nudes
might well raise a serious question of programming
contrary to 18 U.S.C. § 1464.” 567 U.S. at 256 (internal
quotation marks and citation omitted). Like in Fox, an
equivocal, “isolated[,] and ambiguous statement” is not
sufficient to provide the fair notice required by due
process. Ibid.
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39
CONCLUSION
The Petition for Certiorari should be granted.
Respectfully submitted,
COUNTY OF MAUI
PATRICK K. WONG
RICHELLE M. THOMSON
200 South High Street
Wailuku, Maui, Hawai‘i 96793
Phone: (808) 270-7740
HUNTON ANDREWS KURTH LLP
MICHAEL R. SHEBELSKIE
Counsel of Record
ELBERT LIN
951 East Byrd Street,
East Tower
Richmond, Virginia 23219
mshebelskie@HuntonAK.com
Phone: (804) 788-8200
COLLEEN P. DOYLE
DIANA PFEFFER MARTIN
550 South Hope Street,
Suite 2000
Los Angeles, California 90071
Phone: (213) 532-2000
August 27, 2018
Counsel for Petitioner
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.