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

Supreme Court briefOct 23, 2018

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No. 18-260

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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 Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------RESPONDENTS’ BRIEF IN OPPOSITION

-----------------------------------------------------------------EARTHJUSTICE

DAVID L. HENKIN

Counsel of Record

850 Richards Street, Suite 400

Honolulu, Hawai‘i 96813

Phone: (808) 599-2436

dhenkin@earthjustice.org

October 23, 2018

Counsel for Respondents

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

The questions presented are:

1. Whether the Ninth Circuit correctly held that

Clean Water Act (CWA) liability may attach when a

point source discharges pollutants to navigable water

via a groundwater pathway that is the functional

equivalent of a direct discharge to navigable waters.

2. Whether Petitioner County of Maui had fair

notice that unpermitted discharges from its Lahaina

injection wells violate the CWA where the statute’s

plain language prohibits the “addition of any pollutant

to navigable waters” from any point source without a

National Pollutant Discharge Elimination System permit, 33 U.S.C. § 1362(12)(A), and the Environmental

Protection Agency consistently stated for decades that

point source discharges to groundwater that are “effectively” discharges to navigable waters require such

permits. 56 Fed. Reg. 64,876, 64,892 (Dec. 12, 1991).

RULE 29.6 STATEMENT

Respondents Hawai‘i Wildlife Fund, Surfrider Foundation and West Maui Preservation Association are

nonprofit organizations that have no parent corporations, and no publicly-held company has any ownership interest in them.

Respondent Sierra Club – Maui Group is part of

the Sierra Club, which is a nonprofit organization that

has no parent corporation, and no publicly-held company has any ownership interest in it.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................

RULE 29.6 STATEMENT ......................................

TABLE OF CONTENTS ........................................

iii

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

INTRODUCTION ...................................................

STATEMENT OF THE CASE ................................

II.

STATUTORY BACKGROUND ...................

A. NPDES Permit Requirement for Point

Sources ...................................................

B. Point Source vs. Nonpoint Source .........

C. Discharges Via Groundwater ................

FACTUAL BACKGROUND ........................

A. Petitioner’s Injection Wells ...................

B. Petitioner Had Ample Notice Its Unpermitted Discharges Could Subject It to

CWA Liability and Penalties................. 10

III.

PROCEEDINGS BELOW ............................

REASONS FOR DENYING THE WRIT ................

I. THE NINTH CIRCUIT FAITHFULLY APPLIED THIS COURT’S PRECEDENTS,

AND PETITIONER’S CLAIMS OF INTERCIRCUIT CONFLICT ARE PREMATURE

AT BEST ...................................................... 13

A. There Is No Conflict With This Court’s

Decisions ................................................ 13

TABLE OF CONTENTS – Continued

Page

B. The Court Should Allow the Law in the

Circuits to Develop Further Before Deciding Whether Review Is Appropriate ....... 16

II.

THE PENDENCY OF EPA REVIEW COUNSELS AGAINST GRANTING THE WRIT.... 24

III.

THE NINTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE CWA’S STATUTORY LANGUAGE AND POLICIES ......... 25

IV.

THE NINTH CIRCUIT’S DECISION DOES

NOT EXPAND THE CWA’S REGULATORY

REGIME ....................................................... 31

IN CONCLUDING PETITIONER HAD FAIR

NOTICE, THE NINTH CIRCUIT APPLIED

THE CORRECT LEGAL STANDARD ........ 35

CONCLUSION .......................................................

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Am. Iron & Steel Inst. v. Envt’l Prot. Agency, 115

F.3d 979 (D.C. Cir. 1997) ...........................................5

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 273 F.3d 481 (2d Cir.

2001) ........................................................................19

Chevron U.S.A., Inc. v. Natural Resources Def.

Council, 467 U.S. 837 (1984) ...................................24

Concerned Area Residents for Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) ........ 14, 15, 19

Cordiano v. Metacon Gun Club, Inc., 575 F.3d

199 (2d Cir. 2009) ....................................................19

Envt’l Prot. Agency v. Cal. ex rel. State Water Resources

Control Bd., 426 U.S. 200 (1976)............. 5, 26, 27, 29

FCC v. Fox Television Stations, Inc., 567 U.S. 239

(2012) ................................................................. 35, 37

FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000) ........................................................33

Hernandez v. Esso Standard Oil Co., 599

F. Supp. 2d 175 (D. P.R. 2009) .................................22

Hudson River Fishermen’s Ass’n v. City of New

York, 751 F. Supp. 1088 (S.D.N.Y. 1990) .................27

Idaho Rural Council v. Bosma, 143 F. Supp. 2d

1169 (D. Idaho 2001) ......................................... 22, 33

Ky. Waterways All. v. Ky. Utils. Co., No. 18-5115,

2018 WL 4559315 (6th Cir. Sept. 24, 2018) .... 1, 17, 18

TABLE OF AUTHORITIES – Continued

Page

League of Wilderness Defenders v. Forsgren, 309

F.3d 1181 (9th Cir. 2002) ..................................... 6, 26

Milwaukee v. Illinois, 451 U.S. 304 (1981) ......... 4, 5, 25

Nat’l Wildlife Fed’n v. U.S. Army Corps of Engineers, 384 F.3d 1163 (9th Cir. 2004) .......................11

Peconic Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d

180 (2d Cir. 2010) .............................................. 19, 20

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

Rice v. Harken Expl. Co., 250 F.3d 264 (5th Cir.

2001) ........................................................................21

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

541 U.S. 95 (2004) ........................................... passim

Sierra Club v. Abston Construction Co., 620 F.2d

41 (5th Cir. 1980)........................................... 7, 20, 21

Sierra Club v. Colorado Ref. Co., 838 F. Supp.

1428 (D. Colo. 1993) ................................................23

Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d

1140 (10th Cir. 2005) ...............................................26

Sierra Club v. Va. Elec. & Power Co., No. 17-1895,

2018 WL 4343513 (4th Cir. Sept. 12, 2018) ............... 23

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159

(2001) ................................................................. 28, 29

Tenn. Clean Water Network v. Tenn. Valley Auth.,

No. 17-6155, 2018 WL 4559103 (6th Cir. Sept.

24, 2018) ........................................................ 2, 17, 18

vii

TABLE OF AUTHORITIES – Continued

Page

Trs. for Alaska v. Envt’l Prot. Agency, 749 F.2d

549 (9th Cir. 1984) .....................................................6

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

368 (10th Cir. 1979) ......................................... 6, 7, 26

Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) ........... passim

Util. Air Regulatory Grp. v. Envtl. Prot. Agency,

134 S. Ct. 2427 (2014) ................................. 31, 32, 33

Vill. of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962 (7th Cir. 1994) ..................... 21, 22

Wash. Wilderness Coal. v. Hecla Mining Co., 870

F. Supp. 983 (E.D. Wash. 1994) ...............................22

Williams Pipe Line Co. v. Bayer Corp., 964

F. Supp. 1300 (S.D. Iowa 1997) ...............................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) .......................... 2, 18

FEDERAL STATUTES

16 U.S.C. § 1456(f ) ......................................................28

33 U.S.C. § 1251(a) .................................................. 4, 25

33 U.S.C. § 1251(b) ......................................................29

33 U.S.C. § 1252(a) ......................................................27

33 U.S.C. § 1254(a)(5) .................................................27

viii

TABLE OF AUTHORITIES – Continued

Page

33 U.S.C. § 1256(e)(1) ..................................................27

33 U.S.C. § 1311(a) ........................................ 2, 4, 14, 23

33 U.S.C. § 1314(f )(2)(F) ......................................... 7, 27

33 U.S.C. § 1318(a)(A) .................................................10

33 U.S.C. § 1319(d) ......................................................37

33 U.S.C. § 1342(a)(1) ...................................................5

33 U.S.C. § 1342(b) ................................................ 26, 29

33 U.S.C. § 1362(7) .................................................... 5, 8

33 U.S.C. § 1362(8) .................................................... 5, 8

33 U.S.C. § 1362(11) ....................................................26

33 U.S.C. § 1362(12) ......................................................4

33 U.S.C. § 1362(12)(A) ..................................... 2, 14, 26

33 U.S.C. § 1362(14) ............................................ 5, 8, 19

42 U.S.C. § 6905(a) ......................................................28

42 U.S.C. § 9652(d) ......................................................28

LEGISLATIVE HISTORY

133 Cong. Rec. 1,279 (1987) ..........................................6

Water Pollution Control Legislation–1971 (Proposed Amendments to Existing Legislation):

Hearings Before the H. Comm. On Public

Works, 92nd Cong. (1971) .........................................7

TABLE OF AUTHORITIES – Continued

Page

FEDERAL REGULATIONS

40 C.F.R. § 19.4, tbl. 1 (2017) ......................................37

FEDERAL REGISTER

39 Fed. Reg. 43,759 (Dec. 18, 1974) ............................29

56 Fed. Reg. 64,876 (Dec. 12, 1991) .............. 3, 8, 22, 32

62 Fed. Reg. 20,177 (Apr. 25, 1997) ............................32

63 Fed. Reg. 7,858 (Feb. 17, 1998) ..............................32

66 Fed. Reg. 2,960 (Jan. 12, 2001) .... 7, 8, 23, 26, 32, 33

67 Fed. Reg. 39,584 (June 7, 2002) .............................28

68 Fed. Reg. 7,176 (Feb. 12, 2003) ..............................32

83 Fed. Reg. 7,126 (Feb. 20, 2018) .......................... 2, 24

COURT RULES

6th Cir. R. 35(b) ...........................................................17

Sup. Ct. R. 10 ..............................................................35

Sup. Ct. R. 10(a) ..........................................................23

Sup. Ct. R. 10(c) .................................................... 16, 23

OTHER AUTHORITIES

Colo. Dep’t of Pub. Health and Env’t, Fact Sheet

for CDPS Permit No. CO-0041351 (Jan. 26, 2012),

https://environmentalrecords.colorado.gov/HPRM

WebDrawer/Record237726/File/Document............ 30, 34

TABLE OF AUTHORITIES – Continued

Page

EPA, Clean Water Rule Response to Comments

– Topic 10: Legal Analysis (June 30, 2015),

https://www.epa.gov/sites/production/files/201506/documents/cwr_response_to_comments_10_

legal.pdf ....................................................... 29, 30, 32

EPA, NPDES Permit Status Reports, FY 2017

Non-Tribal Permits Detailed Percent Current

Status, https://www.epa.gov/npdes/npdes-permitstatus-reports ..........................................................35

EPA Region 5, NPDES Permit No. WI-00730592 (Sept. 22, 2016), https://www.epa.gov/sites/

production/files/2017-02/documents/wi0073059f

nlprmt09_22_2016_0.pdf .................................. 30, 34

EPA Region 6, NPDES Permit No. NMG010000

(July 14, 2016), https://www.env.nm.gov/wp-content/

uploads/2017/07/NMG010000-CAFO-NM-20160

901.pdf ............................................................... 29, 32

EPA Region 10, NPDES Permit No. WA0023434

(June 4, 2015), https://www.epa.gov/sites/production/

files/2017-09/documents/r10-npdes-taholah-wa

0023434-final-permit-2015.pdf .......................... 30, 34

EPA Region 10, NPDES Permit No. WA0023434

Fact Sheet (Apr. 21, 2015), https://www.epa.gov/

sites/production/files/2017-09/documents/r10npdes-taholah-wa0023434-fact-sheet-2015.pdf .........30

Hawai‘i Dep’t of Health, Hawai‘i’s Nonpoint Source

Management Plan (2015-2020), http://health.

hawaii.gov/cwb/files/2013/05/2015-Hawaii-NPSManagement-Plan.pdf .............................................28

INTRODUCTION

Petitioner County of Maui seeks review of a

decision of the United States Court of Appeals for the

Ninth Circuit that the discharge of millions of gallons

of treated sewage each day from Petitioner’s injection

wells, which reaches the Pacific Ocean via groundwater, requires a permit under the Clean Water Act’s

(CWA’s) National Pollutant Discharge Elimination

System (NPDES) program. Petitioner offers no genuine reason for intervention by this Court. The Ninth

Circuit’s unanimous decision does not conflict with any

decision of this Court and follows the construction of

the CWA adopted by Justice Scalia’s plurality opinion

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

(Scalia, J., joined by Roberts, C.J., and Thomas and

Alito, JJ.). Not a single Ninth Circuit judge voted to

grant Petitioner’s request for en banc review, and the

only other court of appeals with settled law regarding

this issue agrees with the result of the challenged decision. See Upstate Forever v. Kinder Morgan Energy

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

cert. filed, 87 U.S.L.W. 3069 (U.S. Aug. 28, 2018) (No.

18-268).

Although two very recent decisions of the Sixth

Circuit rejected Justice Scalia’s statement in Rapanos

that the relevant CWA provision is not limited to point

sources that discharge directly into navigable waters,

547 U.S. at 743, rehearing petitions are pending in

both cases, and the issue thus has not been definitively

resolved in that court. Ky. Waterways All. v. Ky. Utils.

Co., No. 18-5115, 2018 WL 4559315 (6th Cir. Sept. 24,

2018), petition for rhrg. en banc filed (Oct. 9, 2018);

Tenn. Clean Water Network v. Tenn. Valley Auth., No.

17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018)

(“TCWN”), petition for rhrg. en banc filed (Oct. 22,

2018). At least one other circuit has a pending case involving point source discharges via groundwater, presenting later opportunities for this Court to consider

taking review in the event that one or more circuits

ultimately settle on a conflicting view. See 26 Crown

St. Assocs., LLC v. Greater New Haven Reg’l Water Pollution Control Auth., No. 17-2426 (2d Cir. filed Aug. 4,

2017). The Environmental Protection Agency’s (EPA’s)

recent announcement that it may provide additional

guidance on the circumstances under which point

source discharges via groundwater require NPDES

permits further militates against granting certiorari.

See 83 Fed. Reg. 7,126, 7,128 (Feb. 20, 2018).

Far from being a “radical expansion of point source

permitting,” Pet. 3, the Ninth Circuit’s decision follows

the Rapanos plurality’s recognition that the CWA’s

plain language broadly forbids all unpermitted point

source discharges “to navigable waters,” not just discharges that are “directly to navigable waters.” Id. at

743 (quoting 33 U.S.C. § 1362(12)(A); citing 33 U.S.C.

§ 1311(a)). The challenged ruling also accords with decades of lower court decisions and EPA practice affirming that the NPDES program regulates point source

discharges to navigable waters via groundwater. As

EPA explained nearly thirty years ago, “the affected

groundwaters are not considered ‘waters of the United

States’ but discharges to them are regulated because such

discharges are effectively discharges to the directly

connected surface waters.” 56 Fed. Reg. 64,876, 64,892

(Dec. 12, 1991). In the decades since, EPA and states

administering the NPDES program have routinely issued permits for indirect discharges via groundwater.

There is no basis for Petitioner’s alarmist claim

the Ninth Circuit’s decision sweeps millions of new

sources into the NPDES program. Nothing has changed

from the decades-old practice of considering the specific facts of each case to determine if a point source

discharge via groundwater “is the functional equivalent of a discharge into the navigable water.” Pet. App.

24.

Here, Petitioner intentionally designed its Lahaina

Wastewater Reclamation Facility to dispose of treated

sewage into the Pacific Ocean via the groundwater

underlying the facility. EPA’s tracer dye study established conclusively that, each day, Petitioner’s four injection wells (undisputedly point sources) discharge

millions of gallons of treated sewage (undisputedly

pollutants) into the Pacific Ocean (undisputedly navigable waters) via the groundwater into which the

wells directly inject. As the Ninth Circuit correctly

stated:

At bottom, this case is about preventing the

County from doing indirectly that which it

cannot do directly. The County could not under the CWA build an ocean outfall to dispose

of pollutants directly into the Pacific Ocean

without an NPDES permit. It cannot do so indirectly either to avoid CWA liability. To hold

otherwise would make a mockery of the

CWA’s prohibitions.

Pet. App. 31.

Petitioner also challenges the Ninth Circuit’s conclusion that Petitioner had fair notice its unpermitted

discharges violate the CWA. Petitioner’s fact bound—

and factually and legally erroneous—claim that the

Ninth Circuit misapplied settled law in this regard

does not warrant this Court’s review.

------------------------------------------------------------------

STATEMENT OF THE CASE

STATUTORY BACKGROUND

Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of

the Nation’s waters.” 33 U.S.C. § 1251(a). “Congress’ intent in enacting the [CWA] was clearly to establish an

all-encompassing program of water pollution regulation.” Milwaukee v. Illinois, 451 U.S. 304, 318 (1981).

A. NPDES Permit Requirement for Point

Sources

To further Congress’ central goal, CWA section

301(a) mandates that “the discharge of any pollutant

by any person shall be unlawful.” 33 U.S.C. § 1311(a).

The Act broadly defines “discharge of a pollutant” to

include “any addition of any pollutant to navigable

waters from any point source.” Id. § 1362(12). “The

term ‘point source’ means any discernible, confined

and discrete conveyance . . . from which pollutants

are or may be discharged,” including any “well.” Id.

§ 1362(14). “The term ‘navigable waters’ means the

waters of the United States, including the territorial

seas.” Id. § 1362(7); see also id. § 1362(8).

CWA section 402 provides an exception to section

301(a)’s general prohibition through the issuance of an

NPDES permit “for the discharge of any pollutant or

combination of pollutants.” Id. § 1342(a)(1). This Court

has emphasized that “[e]very point source discharge is

prohibited unless covered by a permit, which directly

subjects the discharger to the administrative apparatus established by Congress to achieve its goals.”

Milwaukee, 451 U.S. at 318 (footnote omitted).

NPDES permitting is key to achieving Congress’

goal to “abate and control water pollution.” Envt’l Prot.

Agency v. Cal. ex rel. State Water Resources Control

Bd., 426 U.S. 200, 204 (1976); see also Am. Iron &

Steel Inst. v. Envt’l Prot. Agency, 115 F.3d 979, 990 (D.C.

Cir. 1997) (NPDES permitting is CWA’s “centerpiece”).

“An NPDES permit serves to transform generally

applicable effluent limitations and other standards

including those based on water quality into the obligations . . . of the individual discharger” and makes those

obligations enforceable. Envt’l Prot. Agency, 426 U.S. at

205.

B. Point Source vs. Nonpoint Source

When Congress amended the CWA in 1987 to

address nonpoint source pollution, it reaffirmed the

importance of NPDES permitting, emphasizing the

nonpoint source program was neither “a substitute for

the point source programs already in place under the

act” nor “an excuse to reduce the effort or relax the requirements on the point source side.” 133 Cong. Rec.

1,279 (1987).

While the Act does not define the term “nonpoint

source pollution,” courts generally agree it “arises from

many dispersed activities over large areas,” “is not

traceable to any single discrete source,” and, due to its

“diffuse” nature, “is very difficult to regulate through

individual permits.” League of Wilderness Defenders v.

Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002); see also

United States v. Earth Sciences, Inc., 599 F.2d 368, 373

(10th Cir. 1979). “The most common example of nonpoint source pollution is the residue left on roadways

by automobiles,” which rainwater “wash[es] off . . . the

streets and . . . carrie[s] along by runoff in a polluted

soup [to] creeks, rivers, bays, and the ocean.” League of

Wilderness Defenders, 309 F.3d at 1184.

Point and nonpoint sources are not distinguished

by the types of pollution they create or by the activities

causing the pollution, but, rather, by whether or not

they discharge pollutants from “an identifiable conveyance” or “point.” Earth Sciences, 599 F.2d at 373. If activities otherwise associated with nonpoint source

pollution “release pollutants from a discernible conveyance, they are subject to NPDES regulation, as are all

point sources.” Trs. for Alaska v. Envt’l Prot. Agency,

749 F.2d 549, 558 (9th Cir. 1984); see also S. Fla. Water

Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 106 (2004)

(33 U.S.C. § 1314(f )(2)(F), “which concerns nonpoint

sources, . . . does not explicitly exempt nonpoint pollution sources from the NPDES program if they also

fall within the ‘point source’ definition”); Earth Sciences, 599 F.2d at 373 (activities “listed in § 1314(f )(2)

may involve discharges from both point and nonpoint

sources, and those from point sources are subject to

[NPDES] regulation”); Sierra Club v. Abston Construction Co., 620 F.2d 41, 44 (5th Cir. 1980) (same).

C. Discharges Via Groundwater

In enacting the CWA, Congress did not, as Petitioner claims, ignore EPA’s testimony that harm to surface waters can occur when “sources of pollution” are

“discharged . . . through the ground water table” and

that the CWA must “insure that . . . authority over

interstate and navigable streams cannot be circumvented” if polluters dispose of “toxic wastes in deep

wells” that, “through the ground water table, might

contaminate existing water supplies.” Water Pollution

Control Legislation–1971 (Proposed Amendments to

Existing Legislation): Hearings Before the H. Comm.

On Public Works, 92nd Cong., at 230 (1971). Rather,

“Congress expressed an understanding of the hydrologic cycle and an intent to place liability on those responsible for discharges which entered the ‘navigable

waters.’ ” 66 Fed. Reg. 2,960, 3,016 (Jan. 12, 2001). Accordingly, Congress drafted the CWA’s prohibition

broadly, prohibiting all unpermitted discharges “to

navigable waters,” not just those “directly to navigable

waters.” Rapanos, 547 U.S. at 743 (citations omitted).

Given “Congress’ broad concern for the integrity

of the Nation’s waters,” interpreting the CWA to “exclude[ ] regulation of point source discharges to the waters of the U.S. which occur via ground water would . . .

be inconsistent with the overall Congressional goals

expressed in the statute.” 66 Fed. Reg. at 3,015-16.

Thus, EPA decades ago recognized that the Act cannot

be read to exclude point source discharges that reach

surface waters through groundwater where the “discharges are effectively discharges to the directly connected surface waters.” 56 Fed. Reg. at 64,892

II.

FACTUAL BACKGROUND

A. Petitioner’s Injection Wells

When Petitioner designed the Lahaina Wastewater Reclamation Facility (LWRF), it made a conscious choice to dispose of treated sewage via injection

wells rather than a deep-ocean outfall. Pet. App. 8. The

LWRF’s four injection wells are long pipes that discharge treated sewage—typically, three to five million

gallons each day—directly into the groundwater below

the facility. Pet. App. 7-8, 33-34.1 It is undisputed that

the injection wells are “point sources.” Pet. App. 13

(quoting 33 U.S.C. § 1362(14)).

There is likewise no question that treated sewage

discharged from the LWRF wells enters the Pacific

Ocean, a “navigable water.” 33 U.S.C. § 1362(7), (8).

Contrary to the claims of amici West Virginia, et al., this

case does not involve discharges into “soil that eventually migrate

to jurisdictional waters.” W. Va. Amicus Br. at i.

Since the LWRF’s inception, Petitioner has known

treated sewage discharged from the injection wells

would reach the ocean. Pet. App. 8. In 2013, an EPAfunded tracer dye study confirmed conclusively that

the LWRF’s treated sewage enters the Pacific Ocean

just offshore of Kahekili Beach in west Maui, with over

half of the injected wastewater—millions of gallons

daily—discharging into the ocean from two submarine

spring areas only several meters wide. Pet. App. 7-10,

34-35, 67.2 The massive influx of treated sewage from

Petitioner’s wells makes up “[a]bout one out of every

seven gallons of groundwater entering the ocean near

the LWRF.” Pet. App. 9. Discharges from the LWRF injection wells remain ongoing.

There is no dispute that “the discharge at the

LWRF significantly affects the physical, chemical,

and biological integrity” of the receiving ocean water.

Pet. App. 80; see also Pet. App. 78-79. In the decades

following the LWRF’s opening, nutrients and other

pollutants from injected sewage have devastated the

once-pristine coral reef at Kahekili. Appellees’ Supp.

Excerpts of Record (SER) 281-84. Hawai‘i’s Division of

Aquatic Resources reported a 40% decline in coral

cover at Kahekili from 1994 to 2006. SER 273.

The record does not support Petitioner’s claim that over

90% of the injected wastewater has “no identifiable ocean entry

point.” Pet. at 10.

B. Petitioner Had Ample Notice Its Unpermitted Discharges Could Subject It to

CWA Liability and Penalties.

Both the CWA’s plain language and the EPA’s

longstanding statutory interpretation provided Petitioner with ample notice that unpermitted discharges

from the LWRF injection wells could subject it to CWA

liability and civil penalties. Petitioner cannot claim ignorance of its potential legal exposure. Beginning in

2008, Respondents and other Maui citizens repeatedly

warned Petitioner its discharges were illegal and

risked subjecting Petitioner to civil penalties. Pet. App.

110-112; SER 43-105. These warnings, culminating in

Respondents’ notice letter, detailed many of the same

authorities on which the district court subsequently

relied to find Petitioner liable.

EPA also put Petitioner on notice that indirect discharges via groundwater violate the CWA. In January

2010, the agency issued an order for Petitioner to conduct sampling, monitoring and reporting necessary to

determine whether it was violating the CWA in connection with LWRF effluent entering the ocean from

submarine springs at Kahekili. Pet. App. 112. EPA issued its order pursuant to CWA section 308(a), which

applies to only “the owner or operator of [a] point

source.” 33 U.S.C. § 1318(a)(A).

Two months later, EPA followed up with an order

requiring Petitioner to secure a State of Hawai‘i water

quality certification pursuant to CWA section 401,

based on EPA’s determination that “operation of the

[LWRF] may result in a discharge into navigable

waters.” Pet. App. 113. EPA specified that Petitioner

would need certification that continued use of the

LWRF injection wells would not violate the CWA’s prohibition on unpermitted point source discharges. Id.

Neither Hawai‘i Department of Health (HDOH)

nor EPA ever expressed a formal agency position that

Petitioner’s injection wells do not need an NPDES permit.3 HDOH equivocated, stating in an April 2014 letter it was still “in the process of determining if an

NPDES permit is applicable.” Pet. App. 30. In January

2015, EPA expressly stated the injection wells’ continuing discharges require an NPDES permit. ER 357358.

While Petitioner places great weight on underground injection control (UIC) permits issued under

the Safe Drinking Water Act, every Hawai‘i permit expressly noted Petitioner’s obligation to comply with

Petitioner cites only informal staff comments and internal

agency correspondence, neither of which establishes “the official

view of any agency.” Nat’l Wildlife Fed’n v. U.S. Army Corps of Engineers, 384 F.3d 1163, 1174 (9th Cir. 2004).

Moreover, Petitioner improperly attaches and cites two emails

(Pet. App. 150 and Pet. App. 152) the district court refused to admit into evidence. Pet. App. 106-107. Petitioner failed to appeal

those evidentiary rulings to the Ninth Circuit.

Finally, another EPA email Petitioner excerpts and quotes

does not say EPA preferred “to watch from the ‘sideline’ ” regarding whether NPDES permitting applies. Pet. at 14 (quoting Pet.

App. 149). The “Plan A” the email discusses is Petitioner’s proposal to irrigate biofuels with LWRF wastewater; it has nothing

to do with permitting. See Appellant’s Excerpts of Record (ER)

233-234.

NPDES permit requirements. See, e.g., SER 20-22, 4042. EPA’s UIC permits similarly stated that compliance with them was not a defense to any action

brought under any other law. See, e.g., SER 15.

III. PROCEEDINGS BELOW

Respondents will not repeat the description of the

proceedings below, which, editorial comments aside,

are generally described in the petition and are set forth

in full in the opinions in the appendix.

Respondents note that, after the district court

denied Petitioner’s summary judgment motion regarding “fair notice,” the parties reached a settlement regarding the appropriate penalty for Petitioner’s CWA

violations. The parties agreed Petitioner would pay a

modest fine ($100,000) and would invest in infrastructure to divert wastewater from the LWRF injection

wells for reuse. Pet. App. 124-126 (¶¶ 9-13). The parties

agreed these commitments would be triggered by entry

of a final judgment Petitioner violated the CWA and “is

not immune from civil penalties because of a lack of

fair notice.” Pet. App. 122-123 (¶ 4); see also Pet. App.

122 (¶¶ 2-3).

------------------------------------------------------------------

REASONS FOR DENYING THE WRIT

THE NINTH CIRCUIT FAITHFULLY APPLIED THIS COURT’S PRECEDENTS, AND

PETITIONER’S CLAIMS OF INTERCIRCUIT

CONFLICT ARE PREMATURE AT BEST

A. There Is No Conflict With This Court’s

Decisions.

The Ninth Circuit’s decision accords fully with

this Court’s decisions. Petitioner focuses on Miccosukee, but that case did not address whether a discharge of pollutants from a point source to navigable

waters though groundwater requires an NPDES permit. Rather, in rejecting an argument that the NPDES

program does not apply “when pollutants originating

elsewhere merely pass through the point source,” 541

U.S. at 104, Miccosukee held that a point source that

is not “the original source of the pollutant” triggers

the NPDES requirement if the point source “convey[s]

the pollutant to ‘navigable waters.’ ” Id. at 105 (emphasis added). Miccosukee did not consider or address

whether the point source must convey the pollutant directly to the navigable waters.4

It was not until Rapanos that the Court discussed

whether the NPDES permit requirement extends to

point sources that discharge into navigable waters

While Petitioner faults the Ninth Circuit for failing to discuss Miccosukee’s “straightforward textual analysis,” Petitioner

cited the case only once, in passing, in its briefs to the panel. Pet.

at 21. Miccosukee was far from the centerpiece of Petitioner’s argument below.

through an intermediate pathway. Writing for the plurality, Justice Scalia espoused a narrower view of the

“scope of ‘navigable waters’ ” than did the other five

Justices, but vigorously denied that his interpretation

would allow polluters “to evade the permitting requirement . . . simply by discharging their pollutants into

noncovered intermittent watercourses that lie upstream of covered waters.” 547 U.S. at 742-43. Focusing

on the CWA’s plain language, the plurality emphasized

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.’ ” Id. at 743 (quoting 33 U.S.C.

§ 1362(12)(A); citing 33 U.S.C. § 1311(a). It noted:

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

lower courts have held that the discharge

into intermittent channels of any pollutant

that naturally washes downstream likely violates § 1311(a), even if the pollutants discharged from a point source do not emit

“directly into” covered waters, but pass

“through conveyances” in between.

Id. (citation omitted).

The Rapanos plurality’s observation that “many

courts have held” that the conveyances of pollutants

from a point source to covered waters “themselves constitute ‘point sources’ under the Act” reflects the plurality’s understanding that other courts have not so

held and that such a showing is not essential for CWA

liability. Id. The plurality cited with approval Concerned Area Residents for Environment v. Southview

Farm, 34 F.3d 114 (2d Cir. 1994) (“CARE”), as illustrating that liability attaches regardless of whether the

conveyance between a point source and a covered water is confined and discrete enough to qualify as a point

source. Id. at 744.5

In CARE, citizens challenged a dairy farm’s liquid

manure spreading operations. The Second Circuit held

that “[t]he collection of liquid manure into tankers and

their discharge on fields from which the manure directly flows into navigable waters are point source discharges.” 34 F.3d at 119. Regardless of whether the

fields themselves were point sources, the court held it

was sufficient for CWA liability that (1) the pollutants

were released from “point sources” (defendant’s manure spreading vehicles) onto fields and (2) the pollutants flowed off the fields into navigable waters. Id.

While the Court in Rapanos splintered on other

issues, no Justice disagreed with the plurality opinion

that the CWA holds liable polluters who discharge pollutants from a point source to navigable waters, even

if the discharge is not directly from the point source

into the navigable waters. The Ninth Circuit firmly

grounded its decision in the reasoning of the Rapanos

Here, the district court concluded the groundwater underneath the LWRF is a point source because it constitutes a discernible, confined and discrete conveyance. See Pet. App. 69-72; cf.

Ass’n of Cal. Water Agencies Amicus Br. at 16 n.5 (noting “unique

geology of Maui”). The court of appeals did not reach that issue,

Pet. App. 16 n.2, but it provides an independent basis for holding

Petitioner liable, even under Petitioner’s interpretation of the

CWA. That the same result could be reached on alternative

grounds is another reason for this Court not to take up this case.

plurality. The harmony between the Ninth Circuit’s decision and this Court’s opinions weighs strongly in favor of denying review. Sup. Ct. R. 10(c).

B. The Court Should Allow the Law in the

Circuits to Develop Further Before Deciding Whether Review Is Appropriate.

Petitioner’s allegation of a circuit split is premature. Only two courts of appeals have issued final decisions addressing whether the CWA prohibits point

source discharges to navigable waters via groundwater, unless authorized and controlled by an NPDES

permit, and both answered in the affirmative, based on

the Act’s plain language. The Ninth Circuit was the

first to so rule, in the unanimous opinion at issue in

this petition, with not a single one of the Circuit’s

judges requesting a vote on whether to rehear the matter en banc. Pet. App. 6. The Fourth Circuit followed

suit in Upstate Forever, holding that “a discharge of a

pollutant that moves through ground water before

reaching navigable waters may constitute a discharge

of a pollutant, within the meaning of the CWA.” 887

F.3d at 649.6

While there was a dissent in Upstate Forever,

all judges on the panel agreed that point source

That the two courts used different words to articulate the

legal standard does not warrant this Court’s review. The Fourth

Circuit, which had the Ninth Circuit’s decision before it when it

ruled, concluded there is “no functional difference,” and Petitioners fail to give any reason for this Court to find otherwise. Id. at

651 n.12.

discharges that reach navigable waters via groundwater require an NPDES permit. Upstate Forever involves claims that discharges of petroleum from a

leaking pipeline (unquestionably a point source) reach

navigable waters via groundwater. Id. at 643-44. Because the pipeline was repaired before the plaintiffs

filed suit, the dissent concluded the unpermitted discharges constitute “a wholly past violation” of the

CWA, against which only EPA or a state agency can

take enforcement action, rather than “an ongoing CWA

violation,” susceptible to citizen suit. Id. at 659-60

(Floyd, J., dissenting). All three judges agreed, however, on the relevant issue here: an unpermitted point

source discharge to navigable waters via groundwater

can violate the CWA.

A few weeks ago, a divided panel of the Sixth Circuit issued decisions in two cases involving discharges

from coal ash ponds, with two of the panel’s three

judges concluding the CWA does not regulate discharges from point sources to navigable waters via

groundwater. TCWN, 2018 WL 4559103, at *1; Ky. Waterways, 2018 WL 4559315, at *1. Petitions for rehearing en banc are now pending in both cases, which, if

granted, would automatically vacate the panel decisions. See 6th Cir. R. 35(b). Moreover, a grant of rehearing in either case could lead to the Sixth Circuit’s

conforming its view to that of the Fourth and Ninth

Circuits. Given that proceedings are ongoing before the

Sixth Circuit and the panel’s holdings regarding CWA

liability remain subject to change, it is premature to

conclude that the Sixth Circuit has settled on a position conflicting with the Ninth Circuit’s.

Even if the Sixth Circuit ultimately were to adhere to the rulings of the panel, review by this Court

at this time would not be warranted. In both Sixth Circuit cases, the majority strongly suggested that the

coal ash ponds were not point sources to begin with.

See Ky. Waterways All., 2018 WL 4559315, at *7 n.8;

TCWN, 2018 WL 4559103, at *5 n.6. The absence of

any point source is an independent ground for concluding no CWA liability exists, in the Ninth and Fourth

Circuits, as well as in the Sixth Circuit. See Pet. App.

13-16, 24; Upstate Forever, 887 F.3d at 649-51. As the

outcomes would be identical in all three circuits under

the specific facts as found in the Sixth Circuit cases,

there is currently no need for this Court’s intervention.

Equally importantly, any possible, future conflict

between these circuits would be of such recent vintage

that prudence dictates allowing the issue to develop

further in the lower courts before deciding whether

this Court’s review is appropriate. Allowing the issue

to percolate may permit the courts of appeals to reach

consensus, after more careful consideration of the issue. This year alone, at least one other circuit has a

pending case involving point source discharges via

groundwater, providing an additional opportunity for

development of the case law. See 26 Crown St. Assocs.,

LLC v. Greater New Haven Reg’l Water Pollution Control Auth., No. 17-2426 (2d Cir. filed Aug. 4, 2017).

None of the other court of appeals decisions Petitioner cites establishes a circuit split. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009), the

only post-Rapanos decision Petitioner discusses, is easily distinguished.7 The Second Circuit declined to find

a point source discharge in Cordiano because “there is

no evidence that the surface water runoff from the

berm containing lead is in anyway channeled or collected” or that “airborne lead moves by any ‘discernible, confined and discrete conveyance.’ ” 575 F.3d at 224

(quoting 33 U.S.C. § 1362(14)). Accordingly, the court

concluded that, “[e]ven assuming the berm is an identifiable source” of lead pollution, it does not meet the

definition of a “point source.” Id. In contrast, here, it is

undisputed the LWRF injection wells are point sources

that channel and collect treated sewage before discharging it into groundwater that conveys pollutants

to the ocean.

Far from conflicting with the Ninth Circuit, Cordiano expressly reaffirms the Second Circuit’s holding in

CARE that discharges from point sources that reach

navigable waters through an intervening pathway require NPDES permits, whether or not the intervening

pathway is itself a point source. Id. at 223. The Second

Circuit again endorsed that principle in Peconic

Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d 180 (2d Cir.

Petitioner also cites a pre-Rapanos Second Circuit decision—Catskill Mountains Chapter of Trout Unlimited, Inc. v. City

of New York, 273 F.3d 481 (2d Cir. 2001), but that decision did not

address whether the NPDES program covers indirect discharges.

Rather, “the crux of th[e] appeal” in Catskill Mountains involved

what constitutes an “addition” of pollutant. Id. at 486.

2010), where the court held that an “indirect” discharge of pesticides from spray applicators attached to

trucks and helicopters through the air and thence into

navigable waters could violate the CWA, even though

the intervening air is not a point source. Id. at 188.

The Fifth Circuit’s Abston Construction decision

likewise is entirely in line with the Ninth Circuit’s decision, affirming that the conveyances of pollutants intervening between a point source and the receiving

navigable waters need not themselves be point sources.

In that case, the Fifth Circuit concluded that the key

to CWA liability is whether the defendant “initially collected or channeled the water and other materials” that

subsequently reach navigable waters. 620 F.2d at 45

(emphasis added). If the defendant made such efforts,

the discharge “constitutes a point source discharge,”

not unregulated “natural rainfall drainage.” Id. at 44;

see also id. at 45 (“Examples of point source pollution”

include “the collection, and subsequent percolation, of

surface waters in the [mine] pits themselves”), 47

(rainwater trapped in mine pits “eventually percolated

through the banks and flowed toward the creek, carrying with it acid and chemicals from the pit”).

The Ninth Circuit relied on Abston Construction,

noting the undisputed facts established that Petitioner

“ ‘initially collected [and] channeled’ the pollutants in

its wells and injected them into the ground, where they

were ‘carried away from the [wells] by the gravity flow

of [ground]water.’ ” Pet. App. 20 (quoting Abston Construction, 620 F.2d at 45). The Ninth Circuit further

concluded, “based on the overwhelming evidence in

this case establishing a connection between the wells

and the Pacific Ocean,” that “it cannot be disputed the

wells are ‘reasonably likely to be the means by which

[the] [effluent] [is] ultimately deposited into a navigable body of water.’ ” Id. (quoting Abston Construction,

620 F.2d at 45).

Contrary to Petitioner’s claims, neither Rice v.

Harken Expl. Co., 250 F.3d 264 (5th Cir. 2001), nor Vill.

of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d

962 (7th Cir. 1994), addressed the issue in this case.

Those decisions held only that “ ‘navigable waters’ do

not include groundwater.” Rice, 250 F.3d at 271; see

also Oconomowoc, 24 F.3d at 965. That is an entirely

distinct issue from whether CWA liability may attach

when a point source discharge is conveyed through

groundwater to a navigable water. See Pet. App. 16

n.2 (Ninth Circuit assumed, without deciding, “the

groundwater here is [not] a navigable water”).

Unlike this case, neither Rice nor Oconomowoc involved undisputed evidence the groundwater into

which point sources directly discharge actually conveys pollutants to navigable waters. Rice—a case

brought under the Oil Pollution Act (OPA)—involved

“spills of oil onto dry land that occurred hundreds of

miles from any coast or shoreline.” 250 F.3d at 266. The

Fifth Circuit emphasized the lack of any “evidence of a

close, direct and proximate link between [the defendant’s] discharges of oil and any resulting actual, identifiable oil contamination of a particular body of

natural surface water that satisfies the jurisdictional

requirements of the OPA.” Id. at 272. In Oconomowoc,

the Seventh Circuit considered allegations of only a

“potential”—not an actual—“connection between ground

waters and surface waters.” 24 F.3d at 965.

Such decisions have no bearing on the proper outcome when a discharge to groundwater is functionally

equivalent to a direct discharge to navigable waters. As

EPA has explained, given the CWA’s “purpose of protecting surface waters and their uses”:

[T]he Act requires NPDES permits for discharges to groundwater where there is a direct

hydrological connection between groundwaters and surface waters. In these situations,

the affected groundwaters are not considered

“waters of the United States” but discharges to

them are regulated because such discharges

are effectively discharges to the directly connected surface waters.

56 Fed. Reg. at 64,892 (emphasis added).8

That some district courts have reached conclusions that differ from the Ninth Circuit’s does not

warrant certiorari.9 This Court focuses discretionary

The legislative history Petitioner cites, see Pet. at 9-10, relates only to whether Congress intended that “discharges to isolated groundwater be subject to permit requirements,” and, thus,

is not relevant. Wash. Wilderness Coal. v. Hecla Mining Co., 870

F. Supp. 983, 989 (E.D. Wash. 1994); see also id. at 989-90.

The overwhelming majority of district courts have agreed

with the Ninth Circuit that the CWA regulates point source “discharges into hydrologically connected groundwater which adversely affect surface water.” Idaho Rural Council v. Bosma, 143

F. Supp. 2d 1169, 1180 (D. Idaho 2001); see, e.g., Hernandez v.

Esso Standard Oil Co., 599 F. Supp. 2d 175, 180 (D. P.R. 2009);

review on decisions of the courts of appeals, not district

court decisions, precisely because appellate review often eliminates inconsistencies. Sup. Ct. R. 10(a), (c).

For example, the Fourth Circuit’s reversal of the district court opinion in Upstate Forever resolved the potential conflict with the Ninth Circuit. 887 F.3d at 64142.

Given the absence of conflict between the Ninth

and Fourth Circuits, the fact that “[s]everal other appeals courts are currently considering a variety of factual applications to which the Ninth Circuit’s test

might apply” counsels in favor of allowing further development of the case law, not granting certiorari

prematurely. Pet. at 34. Since this petition was filed,

the Fourth Circuit issued a decision in one of the appeals Petitioner cited, Sierra Club v. Va. Elec. & Power

Co., No. 17-1895, 2018 WL 4343513 (4th Cir. Sept. 12,

2018), reaffirming Upstate Forever’s holding that “the

addition of a pollutant into navigable waters via

groundwater can violate § 1311(a).” Id. at *4. This

Court will have ample opportunity to decide if review

is needed after the other courts of appeals resolve the

appeals currently pending before them.

Wash. Wilderness Coal., 870 F. Supp. at 990; Williams Pipe Line

Co. v. Bayer Corp., 964 F. Supp. 1300, 1319-20 (S.D. Iowa 1997);

Sierra Club v. Colorado Ref. Co., 838 F. Supp. 1428, 1434 (D. Colo.

1993); 66 Fed. Reg. at 3,017 n.1 (listing cases).

II.

THE PENDENCY OF EPA REVIEW COUNSELS AGAINST GRANTING THE WRIT

EPA’s recent Federal Register notice seeking comment on CWA regulation of point source discharges via

groundwater provides another compelling reason to

deny the writ.10 The notice indicates that agency clarification may soon be forthcoming on a broad range

of topics, including “the applicability of the CWA to

groundwater with a direct hydrologic connection to jurisdictional water” and proposed definitions of “what

activities would be regulated if not a discharge to a jurisdictional surface water (i.e., placement on the land),

or which connections are considered ‘direct’ in order to

reduce regulatory uncertainties associated with that

term.” 83 Fed. Reg. at 7,128. As the agency charged

with administering the CWA, EPA’s views regarding

the scope of the NPDES permitting program warrant

careful consideration by this Court and, if appropriate,

deference. See Chevron U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837, 842-45 (1984). The

fact that EPA may soon offer additional perspectives

strongly favors waiting to hear from the agency, rather

than rushing to grant review.

The notice did not, as Petitioner claims, “document[ ] a lack

of clarity in [EPA’s] previous statements on this issue.” Pet. at 23.

On the contrary, EPA catalogued its many prior, consistent statements that such discharges “may be subject to CWA permitting

requirements.” 83 Fed. Reg. at 7,127.

III. THE NINTH CIRCUIT’S DECISION IS CONSISTENT WITH THE CWA’S STATUTORY

LANGUAGE AND POLICIES

Nearly four decades ago, this Court noted that, to

achieve its “all-encompassing program of water pollution regulation,” the CWA prohibits “[e]very point

source discharge . . . unless covered by a permit.” Milwaukee, 451 U.S. at 318 (footnote omitted). The issuance

of an NPDES permit “directly subjects the discharger to

the administrative apparatus established by Congress

to achieve its goals,” id., which are to “restore and

maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

Far from restricting the scope of NPDES permitting, as Petitioner argues, this Court’s decision in Miccosukee reaffirmed that the requirement to secure an

NPDES permit extends broadly to all point sources,

even ones that are not “the original source of the pollutant.” 541 U.S. at 105. As the Ninth Circuit correctly

observed, Petitioner’s attempt to narrow the class of

point sources requiring NPDES permits “read[s] into

the statute at least one critical term that does not appear on its face—that the pollutants must be discharged ‘directly’ to navigable waters from a point

source.” Pet. App. 23. There is no way to square Petitioner’s position with the CWA’s plain language, which

“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.’ ”

Rapanos, 547 U.S. at 743 (quoting 33 U.S.C. § 1362(12)(A);

emphasis in Rapanos).11

In faithfully following Rapanos’s guidance, the

Ninth Circuit did not eliminate the distinction between point source and nonpoint source pollution, as

Petitioner asserts. As the Ninth Circuit explained, its

case law “distinguishes between point source and nonpoint source pollution based on whether pollutants can

be ‘traced’ or are ‘traceable’ back to a point source,” the

same test other circuits and EPA apply. Pet. App. 24

n.3 (citing cases); see also Earth Sciences, 599 F.2d at

373; Upstate Forever, 887 F.3d at 652; 66 Fed. Reg. at

3,017. Where pollutants can be traced to an identifiable point source, that point source discharge requires

an NPDES permit to “achiev[e] and enforc[e] the effluent limitations” established to protect water quality.

Envt’l Prot. Agency, 426 U.S. at 205. Where pollution

“is not traceable to any single discrete source,” it is

nonpoint source pollution. League of Wilderness Defenders, 309 F.3d at 1184; see also Sierra Club v. El

Paso Gold Mines, Inc., 421 F.3d 1140 n.4 (10th Cir.

2005) (nonpoint source pollution “not traceable to a

single, identifiable source or conveyance”).

Miccosukee refutes Petitioner’s claim the CWA’s

reference to “ground waters” in provisions discussing

Petitioner’s citations to CWA provisions referencing discharges “into navigable waters” do not compel a different conclusion. Pet. at 27 (citing 33 U.S.C. §§ 1342(b), 1362(11)). Like section

1362(12)(A), none of these provisions specifies that point sources

must discharge directly into navigable waters to trigger NPDES

permitting.

nonpoint source pollution means that all discharges

involving groundwater are necessarily nonpoint.12

The Court rejected an identical argument that CWA

section 1314(f )(2)(F), which identifies various sources

of nonpoint pollution, including pollution resulting

from changes in the flow of “ ‘ground waters,’ ” establishes Congress’ intent that “such pollution . . . would

be addressed through local nonpoint source pollution programs.” 541 U.S. at 106 (quoting 33 U.S.C.

§ 1314(f)(2)(F)). The Court held instead that “§ 1314(f)(2)(F)

does not explicitly exempt nonpoint pollution sources

from the NPDES program if they also fall within the

‘point source’ definition.” Id. Here, the LWRF injection

wells are indisputably point sources that discharge

pollutants indirectly into navigable waters, and, thus,

the Ninth Circuit correctly concluded they “fall within

the ‘point source’ definition.”

Congress determined that, to achieve its goal to

protect our nation’s waters, it is vital to impose “direct

restrictions” on all point sources of pollution through

NPDES permitting. Envt’l Prot. Agency, 426 U.S. at

204. That other laws may also regulate discharges to

groundwater does not justify “ignoring the [CWA’s] express and unambiguous directive.” Hudson River Fishermen’s Ass’n v. City of New York, 751 F. Supp. 1088,

1100 (S.D.N.Y. 1990) (discussing Safe Drinking Water

Petitioner fails to explain why the CWA’s provisions concerning monitoring of “navigable waters and ground waters” have

any bearing on whether discharges to navigable waters via

groundwater require NPDES permits. 33 U.S.C. § 1252(a); see also

Pet. at 27 (citing 33 U.S.C. §§ 1252(a), 1254(a)(5), 1256(e)(1)).

Act (SDWA)); see also 67 Fed. Reg. 39,584, 39,587 (June

7, 2002) (noting EPA’s authority to regulate injection

wells under CWA); 16 U.S.C. § 1456(f ) (Coastal Zone

Management Act does not “in any way affect any

[CWA] requirement”); 42 U.S.C. § 6905(a) (CWA controls over Resource Conservation and Recovery Act);

42 U.S.C. § 9652(d) (Comprehensive Environmental

Response, Compensation, and Liability Act does not

modify CWA “obligations or liabilities”).

This case vividly illustrates the critical role

NPDES permitting plays in protecting our Nation’s

waters. For decades, Petitioner received UIC permit

coverage for its injection wells under the SDWA, during which time the coral reefs at Kahekili were devastated by the pollutants the UIC permits—which seek

to protect drinking water, not the marine environment—allow. Moreover, while Hawai‘i’s Nonpoint

Source Management Plan lists West Maui among its

priority watersheds, the plan lacks any meaningful,

enforceable measures to protect Kahekili’s reefs. See

HDOH, Hawai‘i’s Nonpoint Source Management Plan

(2015-2020).13 These other programs are no substitute

for the protections an NPDES permit would ensure.

Contrary to Petitioner’s claims, this case does not

present concerns of upsetting “the federal-state balance.” Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers, 531 U.S. 159, 174

(2001) (“SWANCC”). Unlike SWANCC, where the Court

http://health.hawaii.gov/cwb/files/2013/05/2015-Hawaii-NPSManagement-Plan.pdf (last visited Oct. 15, 2018).

concluded the Army Corps’ interpretation of CWA jurisdiction read key language “out of the statute,” the

Ninth Circuit’s decision is firmly rooted in the CWA’s

plain language, which broadly defines point source pollution. Id. at 172. Moreover, as this Court noted in

Envt’l Prot. Agency, the CWA provision authorizing a

State to “issue NPDES permits for discharges into navigable waters within its jurisdiction” furthers Congress’ “policy ‘to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.’ ” 426 U.S. at 20708 (quoting 33 U.S.C. § 1251(b)); see also 33 U.S.C.

§ 1342(b). Because Hawai‘i has an approved NPDES

permit program, the Ninth Circuit’s decision in no way

supplants the state’s primary authority over the

LWRF’s discharges. See 39 Fed. Reg. 43,759 (Dec. 18,

1974).

Petitioner’s musings about the supposed difficulties of crafting NPDES permits for point source discharges that reach navigable waters via groundwater,

Pet. at 30-31, ignore the fact that EPA and delegated

states have, for decades, exercised their CWA authority to do just that. EPA, Clean Water Rule Response to

Comments—Topic 10: Legal Analysis, at 386 & n.742

(June 30, 2015);14 see, e.g., EPA Region 6, NPDES Permit No. NMG010000, pt. III, at 3-4 (July 14, 2016)15

(prohibiting pollutant discharges “to surface waters of

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

cwr_response_to_comments_10_legal.pdf (last visited Oct. 15, 2018).

https://www.env.nm.gov/wp-content/uploads/2017/07/NMG

010000-CAFO-NM-20160901.pdf (last visited Oct. 15, 2018).

the United States through groundwater” from retention or control structures at concentrated animal feeding operations (CAFOs)); Colo. Dep’t of Pub. Health

and Env’t, Fact Sheet for CDPS Permit No. CO0041351 at 2-6 (Jan. 26, 2012)16 (regulating discharges

via groundwater to river from unlined waste ponds at

sugar beet processing plant). EPA has specifically issued permits for wastewater treatment facilities like

the LWRF that discharge to navigable waters via

groundwater. See, e.g., EPA Region 10, NPDES Permit

No. WA0023434 (June 4, 2015)17 (permit for discharge

from Taholah wastewater facility’s rapid infiltration

basins through groundwater to river); EPA Region 10,

NPDES Permit No. WA0023434 Fact Sheet at 8 (Apr.

21, 2015)18 (prior permit for Taholah facility issued in

2000); EPA Region 5, NPDES Permit No. WI-00730592 (Sept. 22, 2016)19 (permit for discharge from Neopit

wastewater facility’s seepage cells through groundwater to creek); EPA, Clean Water Rule Response to Comments—Topic 10: Legal Analysis, at 386 (prior permit

for Neopit facility issued in 2011). Petitioner’s assertion that over 90% of the LWRF’s flow enters the ocean

https://environmentalrecords.colorado.gov/HPRMWebDrawer/

Record/237726/File/Document (last visited Oct. 15, 2018).

https://www.epa.gov/sites/production/files/2017-09/documents/

r10-npdes-taholah-wa0023434-final-permit-2015.pdf (last visited

Oct. 15, 2018).

https://www.epa.gov/sites/production/files/2017-09/documents/

r10-npdes-taholah-wa0023434-fact-sheet-2015.pdf (last visited Oct.

15, 2018).

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

wi0073059fnlprmt09_22_2016_0.pdf (last visited Oct. 15, 2018).

at “unknown” points of entry—allegedly complicating

NPDES permitting—has no basis in the record. Pet. at

31. The tracer dye study conclusively established that

over half of the LWRF wastewater—millions of gallons

of pollutants per day—discharges into the ocean from

two small submarine spring areas off Kahekili Beach,

and HDOH monitored those springs for years, documenting pollutant exceedances. Pet. App. 7-10, 34-35,

67; see also Pet. App. 24 (evidence “conclusively establish[es] that pollutants discharged from all four wells

emerged at discrete points in the Pacific Ocean”); SER

126-142.

IV. THE NINTH CIRCUIT’S DECISION DOES

NOT EXPAND THE CWA’S REGULATORY

REGIME

This case bears no resemblance to Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 134 S. Ct. 2427 (2014)

(“UARG”). In that case, “EPA itself . . . repeatedly

acknowledged that applying the PSD and Title V permitting requirements to greenhouse gases would be inconsistent with—in fact, would overthrow—the [Clean

Air] Act’s structure and design.” Id. at 2442. EPA did

not promulgate the challenged regulations because it

deemed them consistent with Congress’ intent, but, rather, because it had reached the unusual conclusion

that the statute’s language compelled a reading at

odds with that intent. Id. at 2437. Thus, in UARG, this

Court “confront[ed] a singular situation: an agency laying claim to extravagant statutory power over the national economy while at the same time strenuously

asserting that the authority claimed would render the

statute ‘unrecognizable to the Congress that designed’

it.” Id. at 2444 (citation omitted; emphasis added).

Here, in contrast, EPA “has a longstanding and

consistent interpretation that the Clean Water Act may

cover discharges of pollutants from point sources to

surface water that occur via ground water.” EPA, Clean

Water Rule Response to Comments—Topic 10: Legal

Analysis, at 383, 386, 387, 390 (emphasis added).20 For

nearly three decades, EPA has consistently taken this

position because regulating discharges via groundwater is necessary to carry out the statutory “purpose of

protecting surface waters and their uses.” 56 Fed. Reg.

at 64,892; see also 62 Fed. Reg. 20,177, 20,178 (Apr. 25,

1997); 63 Fed. Reg. 7,858, 7,878 (Feb. 17, 1998); 66 Fed.

Reg. at 3,015-18.21 Unlike UARG, where EPA deemed

its regulations in conflict with congressional intent,

here, EPA concluded that, given “Congress’ broad

concern for the integrity of the Nation’s waters,”

EPA does not assert authority to regulate all groundwater.

Rather, “for the purpose of protecting surface waters and their

uses,” EPA concludes it “may exercise authorities that may affect

underground waters.” 56 Fed. Reg. at 64,892.

Because “[p]ollutant discharges from CAFOs to surface

water via a groundwater pathway are highly dependent on sitespecific variables,” EPA did not include “national requirements”

addressing such discharges in its final CAFO rule. 68 Fed. Reg.

7,176, 7,216 (Feb. 12, 2003). That did not reflect a change in EPA’s

position. EPA affirmed its authority to “impose [NPDES] permit

terms and conditions” to “control [CAFO] discharges to ground

water with a direct hydrologic connection to surface water . . . on

a case-by-case basis,” an authority EPA exercises. Id. at 7,229; see,

e.g., NPDES Permit No. NMG010000.

interpreting the CWA to “exclude[ ] regulation of point

source discharges to the waters of the U.S. which occur

via ground water would . . . be inconsistent with the

overall Congressional goals expressed in the statute.”

66 Fed. Reg. at 3,015-16.

In UARG, the Court emphasized “the ‘fundamental canon of statutory construction that the words of a

statute must be read in their context and with a view

to their place in the overall statutory scheme.’ ” 134

S. Ct. at 2441 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). The Ninth Circuit faithfully applied that canon here, grounding its

decision in the statutory language and paying heed to

Congress’ intent to protect the nation’s waters. As EPA

has correctly noted, in declining to extend the “NPDES

program to all ground water,” Congress did not “intend[ ] to create a ground water loophole through

which the discharges of pollutants could flow, unregulated, to surface water.” 66 Fed. Reg. at 3,016.

Far from a “novel reading of the CWA,” Pet. at 31,

the Ninth Circuit’s decision is consistent with EPA’s

longstanding interpretation, as well as with decisions

of the overwhelming majority of district courts, which,

for decades, have held the CWA regulates point source

“discharges into hydrologically connected groundwater

which adversely affect surface water.” Idaho Rural

Council, 143 F. Supp. 2d at 1180; see supra note 9. Requiring NPDES permits for indirect discharges via

groundwater is not a new development. EPA and delegated states have long issued NPDES permits for

such discharges, including permits regulating indirect

discharges from wastewater treatment facilities. See,

e.g., NPDES Permit No. WA0023434; NPDES Permit

No. WI-0073059-2; Fact Sheet for CDPS Permit No.

CO-0041351.22

Petitioner gives this Court no reason to believe the

Ninth Circuit’s ruling will increase the number of facilities requiring NPDES permits “by several orders of

magnitude.” Pet. at 35. The determination whether an

indirect discharge “is the functional equivalent of a

discharge into the navigable water” is fact-specific, so

one cannot simply catalog the number of facilities potentially discharging to groundwater and assume they

all need permits. Pet. App. 24; see also Ass’n of Cal. Water Agencies Amicus Br. at 16 n.5 (noting “unique geology of Maui”). Moreover, given that EPA, delegated

states and the courts have, for decades, interpreted the

CWA to require NPDES permits for indirect discharges via groundwater, it is unclear why the number

of facilities requiring permits would expand radically

now.

Even should the number of facilities requiring permits increase, this Court has noted that the CWA provides for “the States or EPA [to] control regulatory

costs by issuing general permits.” Miccosukee, 541 U.S.

at 108. Petitioner notes that 137,455 facilities nationwide operate under NPDES permits (other than tribal

permits and stormwater general permits). Pet. 35. Of

There is no inconsistency between promoting green infrastructure projects and also ensuring that discharges from those

projects via groundwater do not harm navigable waters.

those, over two-thirds (92,815 facilities) operate under

general permits, which “greatly reduce th[e] administrative burden.” Miccosukee, 541 U.S. at 108 n*; see

EPA, NPDES Permit Status Reports, FY 2017 NonTribal Permits Detailed Percent Current Status.23

IN CONCLUDING PETITIONER HAD FAIR

NOTICE, THE NINTH CIRCUIT APPLIED

THE CORRECT LEGAL STANDARD

Petitioner does not claim the Ninth Circuit applied

the wrong legal standard in resolving the fair notice

issue. While the Ninth Circuit did not specifically cite

FCC v. Fox Television Stations, Inc., 567 U.S. 239

(2012), neither did Petitioner mention it in its briefs.

The court applied the same standard Fox articulates,

and Petitioner does not claim otherwise. Pet. App. 2829. Rather, Petitioner argues the Ninth Circuit misapplied a properly stated rule of law and made erroneous

factual findings, neither of which, even if correct,

would merit this Court’s review. See Sup. Ct. R. 10.

Petitioner initially challenges the court’s conclusion that the CWA’s plain language provided adequate

notice. Unlike Fox, in which the FCC applied a “new

policy” prohibiting “fleeting expletives and fleeting nudity” to broadcasts that aired when an earlier policy

allowing such material was in place, the CWA’s prohibition on unpermitted point source discharges has not

changed. 567 U.S. at 249. The Ninth Circuit correctly

https://www.epa.gov/npdes/npdes-permit-status-reports (last

visited Oct. 15, 2018).

concluded the plain language of that prohibition—

which has always prohibited unpermitted discharges

“to navigable waters,” not just those “directly to navigable waters”—provided fair notice. Rapanos, 547 U.S.

at 743 (citations omitted).

Petitioner’s quibbling with the Ninth Circuit’s

weighing of evidence related to HDOH’s position on

the need for an NPDES permit does not warrant this

Court’s review. The Ninth Circuit understandably

privileged HDOH’s only official communication—that

HDOH had not yet “determin[ed] if an NPDES permit

is applicable”—over the informal staff comments Petitioner highlights. Pet. App. 30 (quoting April 2014

HDOH letter). The Ninth Circuit also properly disregarded Petitioner’s citations to internal agency emails,

which clearly had no bearing on Petitioner’s understanding of the CWA’s requirements.

In any event, the specific facts of this case render

irrelevant Petitioner’s fair notice arguments because

the modest remedies to which Petitioner stipulated—a

$100,000 fine and $2.5 million investment in increased

reuse of LWRF wastewater to decrease injection—do

not actually attach any penalties to Petitioner’s actions

prior to the district court’s rulings on liability. See Pet.

App. 124-126 (¶¶ 9-13). As the district court correctly

held, “[a]t the very latest, [Petitioner] had fair notice

that it was violating the [CWA] once this court issued

its first summary judgment order on May 30, 2014,”

finding Petitioner liable for unpermitted discharges

from two LWRF wells. Pet. App. 113. The court’s ruling

eliminated any possible claim Petitioner lacked notice

of what the CWA required, removing any arguable constitutional impediment to penalties for the ongoing,

illegal discharges occurring after the liability decision.

During the period from the first summary judgment order to entry of the parties’ stipulated remedy

on September 24, 2015, the CWA provided for penalties

of up to $37,500 per day for each violation, with “a discharge of pollutants from one well on one day

count[ing] as one violation.” Pet. App. 118; see also 33

U.S.C. § 1319(d); 40 C.F.R. § 19.4, tbl. 1 (2017). Given

that each LWRF well discharges on a near-continuous

basis, the potential penalties for Petitioner’s discharges from only the two wells that were the subjects

of the initial liability ruling—over $35 million by the

time the remedy stipulation was entered—dwarf by

over an order of magnitude the penalty to which Petitioner voluntarily agreed. See SER 1-4. The unpermitted daily discharges from the remaining two LWRF

wells, which the district court held illegal in its January 23, 2015 order, further add to the potential penalties Petitioner faced for conduct occurring after the

district court ruled. Pet. App. 98-99.

To uphold the district court’s ruling on fair notice,

the Ninth Circuit needed to conclude only that, at some

point, Petitioner knew “what was required of [it],” such

that assessing a civil penalty for its continuing violations was permissible. Fox, 567 U.S. at 253. Petitioner

cannot credibly claim to have lacked fair notice that it

could be subject to penalties for the hundreds of days

of unpermitted discharges that occurred after the district court issued its liability rulings.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

EARTHJUSTICE

DAVID LANE HENKIN

Counsel of Record

850 Richards Street, Suite 400

Honolulu, Hawai‘i 96813

dhenkin@earthjustice.org

Phone: (808) 599-2436

October 23, 2018

Counsel for Respondents

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.