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

Supreme Court briefMay 9, 2019

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No. 18-260

IN THE

Supreme Court of the United States

————

COUNTY OF MAUI,

Petitioner,

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

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

————

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

————

BRIEF FOR PETITIONER

————

COUNTY OF MAUI

MOANA M. LUTEY

RICHELLE M. THOMSON

200 South High Street

Wailuku, Maui, Hawai‘i 96793

(808) 270-7740

HUNTON ANDREWS KURTH LLP

ELBERT LIN

Counsel of Record

MICHAEL R. SHEBELSKIE

951 East Byrd Street, East Tower

Richmond, Virginia 23219

elin@HuntonAK.com

(804) 788-8200

COLLEEN P. DOYLE

DIANA PFEFFER MARTIN

550 South Hope Street

Suite 2000

Los Angeles, California 90071

(213) 532-2000

Counsel for Petitioner

May 9, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTION PRESENTED

In the Clean Water Act (CWA), Congress distinguished between the many ways that pollutants reach

navigable waters. It defined some of those ways as

“point sources”—namely, pipes, ditches, and other

“discernible, confined and discrete conveyance[s] …

from which pollutants are or may be discharged.” 33

U.S.C. § 1362(14). The remaining ways of moving

pollutants, like runoff or groundwater, are “nonpoint

sources.”

The CWA regulates pollution added to navigable

waters “from point sources” differently than pollution

added “from nonpoint sources.” It controls point source

pollution through permits, e.g., id. § 1342, while

nonpoint source pollution is controlled through federal

oversight of state management programs, id. § 1329.

Nonpoint source pollution is also addressed by other

state and federal environmental laws.

The question presented is:

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.

PARTIES TO THE PROCEEDING

The names of all parties to the proceeding below

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

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ ii

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

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

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISIONS INVOLVED .................. 1

INTRODUCTION ........................................................ 3

STATEMENT .............................................................. 6

I. The County’s UIC Wells ................................... 6

II. Statutes Applicable to the Wells ...................... 8

III. Regulation of the County’s Effluent

Injection........................................................... 11

IV. Proceedings Below .......................................... 14

V. EPA’s Interpretive Statement of April 23,

2019 ................................................................. 16

SUMMARY OF ARGUMENT ................................... 17

ARGUMENT .............................................................. 21

I. In the CWA, Congress Chose Deliberately to Control Pollution Added to

Navigable Waters “From Point Sources”

Differently Than Pollution Added “From

Nonpoint Sources.” ......................................... 21

TABLE OF CONTENTS—Continued

Page

A. The CWA changed the focus of federal

regulation from enforcing water quality

standards to controlling point source

discharges. ................................................. 21

B. Congress chose repeatedly to regulate

pollution added from nonpoint sources

differently. ................................................. 23

II. Point Source Permitting Is Required Only

Where Pollutants Are Being Delivered

By a Point Source or Series of Point

Sources To Navigable Waters. ....................... 27

A. Congress unambiguously defined point

source pollution based on the means

of delivery to navigable waters. ................ 27

1. A means-of-delivery test is found

clearly in the statutory text. ................ 28

2. A means-of-delivery test accords

with the CWA’s structure. ................... 34

3. Other provisions in the CWA

support a means-of-delivery test. ........ 36

4. The CWA’s legislative history

supports a means-of-delivery test. ...... 39

5. A means-of-delivery test is consistent with the CWA’s purposes......... 41

B. The means-of-delivery test is further

confirmed by the expansive, novel,

and disruptive effects of the Ninth

and Fourth Circuit’s tests. ........................ 44

TABLE OF CONTENTS—Continued

Page

1. The Ninth and Fourth Circuit’s

tests would vastly expand NPDES

permitting. ............................................ 45

2. The Ninth and Fourth Circuit’s

tests would transform a longextant statute. ...................................... 49

3. The Ninth and Fourth Circuit’s

tests would readjust the federalstate balance......................................... 51

4. Congress did not clearly authorize

the Ninth and Fourth Circuit’s

tests....................................................... 52

III. The Ninth Circuit Erred in Finding That

the County Needed An NPDES Permit. ........ 53

A. The County’s well injections do not

require an NPDES permit under the

means-of-delivery test. .............................. 53

B. EPA’s

Interpretative

Statement

Provides an Alternative Ground for

Reversal. .................................................... 55

CONCLUSION .......................................................... 57

TABLE OF AUTHORITIES

Federal Cases:

Page(s)

Abramski v. United States, 573 U.S. 169

(2014) ......................................................... 27, 28

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ....... 30

Bond v. United States, 572 U.S. 844 (2014) ...... 51

Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York, 273

F.3d 481 (2d Cir. 2001) ............................. 26, 49

Center for Native Ecosystems v. Cables, 509

F.3d 1310 (10th Cir. 2007) .............................. 26

City of Milwaukee v. Illinois, 451 U.S. 304

(1981) ........................................................... 3, 22

Concerned Area Residents for the Env’t v.

Southview Farm, 34 F.3d 114 (2d Cir.

1994) ................................................................ 34

Cordiano v. Metacon Gun Club, Inc., 575

F.3d 199 (2d Cir. 2009) ................. 26, 35, 36, 49

Dague v. City of Burlington, 935 F.2d 1343

(2d Cir. 1991), rev’d on other grounds,

505 U.S. 557 (1992) ......................................... 34

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597

(2013) ............................................................... 30

Director, Office of Workers’ Comp.

Programs, Dep’t of Labor v. Newport

News Shipbuilding & Dry Dock Co., 514

U.S. 122 (1995) ................................................ 41

EPA v. California ex rel. State Water Res.

Control Bd., 426 U.S. 200 (1976)... 21, 22, 23, 39

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Exxon Corp. v. Train, 554 F.2d 1310 (5th

Cir. 1977) ......................................................... 41

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ......................................... 45

Greater Yellowstone Coal. v. Lewis, 628

F.3d 1143 (9th Cir. 2011)................................ 50

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ..................................... 42

International Paper Co. v. Ouellette, 479

U.S. 481 (1987) .......................................... 31, 51

Kentucky Waterways All. v. Ky. Utils. Co.,

905 F.3d 925 (6th Cir. 2018) ..... 5, 26, 34, 37, 44

Kucana v. Holder, 558 U.S. 233 (2010) ............. 28

League of Wilderness Defs./Blue Mountains

Biodiversity Project v. Forsgren, 309 F.3d

1181 (9th Cir. 2002) .................................. 26, 32

National Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644 (2007) .................... 31, 36

National Ass’n of Mfrs. v. Dep’t of Def., 138

S. Ct. 617 (2018) .......................................passim

National Wildlife Fed’n v. Consumers

Power Co., 862 F.2d 580 (6th Cir. 1988) ........ 35

Natural Res. Def. Council v. EPA,

915 F.2d 1314 (9th Cir. 1990) ................... 25, 35

Oregon Nat. Desert Ass’n v. Dombeck, 172

F.3d 1092 (9th Cir. 1998)................................ 25

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Oregon Nat. Desert Ass’n v. U.S. Forest

Serv., 550 F.3d 778 (9th Cir. 2008) .... 23, 25, 34

Rapanos v. United States, 547 U.S. 715

(2006) ......................................... 4, 23, 33, 38, 42

Sackett v. EPA, 566 U.S. 120 (2012) ............ 31, 38

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

41 (5th Cir. 1980) ...................................... 26, 50

Sierra Club v. El Paso Gold Mines, Inc., 421

F.3d 1133 (10th Cir. 2005) .............................. 34

Solid Waste Agency of N. Cook Cty. v. U.S.

Army Corps of Eng’rs, 531 U.S. 159

(2001) ............................................... 3, 27, 45, 52

South Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004) .......passim

Trustees for Alaska v. EPA, 749 F.2d 549

(9th Cir. 1984) ................................................. 50

United States v. Gonzales, 520 U.S. 1

(1997) ......................................................... 19, 32

United States v. Ortiz, 427 F.3d 1278 (10th

Cir. 2005) ......................................................... 34

United States v. Velsicol Chem. Corp., 438

F. Supp. 945 (W.D. Tenn. 1976) ..................... 34

United States v. Wilson, 133 F.3d 251 (4th

Cir. 1997) ......................................................... 30

United States ex rel. Tenn. Valley Auth. v.

Tenn. Water Quality Control Bd., 717

F.2d 992 (6th Cir. 1983).................................. 26

TABLE OF AUTHORITIES—Continued

Page(s)

Upstate Forever v. Kinder Morgan Energy

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

petition for cert. filed, 87 U.S.L.W. 3069

(U.S. Aug. 28, 2018) (No. 18-268) ............passim

U.S. Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807 (2016) ......................... 37, 38, 46

Utility Air Regulatory Grp. v. EPA, 573

U.S. 302 (2014) ........................ 20, 27, 45, 49, 52

Village of Oconomowoc Lake v. Dayton

Hudson Corp., 24 F.3d 962 (7th Cir.

1994) ................................................................ 50

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

(2d Cir. 2005) .................................................. 49

Weinberger v. Romero-Barcelo, 456 U.S.

305 (1982) .......................................................... 3

Docketed Cases:

Conservation Law Found., Inc. v. Longwood

Venues & Destinations, Inc., No. 1:18-cv11821-WGY (D. Mass. filed Aug. 24,

2018) ................................................................ 48

Conservation Law Found., Inc. v. Wequassett

Inn LLP, No. 1:18-cv-11820-DPW (D.

Mass. filed Aug. 24, 2018) .............................. 48

Federal Statutes:

16 U.S.C. § 1455b ............................................... 13

16 U.S.C. § 1455b(a)(1)....................................... 44

16 U.S.C. § 1455b(a)(2)....................................... 13

TABLE OF AUTHORITIES—Continued

Page(s)

28 U.S.C. § 1254(1) ............................................... 1

33 U.S.C. § 1251(a) ......................................... 9, 41

33 U.S.C. § 1251(a)(1)................................. 1, 9, 37

33 U.S.C. § 1251(a)(6)......................................... 37

33 U.S.C. § 1251(a)(7)..................... 1, 9, 11, 24, 42

33 U.S.C. § 1251(b) ................................. 1, 4, 9, 42

33 U.S.C. § 1252(a) ............................................. 10

33 U.S.C. § 1256(e) ............................................. 10

33 U.S.C. § 1285(j) .............................................. 11

33 U.S.C. § 1298(b) ............................................. 13

33 U.S.C. § 1311(a) ......................................passim

33 U.S.C. § 1314(f) .............................................. 11

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

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

33 U.S.C. § 1321(a)(2)......................................... 44

33 U.S.C. § 1321(b) ............................................. 44

33 U.S.C. § 1329 ........................... 4, 17, 18, 24, 25

33 U.S.C. § 1329(b) ......................................... 2, 25

33 U.S.C. § 1329(b)(1)......................... 4, 11, 24, 42

33 U.S.C. § 1329(i) .......................................... 2, 11

33 U.S.C. § 1342(a)(1)........................................... 2

33 U.S.C. § 1342(b) ....................................... 10, 37

33 U.S.C. § 1344(a) ............................................. 37

TABLE OF AUTHORITIES—Continued

Page(s)

33 U.S.C. § 1362(7) ......................................... 2, 10

33 U.S.C. § 1362(11) ........................................... 37

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

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

33 U.S.C. § 1371(b) ............................................. 37

42 U.S.C. §§ 300f et seq. ....................................... 8

42 U.S.C. § 300h ................................................... 8

42 U.S.C. §§ 300h – 300h-8 ................................ 43

42 U.S.C. § 300h-1(c) .......................................... 11

42 U.S.C. § 6903(3) ............................................. 44

42 U.S.C. § 9601(8) ............................................. 44

Legislative History:

118 Cong. Rec. 10,666 (1972) (statement of

Rep. Aspin) ...................................................... 40

133 Cong. Rec. 1279 (1987) (statement of

25Sen. Durenberger)....................................... 25

Pub. L. No. 80-845, 62 Stat. 1155 (1948) ........... 21

S. Rep. No. 92-414 (1971), reprinted in 1972

U.S.C.C.A.N. 3668 ...................................passim

S. Rep. No. 95-370 (1977), reprinted in 1977

U.S.C.C.A.N. 4326 .......................................... 24

S. Rep. No. 99-50 (1985), reprinted in 2

Legislative History of the Water Quality

Act of 1987 (1988) ........................................... 25

xii

TABLE OF AUTHORITIES—Continued

Page(s)

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) ................ 40

State Statutes:

Haw. Rev. Stat. § 340E-2 ............................... 9, 11

Haw. Rev. Stat. § 340E-2(e) ................................. 9

Haw. Rev. Stat. § 342D-50 ................................. 10

Federal Regulations:

40 C.F.R. § 19.4 .................................................. 37

40 C.F.R. § 122.2 ............................................ 3, 10

40 C.F.R. § 130.2(g) ............................................ 26

40 C.F.R. § 130.2(h) ............................................ 26

40 C.F.R. pt. 144 ................................................... 8

40 C.F.R. § 144.81 ............................................ 8, 9

40 C.F.R. §§ 257.90 et seq. .................................. 44

State Regulations:

Haw. Code R. § 11-23-06 ...................................... 9

Haw. Code R. § 11-23-07 ...................................... 9

Haw. Code R. § 11-23-11 ................................ 9, 43

Haw. Code R. § 11-62-03 ...................................... 7

Haw. Code R. § 11-62-26 ...................................... 7

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Register:

39 Fed. Reg. 43,759 (Dec. 18, 1974) ................... 10

83 Fed. Reg. 7126 (Feb. 20, 2018) ...................... 16

84 Fed. Reg. 2056 (Feb. 6, 2019) .................. 37, 38

84 Fed. Reg. 4154 (Feb. 14, 2019) ...................... 10

84 Fed. Reg. 16,810 (Apr. 23, 2019) ............passim

Court Materials:

Cape Fear River Watch v. Chemours Co.

FC, LLC, No. 7:18-cv-00159-D (E.D.N.C.

Feb. 28, 2019) (order granting voluntary

dismissal with prejudice) ................................ 48

Complaint, Village of Oconomowoc Lake v.

Dayton-Hudson Corp., No. CIV. A. 93-C0797, 1993 WL 668975 (E.D. Wis. Sept.

24, 1993), aff’d, 24 F.3d 962 (7th Cir.

1994) ................................................................ 50

Other Authorities:

EPA, 2017 Potable Reuse Compendium,

EPA/810/R-17/002 (undated), https://www.

epa.gov/ground-water-and-drinking-wat

er/2017-potable-reuse-compendium ............... 47

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-inj

ection-non-hazardous-fluids-or-above-un

derground-sources-drinking-water .................. 8

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

EPA, Contacts for Nonpoint Source (NPS)

Pollution Programs, State Contacts,

https://www.epa.gov/nps/state-contactsnps-programs .................................................. 42

EPA, FY2016 Underground Injection Control

Inventory – By State, https://www.epa.

gov/uic/underground-injection-well-inven

tory .................................................................. 14

EPA, Guidelines for Water Reuse,

EPA/600/R-12/618 (Sept. 2012), https://

nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=P

100FS7K.TXT ........................................... 46, 47

EPA, Large-Capacity Cesspools, https://www.

epa.gov/uic/large-capacity-cesspools ........ 47, 48

EPA, National Management Measures to

Control Nonpoint Source Pollution from

Urban Areas, EPA-841-B-05-004 (Nov.

2005), https://www.epa.gov/sites/produc

tion/files/2015-09/documents/urban_guid

ance_0.pdf ....................................................... 46

EPA, NPDES Permit Status Reports, FY

2017 Non-Tribal Backlog Summary

Report, https://www.epa.gov/NPDES/NP

DES-permit-status-reports ............................. 46

EPA, Primary Enforcement Authority for

the Underground Injection Control

Program, https://www.epa.gov/uic/primaryenforcement-authority-underground-inje

ction-control-program#primacy_states ............ 8

TABLE OF AUTHORITIES—Continued

Page(s)

Hawai‘i State Department of Health,

Hawai‘i’s Nonpoint Source Management

Plan (2015-2020), http://planning.haw

aii.gov/czm/initiatives/coastal-nonpointpollution-control-program/hawaiis-imple

mentation-plan-for-polluted-runoff-contr

ol/ ................................................... 12, 43, 47, 48

State of Hawai‘i Department of Health,

Clean Water Branch, http://health.haw

aii.gov/cwb/clean-water-branch-home-pa

ge/polluted-runoff-control-program/prc-h

awaiis-implementation-plan/ ......................... 12

The Random House Dictionary of the

English Language (1967) .................... 28, 29, 36

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/publicati

ons/2013/demo/h150-11.html.......................... 47

Webster’s Third New International

Dictionary of the English Language

Unabridged (1971) .............................. 28, 29, 36

Webster’s Third New International

Dictionary of the English Language

Unabridged (1993) .......................................... 31

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the court of appeals as amended is

reported at 886 F.3d 737 (9th Cir. 2018) and is

reproduced in the Petition Appendix starting at Pet.

App. 1. The two opinions of the district court granting

Respondents summary judgment are reported at 24 F.

Supp. 3d 980 (D. Haw. 2014) and 2015 WL 328227 (D.

Haw. Jan. 23, 2015), and are reproduced in the

Petition Appendix starting at Pet. App. 32 and Pet.

App. 85, respectively.

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 petition for certiorari to August

27, 2018. The timely filed petition was granted on

February 19, 2019. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

33 U.S.C. § 1251(a)(1) provides: “it is the national

goal that the discharge of pollutants into the 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. § 1251(b) provides: “It is the policy of the

Congress to recognize, preserve, and protect the pri-

mary responsibilities and rights of States to prevent,

reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and

enhancement) of land and water resources, and to

consult with the Administrator in the exercise of his

authority under this chapter.”

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(b) requires federally approved state

nonpoint source management 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(i) provides that for States with

approved programs under § 1329(b), “the [U.S. Environmental Protection Agency] Administrator shall make

grants under this subsection to such State for the

purpose of assisting such State in carrying out

groundwater quality protection activities which the

Administrator determines will advance the State

toward implementation of a comprehensive nonpoint

source pollution control program.”

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.”

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.”

INTRODUCTION

The Clean Water Act (CWA or Act) is a landmark

achievement in the nation’s efforts to address water

pollution. Congress passed the CWA in 1972 “because

it recognized that ‘the national effort to abate and

control water pollution ha[d] been inadequate in every

vital aspect.’” Weinberger v. Romero-Barcelo, 456 U.S.

305, 319 (1982) (quoting S. Rep. No. 92-414, at 7

(1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3674). As

this Court has said, the intent “was clearly to establish

an all-encompassing program of water pollution

regulation.” City of Milwaukee v. Illinois, 451 U.S. 304,

318 (1981) (Milwaukee II).

But Congress did not, in the CWA, prescribe a single

regulatory scheme for all water pollution. For example,

“the statutory phrase ‘waters of the United States’

circumscribes the geographic scope of the Act in

certain respects.” Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617, 624 (2018). This Court has yet to

determine the outer bounds of that geographic scope,

but it has held that the phrase does not reach as far as

“nonnavigable, isolated, intrastate waters.” Solid

Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 172 (2001) (SWANCC). Nor do

the “waters of the United States” include groundwater. See, e.g., 40 C.F.R. § 122.2. At a minimum, both

of those types of waters are left to the States to

regulate, consistent with “the policy of the Congress

[in the CWA] to recognize, preserve, and protect the

primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution.” 33 U.S.C

§ 1251(b).

This case concerns another aspect of the CWA’s

varied approach to water regulation: Congress’s decision to address “point source” pollution differently

than “nonpoint source” pollution. Pollutants travel to

bodies of water in many ways: by pipe, ditch, runoff,

and innumerable other methods of transport. The CWA

defines some of those ways of moving pollutants as

“point sources”—specifically, pipes, ditches, and similar

“discernible, confined and discrete conveyance[s] …

from which pollutants are or may be discharged.” Id.

§ 1362(14). All other methods of pollution transport,

like runoff, are referenced simply as “nonpoint

sources.” E.g., id. § 1329.

Since its passage, the CWA has controlled pollution

added to navigable waters “from point sources” differently than that added “from nonpoint sources.” The

Act bans the “addition of any pollutant to navigable

waters from any point source” without a permit. Id.

§ 1362(12) (emphasis added). But no similar permitting requirement applies to pollution added from

nonpoint sources. Rather, States were given “nearly

exclusive responsibility for containing pollution from

nonpoint sources.” Rapanos v. United States, 547 U.S.

715, 803 (2006) (Stevens, J., dissenting). The CWA

expressly requires States to create management programs, subject to approval and funding by the United

States Environmental Protection Agency (EPA), “for

controlling pollution added from nonpoint sources to

the navigable waters within the State.” 33 U.S.C.

§ 1329(b)(1) (emphasis added). Nonpoint source pollu-

tion is also controlled by many other state and federal

environmental laws.

The question in this case, which has recently divided

the circuits, is whether a permit is required under

the CWA’s point source program where pollutants are

reaching navigable waters by a nonpoint source. A

plurality, including most lately the Sixth Circuit, have

said “no.” The point source program applies only

where a pollutant “make[s] its way to a navigable

water … by virtue of a point-source conveyance.” Ky.

Waterways All. v. Ky. Utils. Co., 905 F.3d 925, 934 (6th

Cir. 2018). In contrast, the Ninth Circuit below held

that the point source program also extends to circumstances where pollutants are delivered to navigable

waters by a nonpoint source, so long as the pollutants

are “fairly traceable” to a point source. Pet. App. 24;

see also Upstate Forever v. Kinder Morgan Energy

Partners, L.P., 887 F.3d 637, 651-52 (4th Cir.), petition

for cert. filed, 87 U.S.L.W. 3069 (U.S. Aug. 28, 2018)

(No. 18-268) (adopting “direct hydrological connection”

test).

The plurality is correct. Point source permitting is

required only where pollutants are being delivered to

navigable waters by point sources. The CWA’s state

nonpoint source management programs (and other

state and federal laws) apply where pollutants are

being delivered to navigable waters by nonpoint

sources. That bright-line and common-sense test follows

from the text, structure, context, history, and several

purposes of the CWA.

Accordingly, the Ninth Circuit should be reversed.

There is no disagreement that the pollutants here

reached navigable water only by way of groundwater.

And because the groundwater is not a point source, the

Ninth Circuit was wrong in concluding that the CWA’s

point source permitting program, rather than its

nonpoint source program, governs.

Clean water and environmental stewardship are of

vital importance to the County and its citizens. Those

commitments are not at issue in this case. Nor is there

any question whether the CWA applies. The question

is simply which CWA regulatory regime Congress

intended to apply, given its deliberate decision to treat

point source and nonpoint source pollution differently.

STATEMENT

This case arises out of a dispute over the permits

required for four underground injection control (UIC)

wells, which dispose of treated effluent (wastewater

from area homes and businesses) at the County’s

Lahaina Wastewater Reclamation Facility. No party

questions that the wells must be and are permitted

under the federal and state safe drinking water programs, like similar wells around the country. Nor is

there any quarrel that the wells comply with those

permits. But because the injected effluent mixes with

groundwater, which flows diffusely to the Pacific

Ocean, the parties disagree over whether a permit is

also required under the CWA. Is a permit for point

source pollution required, or does this activity fall

under the CWA’s nonpoint source program and other

federal and state laws, like the safe drinking water

programs?

I. The County’s UIC Wells

The County’s Lahaina Wastewater Reclamation

Facility treats and disposes of effluent generated by

homes and businesses in the western part of Maui.

Constructed with EPA funding, the facility commenced operations by the early 1980s, with treated

effluent injected into UIC wells. Pet. App. 138 ¶ 3;

Ninth Circuit Excerpts of Record (ER) 381-82, 481

¶ 19. The effluent meets the R-1 water standard,

ER420, 530, Hawai‘i’s most rigorous standard for

recycled water, Haw. Code R. §§ 11-62-03, 11-62-26.

Some is used for resort and golf course irrigation.

ER420, 530, 625 ¶ A.8.c. The rest is injected through

four wells 180 to 255 feet below ground, immediately

mixes with groundwater, and disperses both vertically

and horizontally as it enters groundwater through

approximately 100-foot well openings. JA79.

As is true of all groundwater in Hawai‘i, the

groundwater that receives the effluent migrates toward

the ocean. Like much groundwater, this groundwater

moves diffusely through an aquifer—an underground

layer of permeable rock. That the effluent/groundwater

mixture reaches the ocean has been known by federal

and state regulators for decades. See infra p. 13.

According to an EPA ordered tracer-dye study

completed in 2013, more than 90% of the effluent/

groundwater mixture enters the ocean through diffuse

flow, with no identifiable entry point, along as much

as two miles of coastline. JA75; ER429, 479-80 ¶ 14,

493 ¶ 48, 534. Less than 10% enters through clustered

ephemeral seeps in the ocean floor (typically only a few

inches long and wide that are easily covered by sand

and become undetectable). ER534. The study showed

an average transit time of 15 months for dye to travel

approximately a half mile southwest from two of the

four wells to the ocean. ER411; JA72. Dye was also

injected into one of the other two wells, but it was not

detected in the ocean. The study 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. ER423, 447-48.

The effect of the effluent/groundwater mixture on

the environment is disputed. Though Respondents

claim that the submarine groundwater flow has harmed

coral in the area, the County’s expert strongly disagrees.

On a site visit in 2014, “all reef areas appeared

essentially pristine, i.e., no observed bleached,

diseased, or otherwise stressed corals.” ER604.

II. Statutes Applicable to the Wells

A. Federal and Hawai‘i Safe Drinking

Water Programs

The federal Safe Drinking Water Act (SDWA),

enacted in 1974, protects the nation’s drinking water.

42 U.S.C. §§ 300f et seq. To that end, the SDWA

charges EPA with developing minimum requirements

for state programs that prevent UIC wells from contaminating underground sources of drinking water.

Id. § 300h. EPA has done so by regulation. 40 C.F.R.

pt. 144. Though States may seek delegated authority

to run their respective UIC programs under the

SDWA, EPA administers the program in Hawai‘i.1

UIC wells are categorized into classes under the

SDWA. The wells here are Class V—used to inject nonhazardous fluids underground. Id. § 144.81. EPA

estimates more than 650,000 Class V wells are

operating nationwide.2 Such things as agricultural

EPA, Primary Enforcement Authority for the Underground

Injection Control Program, https://www.epa.gov/uic/primary-enfo

rcement-authority-underground-injection-control-program#prim

acy_states (last visited May 7, 2019).

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 May 7,

2019).

field runoff, sanitary sewage, and water for aquifer

storage/recharge are injected into Class V wells. Ibid.

Class V wells include septic system wells for a multiple

dwelling, business establishment, or community septic

tank. Ibid.

Hawai‘i also has a safe drinking water program.

Haw. Rev. Stat. § 340E-2. It too regulates UIC wells,

see id. § 340E-2(e), and the wells here likewise constitute Class V wells under state law, Haw. Code R.

§§ 11-23-06, 11-23-07. Hawai‘i UIC permits impose a

variety of conditions, including the obligation not to

violate any Hawai‘i Department of Health (HDOH)

rules relating to “water quality and pollution.” Id.

§ 11-23-11.

B. The CWA

Enacted primarily through a series of amendments

in the 1970s to the Federal Water Pollution Control

Act, the CWA expressly furthers a broad array of

purposes. Its “objective” is “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). To achieve that

objective, the Act sets forth several “national goal[s],”

including that “the discharge of pollutants into the

navigable waters be eliminated by 1985” and that

“programs for the control of nonpoint sources of pollution be developed and implemented.” Id. § 1251(a)(1),

(7). The statute also declares that “[i]t is the policy of

the Congress to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the

development and use (including restoration, preservation, and enhancement) of land and water resources.”

Id. § 1251(b).

A “principal tool[]” is the Act’s ban on the “‘discharge

of any pollutant by any person,’ except in express

circumstances.” Nat’l Ass’n of Mfrs., 138 S. Ct. at 624

(quoting 33 U.S.C. § 1311(a)). A “‘discharge of a pollutant’” is defined as “any addition of any pollutant to

navigable waters from any point source.” 33 U.S.C.

§ 1362(12). Such prohibited additions may be authorized by a permit under the National Pollutant Discharge

Elimination System (NPDES) program. An NPDES

permit can be issued by a State under an EPAapproved 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).

The definition of “discharge of a pollutant” includes

two important limits on the general prohibition and

the attendant need for an NPDES permit. First, the

definition covers only the addition of pollutants “to

navigable waters.” “‘[N]avigable waters’” are defined

as “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). That definition notably

does not include groundwater, a term used distinctly

multiple times elsewhere in the statute and that is

absent from the provisions concerning the NPDES

program. See, e.g., id. § 1252(a) (referring to “pollution

of the navigable waters and ground waters” and the

“sanitary condition of surface and underground waters”);

id. § 1256(e) (discussing “the quality of navigable

waters and to the extent practicable, ground waters”).

Tracking those statutory distinctions, EPA’s definition

of “Waters of the United States” expressly excludes

groundwater. See 40 C.F.R. § 122.2; see also 84 Fed.

Reg. 4154, 4190 (Feb. 14, 2019).

Second, a prohibited “discharge of a pollutant” is

limited to the addition of pollutants to navigable

waters “from any point source.” A “‘point source’” is

defined as “any discernible, confined and discrete

conveyance … from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14). The statute lists as

examples: “pipe, ditch, channel, tunnel, conduit, well,

discrete fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other floating

craft.” Ibid. Many of these are objects or structures

that “do not themselves generate pollutants but

merely transport them.” S. Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004).

The CWA explicitly seeks to control “both point and

nonpoint sources of pollution,” 33 U.S.C. § 1251(a)(7)

(emphasis added), but it does not require NPDES

permitting for nonpoint source pollution. 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.” Id. § 1329(b)(1).

EPA is directed to provide States with grants to

identify and address nonpoint source pollution, such

as runoff and groundwater. See, e.g., id. § 1285(j)

(grants); id. § 1314(f) (identifying “runoff” as example

of nonpoint source pollution); id. § 1329(i) (grants for

“carrying out groundwater quality protection activities

which … will advance the State toward implementation of a comprehensive nonpoint source pollution

control program”).

III. Regulation

Injection

the

County’s

Effluent

Through permits issued by EPA and HDOH under

their respective safe drinking water programs, the

facility’s wells are regulated as Class V wells. 42

U.S.C. § 300h-1(c); Haw. Rev. Stat. § 340E-2. These

permits control the volume, rate, and constituent con-

centrations of injected effluent. EPA’s permit imposes

a nitrogen limit to address ocean water quality. Pet.

App. 139-40 ¶ 7. HDOH’s permit specifically requires

that the injection wells “not violate” state rules

“regulating various aspects of water quality and

pollution.” ER162. There is no claim that the County

has violated its UIC permits.

Hawai‘i’s Nonpoint Source Management Plan (20152020),3 approved by EPA under § 1329 of the CWA,4 is

specifically designed to monitor and control the impact

of wastewater on groundwater and coastal waters. As

the CWA envisions, the 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. The plan specifically recognizes that “groundwater discharge … impacts near-shore areas.” Id. at

10. And it discusses specific strategies to protect

“groundwater quality,” including the phase-out of

certain sources of groundwater pollution. Id. at 68-69.

The plan focuses on three priority watersheds, including the one encompassing the County’s wells (West

Maui). Ibid.

Hawai‘i’s nonpoint source management plan is, in

fact, more comprehensive than a CWA nonpoint

source program alone because it also implements the

Coastal Zone Act Reauthorization Amendments of

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/h

awaiis-implementation-plan-for-polluted-runoff-control/.

State of Hawai‘i Department of Health, Clean Water Branch

http://health.hawaii.gov/cwb/clean-water-branch-home-page/poll

uted-runoff-control-program/prc-hawaiis-implementation-plan/ (last

visited May 7, 2019).

1990 (Coastal Zone Act), 16 U.S.C. § 1455b. The Coastal

Zone Act requires a federally approved program that

“update[s] and expan[ds]” on the CWA’s nonpoint

source management program to protect coastal waters

from nonpoint sources, id. § 1455b(a)(2), such as the

effluent/groundwater mixture at issue here.

Both EPA and HDOH have long known that effluent

from the Lahaina wells reaches the ocean via

groundwater flow. Both agencies received the 1973

pre-construction environmental impact report, which

explained that injected effluent would “eventually

reach the ocean.” Pet. App. 159; ER342. In 1994, EPA

was told by HDOH that “all experts agree that the

wastewater does enter the ocean.” Pet. App. 153-54;

ER369.

But neither agency previously suggested this fact

requires NPDES permitting. Because it provided CWA

grant funding for the facility’s construction, 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. ER221, 223-24. Moreover, in its formal

response to comments on the first federal UIC permit

issued in 1996, EPA repeatedly stated that “[i]f a

hydrologic nexus is proven between the injection wells

and the ocean, surface water quality standards can be

required in the UIC permit to protect ocean water

quality.” ER312, 316; JA30; see also JA28. In fact,

it provided that response to comments specifically

calling for an NPDES permit. JA30.

As for HDOH, it has never required an NPDES

permit for any Class V UIC well, including the

County’s wells. ER362. At the start of this litigation,

EPA’s FY2011 state survey identified more than 5,600

Class V UIC wells in Hawai‘i. Pet. App. 151. In an

updated FY2016 survey, the number exceeded 6,600.5

None of those wells has an NPDES permit.

IV. Proceedings Below

A. District Court Proceedings

In 2012, Respondents sued the County, claiming

that 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 on “discharge

of any pollutant.” Furthermore, the migration of the

effluent to the ocean via diffuse subterranean groundwater flow is nonpoint source pollution that likewise

falls outside the scope of the prohibition and the

NPDES program.

The district court granted summary judgment for

Respondents on these issues in two separate orders. In

the first order, the district court found the County

liable for failing 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.

Pet. App. 56, 63. In the second order, the district court

applied the same reasoning to find the County liable

for failing to have an NPDES permit for the two

remaining wells. Id. at 93-99.

EPA, FY2016 Underground Injection Control Inventory – By

State, https://www.epa.gov/uic/underground-injection-well-inventory

(last visited May 7, 2019).

B. Ninth Circuit Appeal

The County appealed to the Ninth Circuit, which

affirmed the district court. The Ninth Circuit assumed

that the groundwater here is neither navigable water

nor a point source. It nevertheless concluded that an

NPDES permit was required for pollutants reaching

navigable waters by means of a nonpoint source.

The Ninth Circuit based its ruling on a new test for

point source pollution that turns on the traceability

and volume of pollutants reaching navigable waters.

It held 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. Id.

at 24. The Ninth Circuit put no limit on 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.” Id. at 25 (emphasis

added). In creating its new rule, the Ninth Circuit

purported to rely in part on dicta in Justice Scalia’s

plurality opinion in Rapanos. Id. at 21-24.

The Ninth Circuit rejected two other tests that, in

different terms, proffered similarly expansive views of

point source pollution. The court expressly declined to

adopt the district court’s “conduit theory” of liability.

Id. at 24. It also rejected the rule proposed by EPA as

amicus curiae, which argued that injection of pollutants into 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,” id. at 24 n.3, though it did not

explain where the terms in its own test (“fairly,”

“traceable,” and “de minimis”) are found in the statute.

The Ninth Circuit explained only that it believed its

reading to “better align[] with the statutory text.” Ibid.

V. EPA’s Interpretive Statement of April 23,

2019

Following a request for public comment, see 83 Fed.

Reg. 7126 (Feb. 20, 2018), and as promised in the

invited brief of the United States supporting certiorari

in this case, EPA published an Interpretive Statement

(Statement) on April 23, 2019, relating to the issue

here. The Statement sets forth the agency’s “first” and

“most comprehensive” “guidance” on the NPDES

program’s “applicability to releases of pollutants from

a point source to groundwater that subsequently

migrate or are conveyed by groundwater to jurisdictional surface waters.” 84 Fed. Reg. 16,810, 16,811

(Apr. 23, 2019). It acknowledges a previous “[l]ack of

consistent and comprehensive direction from EPA.” Id.

at 16,820. And, it expressly “departs from the position

the Agency took in the County of Maui amicus brief”

before the Ninth Circuit, determining that the brief

“erred” and “failed to take into account Congress’s

unique treatment of groundwater in the CWA when

interpreting the definition of discharge of a pollutant.”

Id. at 16,819-20.

EPA concludes “that the Act is best read as

excluding all releases of pollutants from a point source

to groundwater from NPDES program coverage and

liability under [§ 1311] of the CWA, regardless of a

hydrologic connection between the groundwater and a

jurisdictional surface water.” Id. at 16,811 (emphasis

added). It reaches this conclusion “based on a holistic

analysis of the statute, its text, structure, and legislative history.” Ibid. According to EPA, Congress

“inten[ded] to leave regulation of releases of pollutants

to groundwater with the states” and “a mosaic of

[other] laws and regulations.” Id. at 16,814, 16,824.

The Statement does not address how the CWA’s text

defines the point source program and thereby distinguishes between point and nonpoint source pollution,

determining that “this inquiry is not relevant as

applied to groundwater.” Id. at 16,813. Rather, “releases

of pollutants from a point source to groundwater are

categorically excluded from the scope of the NPDES

program” and simply “not subject to the point source

analysis.” Id. at 16,821 (emphasis added).

SUMMARY OF ARGUMENT

I. The history of the CWA demonstrates that

Congress chose deliberately to control pollution added

to navigable waters “from point sources” differently

than that added “from nonpoint sources.” As one court

of appeals has said, this two-track regulatory approach

is an organizational paradigm of the Act.

A. In 1972, Congress amended the Federal Water

Pollution Control Act to shift from enforcing water

quality standards to controlling point source discharges. The amendments prohibited “any addition of

any pollutant to navigable waters from any point

source” unless authorized by a permit. 33 U.S.C.

§ 1362(12).

B. At the same time, Congress tasked States with

responsibility for controlling pollution from nonpoint

sources. Congress maintained that dichotomy in

amendments in 1977, and strengthened the nonpoint

source program in 1987. That year, Congress added 33

U.S.C. § 1329, requiring States to submit nonpoint

source management plans for federal approval.

The question here is whether a statute that draws

this distinction requires a point source permit where

pollutants are being delivered by nonpoint sources to

navigable waters. The Ninth and Fourth Circuits

believe that it does. Other circuits disagree.

II. Every tool of statutory interpretation confirms

a bright-line and common sense reading of the CWA:

a point source permit is only required for the delivery

of pollutants to navigable waters by means of a point

source or series of point sources. This follows unambiguously from the text, structure, context, history,

and purposes of the CWA. And it is confirmed by

several clear-statement rules, which refute the Ninth

and Fourth Circuit’s readings of the statute.

A.1. The statutory text unambiguously requires

point source permitting only where pollutants are

delivered to navigable waters by a point source or

series of point sources. The CWA prohibits “any addition of any pollutant to navigable waters from any

point source” unless authorized by a permit. 33 U.S.C.

§ 1362(12) (emphasis added). Reduced to its essence,

the textual question is this: what do “from” and “any”

mean?

The answer is provided, in significant part, by the

statutory definition of “point source.” A “‘point source’”

is defined as a “discernible, confined and discrete

conveyance … from which pollutants are or may be

discharged.” Id. § 1362(14) (emphasis added). It is not

a point of origin but a means of transport. This

definition shows that “from any point source” is most

naturally understood as indicating that a point

source—being a particular way of moving pollutants—

must be what delivers rather than originates pollutants. Thus, the CWA bars any addition of any

pollutant to navigable waters delivered by any point

source unless authorized by a permit.

The meaning of “any,” under this Court’s precedent,

is “‘one or some indiscriminately of whatever kind.’”

United States v. Gonzales, 520 U.S. 1, 5 (1997)

(citation omitted). An NPDES permit is required,

therefore, whether a point source or a series of point

sources is delivering pollutants to navigable waters.

2. This reading—a means-of-delivery test for

NPDES permitting—is confirmed by the CWA’s

structural distinction between point and nonpoint

source pollution. It leaves for the nonpoint source

program the many circumstances where nonpoint

sources deliver pollutants to navigable waters. By

contrast, the Ninth and Fourth Circuit’s tests enlarge

the point source program to cover most (if not all) of

those circumstances.

3. The means-of-delivery test is further supported

by other CWA provisions. The CWA consistently

describes a point source discharge as the release of

pollutants “into” navigable waters, which suggests

“entry” or “insertion” by the point source or sources. In

addition, the CWA’s punitive provisions impose significant penalties, which calls for the more predictable

results offered by the means-of-delivery test.

4. Several aspects of the CWA’s legislative history

also support the means-of-delivery test. For example,

Congress sought specifically to eliminate the need to

prove a connection between a point source and navigable waters, something the Ninth and Fourth Circuit’s

tests demand but the means-of-delivery test does not.

Moreover, Congress specifically refused to adopt

proposals to mandate NPDES permits for precisely the

nonpoint source pollution here—pollutants that reach

navigable waters by groundwater.

5. Finally, the means-of-delivery test advances the

CWA’s many purposes by honoring the distinction

between point and nonpoint source pollution. The

means-of-delivery test does not exempt individuals

and entities from regulation. Nonpoint source pollution

remains subject to state nonpoint source management

programs required and funded by the CWA, as

Congress intended. It is also subject to other state and

federal laws, like the SDWA and the Resource

Conservation and Recovery Act (RCRA).

B. The means-of-delivery test is additionally confirmed by the clear-statement rules in Utility Air

Regulatory Group v. EPA, 573 U.S. 302 (2014)

(UARG), and SWANCC, which refute the Ninth and

Fourth Circuit’s tests. Both of those tests would have

sweeping and transformative effects, including a vast

expansion of NPDES permitting to widespread methods

of stormwater and runoff management, residential

septic tanks, and anything else to which pollutants in

navigable waters might be traced. But this Court will

not read a statute to have such effects absent a clear

statement from Congress, and the statutory text

cannot be said to clearly set forth either the Ninth or

Fourth Circuit’s tests.

III. The Ninth Circuit should be reversed under

either the means-of-delivery test or EPA’s recent

Interpretive Statement. The County’s wells are not the

means that deliver pollutants to navigable waters. The

wells inject treated effluent only into groundwater,

which the Ninth Circuit assumed (correctly) is neither

navigable water nor a point source. And it is the

groundwater that conveys to the ocean. Alternatively,

under EPA’s view of the statute, the County’s injections do not require an NPDES permit because all

releases to groundwater are categorically excluded

from the point source program.

ARGUMENT

I. In the CWA, Congress Chose Deliberately

to Control Pollution Added to Navigable

Waters “From Point Sources” Differently

Than Pollution Added “From Nonpoint

Sources.”

A. The CWA changed the focus of federal

regulation from enforcing water quality

standards to controlling point source

discharges.

The CWA grew out of the Federal Water Pollution

Control Act, enacted in 1948. Act of June 30, 1948,

Pub. L. No. 80-845, 62 Stat. 1155 (1948). That predecessor law was based on “water quality standards,”

which “serve[d] both to guide performance by polluters

and to trigger legal action to abate pollution.” EPA v.

California ex rel. State Water Res. Control Bd., 426

U.S. 200, 202 (1976). But this legislation “proved

ineffective,” because it “focused on the tolerable effects

rather than the preventable causes of water pollution.”

Id. at 202. It was “very difficult” to govern and police

the conduct of individual polluters. Ibid. The Senate

Committee on Public Works eventually concluded that

“the Federal water pollution control program … has

been inadequate in every vital aspect,” citing the

problems with relying on “stream quality.” S. Rep.

No. 92-414, at 7-8, reprinted in 1972 U.S.C.C.A.N. at

3674-75.

In 1972, Congress enacted sweeping amendments,

laying the foundation of what is now called the Clean

Water Act. The amendments “were viewed by Congress

as a ‘total restructuring’ and ‘complete rewriting’ of

the existing water pollution legislation.” Milwaukee II,

451 U.S. at 317. “[A]imed at achieving maximum

‘effluent limitations’ on ‘point sources,’” the amendments shifted the law’s focus to “direct restrictions on

discharges.” California ex rel. State Water Res. Control

Bd., 426 U.S. at 204. Congress declared it “‘the

national goal that the discharge of pollutants into the

navigable waters be eliminated by 1985.’” Id. at 203.

The amendments “established a new system of

regulation under which it is illegal for anyone to

discharge pollutants into the Nation’s waters except

pursuant to a permit.” Milwaukee II, 451 U.S. at 31011. Congress made unlawful “the discharge of any

pollutant by any person,” 33 U.S.C. § 1311(a), and

defined “‘discharge of a pollutant’” as “any addition of

any pollutant to navigable waters from any point

source,” id. § 1362(12). It defined “‘point source’” as a

subset of the many ways by which pollutants can

travel, including pipes, ditches, and any other “discernible, confined and discrete conveyance … from which

pollutants are or may be discharged.” Id. § 1362(14).

This new point source program “facilitate[d] enforcement by making it unnecessary to work backward

from an overpolluted body of water to determine which

point sources are responsible and which must be

abated.” California ex rel. State Water Res. Control

Bd., 426 U.S. at 204. “Every point source discharge

[was] prohibited unless covered by a permit.”

Milwaukee II, 451 U.S. at 318. And an individual

discharger’s compliance with its permit was to be

“measured against strict technology-based effluent

limitations”—that is, “restriction[s] established by a

State or the [EPA] on quantities, rates, and concentra-

tions of chemical, physical, biological, and other

constituents which are discharged from point sources.”

California ex rel. State Water Res. Control Bd.,

426 U.S. at 204. “With effluent limits,” the Senate

Committee explained, EPA “need not search for a

precise link between pollution and water quality.”

S. Rep. No. 92-414, at 8, reprinted in 1972 U.S.C.C.A.N.

at 3675. Water quality standards remained as a

“supplement[]” to effluent limitations. California ex

rel. State Water Res. Control Bd., 426 U.S. at 205 n.12.

B. Congress chose repeatedly to regulate

pollution added from nonpoint sources

differently.

The 1972 amendments left the States “nearly exclusive responsibility for containing pollution from nonpoint

sources.” Rapanos, 547 U.S. at 803 (Stevens, J.,

dissenting). “From the passage of the Act, Congress

imposed extensive regulations and certification requirements on discharges from point sources, but originally

relied almost entirely on state-implemented planning

processes to deal with nonpoint sources.” Or. Nat.

Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 780

(9th Cir. 2008).

The Senate Committee concluded that nonpoint

sources “are major contributors to the Nation’s water

pollution problem,” but also recognized that “many

nonpoint sources of pollution are beyond present

technology of control.” S. Rep. No. 92-414, at 39,

reprinted in 1972 U.S.C.C.A.N. at 3705-06. The

amendments thus treated nonpoint source pollution

differently. They charged EPA with “develop[ing], in

conjunction with other appropriate Federal agencies,

information regarding nonpoint sources and their

control.” Ibid. And they tasked States with “develop[ing]

plans for nonp[oint] source pollution control,” and with

submitting those plans to EPA, under what was then

enacted as section 208. Ibid.

Congress chose to maintain this division of responsibility in 1977, when it revisited the CWA. The

Senate Report on amendments to the CWA passed

that year explained that “[i]n 1972, the Congress made

a clear and precise distinction between point sources,

which would be subject to direct Federal regulation,

and nonpoint sources, control of which was specifically

reserved to State and local governments through the

section 208 process.” S. Rep. No. 95-370, at 8 (1977),

reprinted in 1977 U.S.C.C.A.N. 4326, 4334. The report

suggested that principles of federalism motivated

the decision to stay the course: “Between requiring

regulatory authority for nonpoint sources, or continuing the section 208 experiment, the committee chose

the latter course, judging that these matters were

appropriately left to the level of government closest to

the sources of the problem.” S. Rep. No. 95-370, at 9,

reprinted in 1977 U.S.C.C.A.N. at 4335.

Congress again reinforced the Act’s distinction

between point and nonpoint source pollution ten years

later. The Water Quality Act of 1987 amended the

CWA’s declaration of goals and policies to state, as it

still does, that “it is the national policy that programs

for the control of nonpoint sources of pollution be

developed and implemented.” 33 U.S.C. § 1251(a)(7).

In furtherance of that policy, Congress added 33

U.S.C. § 1329, requiring states to submit for federal

approval management programs “for controlling pollution added from nonpoint sources to the navigable

waters within the State.” Id. § 1329(b)(1).

Acknowledging the substantial problem of nonpoint

source pollution, Congress chose to strengthen the

two-track regulatory approach. These new provisions

“reflect[ed] Congress’ awareness that ‘[t]he evidence of

nonpoint pollution continues to grow’ and that ‘[i]t has

been estimated that 50 percent of all water pollution

comes from nonpoint sources.’” Nat. Res. Def. Council

v. EPA, 915 F.2d 1314, 1318 n.4 (9th Cir. 1990)

(quoting S. Rep. No. 99-50, at 8 (1985), reprinted in 2

Legislative History of the Water Quality Act of 1987,

at 1420, 1429 (1988)). Even so, Congress did not

amend the point source permitting program to cover

nonpoint source pollution. Indeed, the floor discussion

in the Senate reaffirmed the distinction, describing

§ 1329 as “a path somewhat different from that taken

for point sources” and “not an excuse to reduce the

effort or relax the requirements on the point source

side.” 133 Cong. Rec. 1279 (1987) (statement of Sen.

Durenberger) (emphasis added).

It is not an overstatement to say, as one court has,

that the “disparate treatment of discharges from point

sources and nonpoint sources is an organizational

paradigm of the Act.” Or. Nat. Desert Ass’n, 550 F.3d

at 780. Through the NPDES program, the CWA seeks

to control “any addition of any pollutant to navigable

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

(emphasis added). Through state management programs, the CWA seeks to control “pollution added

from nonpoint sources to the navigable waters.” Id.

§ 1329(b) (emphasis added). There is a clear dichotomy

in the statute based on the method of transport “from”

which pollutants are added to navigable waters.

Unsurprisingly, the courts of appeals and EPA have

consistently “recognized the Act’s separate treatment

of point and nonpoint source pollution.” Or. Nat.

Desert Ass’n v. Dombeck, 172 F.3d 1092, 1097 (9th Cir.

1998). “[T]he statute clearly indicates that there is a

category of nonpoint source pollution, and leaves the

regulation of nonpoint source pollution to the states.”

Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 219

(2d Cir. 2009). “The CWA’s treatment of point-source

discharges differs from its treatment of nonpointsource pollution.” Ctr. for Native Ecosystems v. Cables,

509 F.3d 1310, 1331 (10th Cir. 2007). “Water pollution

arising from nonpoint sources is to be dealt with

differently.” United States ex rel. Tenn. Valley Auth. v.

Tenn. Water Quality Control Bd., 717 F.2d 992, 999

(6th Cir. 1983). And, “[p]oint source pollution is distinguished from ‘nonpoint source pollution,’ which is

regulated in a different way and does not require the

type of permit at issue in this litigation.” League of

Wilderness Defs./Blue Mountains Biodiversity Project

v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002). For

its part, EPA’s regulations consistently draw a line

between point and nonpoint source pollution. See, e.g.,

40 C.F.R. § 130.2(g), (h) (defining separately the

amount of pollutant “loading” a water can receive from

point sources as opposed to nonpoint sources).

The question in this case is whether a point source

permit should ever be required where pollutants are

being delivered to navigable waters by a nonpoint

source. Some circuits, including most recently the

Sixth Circuit, have concluded that the point source

program does not reach that far. Point source permitting is required only where the pollutant “make[s] its

way to a navigable water … by virtue of a point-source

conveyance.” Ky. Waterways All., 905 F.3d at 934; see

also Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45

(5th Cir. 1980) (a point source must “be the means by

which pollutants are ultimately deposited into a navigable water”); Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York, 273 F.3d 481, 491

(2d Cir. 2001) (“[A] ‘point source must introduce the

pollutant into navigable water from the outside world.’”).

In contrast, both the Fourth and Ninth Circuits

have held that a point source permit may be required

even where pollution is delivered to navigable waters

by a nonpoint source. The Fourth Circuit has held that

an NPDES permit is required so long as the pollutants

started at a point source that has a “direct hydrological

connection” to the navigable waters. Upstate Forever,

887 F.3d at 651-52. The Ninth Circuit below held that

a point source permit is required wherever pollutants

can be “traced” from navigable waters to a point source,

even if the pollutants are delivered to the navigable

waters by a nonpoint source. Pet. App. 24 n.3.

II. Point Source Permitting Is Required Only

Where Pollutants Are Being Delivered By

a Point Source or Series of Point Sources

To Navigable Waters.

There is just one permissible reading of the statute:

a point source permit is necessary only where pollutants are being delivered to navigable waters by a

point source or series of point sources. This follows

unambiguously from the text, structure, context, history,

and purposes of the CWA. See Abramski v. United

States, 573 U.S. 169, 179 (2014) (“[W]e must (as usual)

interpret the relevant words not in a vacuum, but with

reference to the statutory context, structure, history,

and purpose.”) (internal quotation marks omitted). It

is also the only reading of the statute that comports

with the clear-statement rules applied in UARG and

SWANCC, which apply here, as well.

A. Congress unambiguously defined point

source pollution based on the means of

delivery to navigable waters.

Starting with the text, every tool of statutory

construction, including common sense, confirms a

bright-line test for point source pollution: whether a

point source or series of point sources is the means of

delivering pollutants to navigable waters. Abramski,

573 U.S. at 179 (noting “common sense” as a “tool[] of

divining meaning”). An NPDES permit is required

where pollutants are delivered to navigable waters by

point sources, such as a pipe, ditch, or similar means

of transport. A point source permit is not required if

pollutants are instead being delivered to navigable

waters by nonpoint sources, such as runoff or groundwater, which the CWA regulates in a different way.

1. A means-of-delivery test is found

clearly in the statutory text.

The meaning of the statutory text turns on two

words: “from” and “any.” The CWA prohibits “the

discharge of any pollutant by any person” without a

permit. 33 U.S.C. § 1311(a). The phrase “‘discharge of

a pollutant’” is further defined as “any addition of any

pollutant to navigable waters from any point source.”

Id. § 1362(12). So what constitutes an “addition …

from any point source”?

The meaning of “from”

In isolation, “from” is ambiguous. Like many other

prepositions, it “is a ‘chameleon’ that ‘must draw its

meaning from its context.’” Nat’l Ass’n of Mfrs., 138

S. Ct. at 630 (quoting Kucana v. Holder, 558 U.S. 233,

245 (2010)). “From” could be used to indicate the

“starting point,” the “source,” the “cause,” the “means,”

the “agent or instrumentality,” the “reason,” or the

“basis” of something. From, Webster’s Third New

International Dictionary of the English Language

Unabridged 913 (1971) (Webster’s); From, The Random

House Dictionary of the English Language 570 (1967)

(Random House).

Two possible meanings stand out in this case. Is

“from” being used to indicate that a “point source” is

the starting point of the addition of pollutants to

navigable waters? Or, is “from” being used to indicate

that a “point source” is the means or instrumentality

of the addition of pollutants to navigable waters?

Context—in particular, the statutory definition of

“point source”—provides the answer. The statute

defines a point source not as a place of origin but as a

means of transport. Under the CWA, a “point source”

is a certain kind of conveyance—specifically, a pipe,

ditch, or other “discernible, confined and discrete

conveyance … from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14) (emphasis added). A

conveyance, of course, is a “means of carrying or

transporting something” from one place to another.

Conveyance, Webster’s 499; Conveyance, Random

House 320. As this Court explained in Miccosukee

Tribe, the statutory definition “makes plain” that the

key characteristic of point sources is not that they may

sometimes “generate” pollutants but that they always

“transport” pollutants. 541 U.S. at 105.

This definition answers clearly what “from” means

in the phrase “from any point source.” Replacing “point

source” with its definition, the statute reads as such:

“any addition of any pollutant to navigable waters

from any pipe, ditch, or similar means of transport.”

Given that context, the “most natural[] read[ing],”

Nat’l Ass’n of Mfrs., 138 S. Ct. at 630, is that “from”

means delivered by. In other words, the CWA bars

“any addition of any pollutant to navigable waters

delivered by any pipe, ditch, or similar means of

transport.” See Upstate Forever, 887 F.3d at 659

(Floyd, J., dissenting) (“For there to be an ‘addition ...

from a point source,’ the point source must convey,

transport, or introduce the pollutant to navigable

waters.”) (citation omitted).

In context, “from” is plainly being used to indicate

that “any point source” is the means or instrumentality

of the “addition to navigable waters.” This is a common

use of “from” when discussing something that conveys

material or information. For example, many Americans

during World War II received news of the D-Day

invasion from the radio. The word “from” identifies the

radio as the means or instrumentality that delivered

the news. Similarly, here, “from” identifies that any

pipe, ditch, or similar means of transport is the means

or instrumentality that delivers pollutants to navigable waters. See United States v. Wilson, 133 F.3d

251, 264 (4th Cir. 1997) (violation of CWA requires

knowledge of facts, including “method or instrumentality used to discharge the pollutants”).

This understanding of “from” comports with the way

this Court has interpreted and characterized § 1311(a)

over the years. This Court held in Miccosukee Tribe

that while “a point source need not be the original

source” of the pollutant to trigger NPDES permitting,

“it need … convey the pollutant to ‘navigable waters.’”

541 U.S. at 105 (emphasis added). This Court also has

consistently characterized § 1311(a) as “prohibit[ing]

the discharge of any effluent into a navigable body of

water unless the point source has obtained an NPDES

permit.” Arkansas v. Oklahoma, 503 U.S. 91, 102

(1992) (emphasis added).6 The repeated use of “into,”

See also, e.g., Nat’l Ass’n of Mfrs., 138 S. Ct. at 625 (“NPDES

permits issued under § 1342 ‘authoriz[e] the discharge of

pollutants’ into certain waters”) (emphasis added); Decker v. Nw.

Envtl. Def. Ctr., 568 U.S. 597, 602 (2013) (CWA requires NPDES

permits “before discharging pollution from any point source into

the navigable waters of the United States”) (emphasis added);

even if not fully considered, evidences that the statute

is most naturally read to cover only point sources that

“introduc[e]” or “insert[]” pollutants to navigable waters.

Into, Webster’s Third New International Dictionary of

the English Language Unabridged 1185 (1993). This

Court should now confirm that under the plain text,

an NPDES permit is required only for the addition of

pollutants to navigable waters delivered by “any point

source”—i.e., a means-of-delivery test.

Unlike the means-of-delivery test, the Ninth and

Fourth Circuit’s tests do not follow from the statutory

text. The Fourth Circuit does not even attempt to offer

any textual basis for its “direct hydrological connection” test. That is because, as the Ninth Circuit

recognized, such a test “reads two words into the CWA

(‘direct’ and ‘hydrological’) that are not there.” Pet.

App. 24 n.3. But the Ninth Circuit’s test suffers the

same flaw. The Ninth Circuit’s “de minimis” requirement, for example, is both created from whole cloth

and irreconcilable with § 1311(a)’s prohibition of “any

addition of any pollutant.”

The Ninth Circuit roots its traceability test in a

judge-made definition of nonpoint source pollution as

pollution “not traceable to any single discrete source.”

Sackett v. EPA, 566 U.S. 120, 122 (2012) (“The Clean Water Act

prohibits, among other things, ‘the discharge of any pollutant by

any person,’ § 1311, without a permit, into the ‘navigable waters

….’”) (emphasis added); Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 650 (2007) (“The Clean Water Act (CWA)

established a National Pollution Discharge Elimination System

(NPDES) that is designed to prevent harmful discharges into the

Nation’s waters.”) (citation omitted; emphasis added); Int’l Paper

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

prohibits the discharge of any effluent into a navigable body of

water unless the point source has obtained an NPDES permit.”)

(emphasis added).

League of Wilderness Defs., 309 F.3d at 1184. Its

“approach,” the Ninth Circuit explains, “is firmly

grounded in our case law, which distinguishes between

point source pollution and nonpoint source pollution

based on whether pollutants can be ‘traced’ or are

‘traceable’ back to a point source.” Pet. App. 24 n.3.

But this approach lacks any grounding in the

statutory text. The statute defines a “point source” as a

particular kind of pollution conveyance; “nonpoint

sources” are simply all conveyances that do not satisfy

the definition of point source. See Miccosukee Tribe,

541 U.S. at 106 (distinction between point and nonpoint

sources turns on whether a conveyance “fall[s] within

the ‘point source’ definition”). The Ninth Circuit failed

to start from the statutory definition of “point source”

as a particular means of delivery. By grounding its

analysis instead in its own judge-made definition of

nonpoint source, the Ninth Circuit mistakenly introduced and relied upon a concept found nowhere in the

statute (“traceability”) at the expense of the one

actually in the statute (“conveyance”).

The meaning of “any”

The remaining question is the meaning of “any” in

the phrase “from any point source,” and it is answered

readily by this Court’s precedent. This Court has

previously noted that “[r]ead naturally, the word ‘any’

has an expansive meaning, that is, ‘one or some

indiscriminately of whatever kind.’” Gonzales, 520

U.S. at 5. Plugging in that natural reading, § 1311(a)

applies to: “any addition of any pollutant to navigable

waters delivered by one or some point sources indiscriminately of whatever kind.” This means that an

NPDES permit is required whether pollutants are

delivered to navigable waters by a single point source

or multiple point sources together (i.e., a series of point

sources). Put more simply, a point source permit is

required not only for point-source-to-navigable-water

pollution, but also for point-source-to-point-source-tonavigable-water pollution, and so on.

The latter situations are what Justice Scalia

suggested, in dicta in Rapanos, could require a point

source permit. Though he noted specifically that the

plurality was “not decid[ing] this issue,” Justice Scalia

observed that releases by point sources into “intermittent watercourses” might need an NPDES permit

if those features act as “intermittent channels” that

together deliver pollutants to navigable waters. 547

U.S. at 743 (plurality op.). He noted that “many courts

have held that such upstream, intermittently flowing

channels themselves constitute ‘point sources’ under

the Act.” Ibid. That is precisely what the word “any”

contemplates; the CWA bars “any addition of any

pollutant to navigable waters from one or multiple

point sources.” NPDES permitting is required where

pollutants are delivered to navigable waters by a

series of point sources, even though only the final point

source is “directly” discharging into the navigable

water, as Justice Scalia observed.

The Ninth and Fourth Circuits assert that Justice

Scalia’s dicta supports their conclusion that a point

source permit is at least sometimes required where

pollutants are delivered to navigable waters by nonpoint sources. See Pet. App. 21-23; Upstate Forever,

887 F.3d at 649. But Justice Scalia never once

mentions nonpoint sources, much less ever says that a

point source permit is required where a nonpoint

source is what conveys the pollutants to navigable

waters. To the contrary, he quotes and does not question this Court’s holding in Miccosukee Tribe that a

point source “‘need[s] [to] convey the pollutant to

“navigable waters.”’” 547 U.S. at 743 (plurality op.).

Contra Upstate Forever, 887 F.3d at 650 n.11 (suggesting that Justice Scalia “clarified” Miccosukee Tribe).

It is simply untrue that Justice Scalia’s dicta calls

for anything more than what the text plainly demands:

that “pollutants which travel through multiple point

sources before discharging into navigable waters are

still covered by the CWA.” Ky. Waterways All., 905

F.3d at 936. Every case he cited involved pollutants

delivered to navigable waters by a point source or

series of point sources. 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 Tribe, 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).

2. A means-of-delivery test accords

with the CWA’s structure.

The County’s reading of the statutory text—as setting

forth a means-of-delivery test for NPDES permitting—

aligns with the CWA’s “organizational paradigm.” Or.

Nat. Desert Ass’n, 550 F.3d at 780. Under the meansof-delivery test, a point source permit is required only

where one point source, or a series of point sources, is

delivering pollutants to navigable waters. The test

leaves for the CWA’s nonpoint source program the

many circumstances where one or more nonpoint

sources are delivering pollutants to navigable waters.

This is consistent with the CWA’s “clear[] indicat[ion]

that there is a category of nonpoint source pollution,”

Cordiano, 575 F.3d at 219, and ensures that “the

NPDES permit program stands alongside of the

system controlling ‘nonpoint sources’ of pollution,”

Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d

580, 587 (6th Cir. 1988).

The same cannot be said of the Ninth and Fourth

Circuit’s tests. Unlike the means-of-delivery test, both

the Ninth and Fourth Circuits would require point

source permitting in circumstances where a nonpoint

source is delivering pollutants to navigable waters.

The Fourth Circuit would require an NPDES permit

so long as the pollutants started at a point source that

has a “direct hydrological connection” to navigable

waters, even if the pollutants are delivered to the navigable waters by a nonpoint source. Upstate Forever,

887 F.3d at 651-52. The Ninth Circuit’s test is broader

still. It would require a point source permit wherever

pollutants can be “traced,” through any medium and

any nonpoint source, between navigable waters and an

identifiable point source. Pet. App. 24.

Both tests would greatly enlarge the point source

program in contravention of Congress’s clear decision

“to exempt a class of pollution from the CWA’s permit

requirement.” Cordiano, 575 F.3d at 224. In 1987,

Congress maintained the two-track regulatory approach

knowing that “50 percent of all water pollution comes

from nonpoint sources,” Nat. Res. Def. Council, 915

F.2d at 1318 n.4. But these tests—the Ninth’s even

more than the Fourth’s—would effectively “eviscerate

the point source requirement and undo Congress’s

choice.” Cordiano, 575 F.3d at 224. Most (if not all)

pollutants that reach navigable waters can surely be

traced to an identifiable point source at some stage in

their journey. See 84 Fed. Reg. at 16,823 (“These

decisions expand the Act’s coverage beyond what

Congress envisioned, potentially sweeping into the

scope of the statute commonplace and ubiquitous

activities such as releases from homeowners’ backyard

septic systems.”).

3. Other provisions in the CWA support

a means-of-delivery test.

The County’s reading of § 1311(a) is also supported

by other provisions in the CWA. “It is a 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.” Nat’l

Ass’n of Home Builders, 551 U.S. at 666 (internal

quotation marks omitted). These other provisions

further demonstrate that Congress intended a meansof-delivery test for NPDES permitting.

To begin with, a means-of-delivery test is the only

reading of § 1311(a) that tracks the way Congress

describes the point source program in other provisions

of the CWA. Time and again, the CWA describes a

point source discharge—i.e., a “discharge of pollutants”—

as the release of pollutants “into” navigable waters by

point sources. The word “into” suggests “ent[ry],”

“penetra[tion],” “introduction,” or “insertion” by the

point source. Into, Webster’s 1884-85; Into, Random

House 746. That is consistent only with the means-ofdelivery test, which requires pollutants be delivered by

a point source or series of point sources to navigable

waters. As the Sixth Circuit has explained, “‘into’

leaves no room for intermediary [nonpoint sources] to

carry the pollutants.” Ky. Waterways Alliance, 905

F.3d at 934.

This description of point source discharges as being

“into navigable waters” is found throughout the Act.

For example, the CWA declares as national goals and

policies that “the discharge of pollutants into the

navigable waters be eliminated by 1985” and that “a

major research and demonstration effort be made to

develop technology necessary to eliminate the discharge of pollutants into the navigable waters.” 33

U.S.C. § 1251(a)(1), (a)(6) (emphases added). 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.” Id. § 1342(b) (emphasis added). Likewise,

permitted point source discharges must meet “effluent

limitations,” which are defined as restrictions on pollutants “discharged from point sources into navigable

waters.” Id. § 1362(11) (emphasis added). The CWA

also consolidates within its purview “[d]ischarges of

pollutants into the navigable waters” previously subject to several other federal laws. Id. § 1371(b) (emphasis

added). These are just a few of many instances.

A second set of CWA provisions that support the

means-of-delivery test are the statute’s punitive

measures. As this Court has recognized, the CWA

“imposes substantial criminal and civil penalties for

discharging any pollutant into waters covered by the

Act without a permit from the Corps.” U.S. Army

Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1812

(2016) (citing 33 U.S.C. §§ 1311(a), 1319(c), (d),

1344(a)). Civil penalties can be as much as $54,833 per

day per violation. 40 C.F.R. § 19.4 (2019); 84 Fed. Reg.

2056, 2059 (Feb. 6, 2019). “[T]he consequences to

landowners even for inadvertent violations can be

crushing.” Hawkes, 136 S. Ct. at 1816 (Kennedy, J.,

concurring).

These penalties cry out for “some measure of

predictability,” ibid., so persons can clearly know

whether an NPDES permit is required or not. The

means-of-delivery test provides a bright-line analysis

for homeowners, businesses, municipalities, and regulated entities that need to know—before undertaking

a project—whether they must undergo the “arduous,

expensive, and long” process to obtain a permit. Id. at

1815 (majority op.). The question is simply whether

pollutants will be delivered by a point source or series

of point sources to navigable waters.

By contrast, the Ninth and Fourth Circuit’s tests

have far less predictable outcomes. Questions of traceability and “direct hydrological connection” will leave

regulated entities and regulators “‘to feel their way on

a case-by-case basis’” at great expense and secondguessing. Sackett, 566 U.S. at 124 (quoting Rapanos,

547 U.S. at 758 (Roberts, C.J., concurring)). Even with

sophisticated modeling (not readily available to the

average homeowner), answers may not be knowable

with any certainty until after the project is completed

and the pollutants’ path can physically be mapped.

In this case, though EPA knew for years that the

effluent was reaching the ocean, it still required a

complex, multi-year, dye-tracer study to determine

whether the well injections have “a close and direct

hydrological connection to regulated coastal water.”

ER265. And despite this testing, it remains unknown

where effluent from two of the County’s injection wells

enters the ocean and whether some effluent is entering

the ocean “at deeper water depths and further from

shore” than what the dye showed. ER427-28, 434-36,

482 ¶ 24, 484 ¶ 28, 526. How will everyday homeowners planning a septic system safely predict whether

they risk “crushing” penalties for failing to obtain an

NPDES permit?

4. The CWA’s legislative history supports a means-of-delivery test.

Legislative history explaining the creation of the

CWA’s point source program provides yet additional

support for the means-of-delivery test. According to

the Senate Committee on Public Works, the 1972

amendments sought to implement a new system that

controlled “[t]he discharge of pollutants into the

navigable waters,” in place of the previous system of

“search[ing] for a precise link between pollution and

water quality.” S. Rep. No. 92-414, at 7-8, reprinted in

1972 U.S.C.C.A.N. at 3674-75. In so doing, Congress

aimed to make enforcement easier on regulators. The

shift to “direct restrictions on discharges [sought to]

facilitate enforcement by making it unnecessary to

work backward from an overpolluted body of water to

determine which point sources are responsible and

which must be abated.” California ex rel. State Water

Res. Control Bd., 426 U.S. at 204.

The means-of-delivery test is more consistent with

this history. It does not require “work[ing] backward”

to establish any “link” between a navigable water and

a point source or sources. The only question that need

be answered is the straightforward one posed by the

Senate Committee, answerable without any computer

modeling or scientific studies: whether the point source

(or series of point sources) is or will be “discharg[ing]

into the navigable waters” by delivering pollutants to

those waters.

In contrast, the Ninth and Fourth Circuit’s tests

introduce the case-by-case “search for a precise link”

that the 1972 amendments were meant to eliminate.

While the link that each test requires is not the

same water-quality link that concerned the Senate

Committee, both tests by their nature require working

backward to prove a sufficient “connection between a

point source and a navigable water … to support

liability under the CWA.” Pet. App. 25; see also

Upstate Forever, 887 F.3d at 651 (“[T]he connection

between a point source and navigable waters must be

clear.”).

Additional relevant history is Congress’s refusal to

adopt several proposals to mandate NPDES permitting for the precise type of nonpoint source pollution in

this case—pollutants that reach navigable waters by

way of groundwater. During the Act’s enactment,

Congress debated several such proposals. The EPA

administrator urged that NPDES permits should be

mandated for the addition of pollutants to groundwater because those pollutants could reach navigable

waters “through the ground water table.” 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 requiring NPDES permitting for pollutants

discharged to groundwater because “ground water gets

into navigable waters.” 118 Cong. Rec. 10,666 (1972).

Congress rejected these proposals. See S. Rep. No.

92-414, at 73, reprinted in 1972 U.S.C.C.A.N. at 373839; 84 Fed Reg. at 16,815-16. As the Fifth Circuit has

explained, “the 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).

This history, too, supports the County’s reading of

the statute. Consistent with Congress’s rejection of the

groundwater amendments, the means-of-delivery test

does not require an NPDES permit for point source

releases where groundwater delivers pollutants to

navigable waters as it does in this case. That is

nonpoint source pollution subject to the CWA’s nonpoint

source program. See infra Section III.A. In conflict

with this history, the Ninth and Fourth Circuits have

required and would require NPDES permits under

their tests.

5. A means-of-delivery test is consistent with the CWA’s purposes.

The Ninth and Fourth Circuits concluded that the

means-of-delivery test would not further the CWA’s

purpose of “restor[ing] and maintain[ing] the …

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

That test, they reasoned, “would greatly undermine

the purpose of the Act,” Upstate Forever, 887 F.3d at

652, and “make a mockery of the CWA’s prohibitions,”

Pet. App. 31.

But as this Court has explained on many occasions,

appeals to purpose are often the “last redoubt of losing

causes,” Dir., Office of Workers’ Comp. Programs, Dep’t

of Labor v. Newport News Shipbuilding & Dry Dock

Co., 514 U.S. 122, 135 (1995), and may not “obscure

what the statutory language makes clear,” Nat’l Ass’n

of Mfrs., 138 S. Ct. at 634. “[T]he textual limitations

upon a law’s scope are no less a part of its ‘purpose’

than its substantive authorizations.” Rapanos, 547

U.S. at 752 (plurality op.). In fact, “[t]he limitations

expressed in statutory terms [are] often the price of

passage, and no statute yet known pursues its stated

purpose at all costs.” Henson v. Santander Consumer

USA Inc., 137 S. Ct. 1718, 1725 (2017) (internal

quotation marks and alterations omitted).

What the Ninth and Fourth Circuits ignore, moreover, is that the means-of-delivery test advances the

CWA’s many purposes by honoring the distinction

between point and nonpoint source pollution. See

supra Section II.A.2; see also Rapanos, 547 U.S. at

755-56 (plurality op.) (“[C]lean water is not the only

purpose of the statute.”). It promotes the “national

policy” that “programs for the control of nonpoint sources

of pollution be developed and implemented” and that

the CWA’s “goals … be met through the control of both

point and nonpoint sources of pollution.” 33 U.S.C.

§ 1251(a)(7) (emphasis added). It also furthers the

CWA’s policy of preserving state authority to address

pollution and “plan the development and use … of land

and water resources.” Id. § 1251(b).

The means-of-delivery test does not exempt individuals and entities from the CWA. Nonpoint source

pollution remains fully subject to state nonpoint

source management programs required and funded by

the CWA. Id. § 1329(b)(1). As Congress intended, such

programs exist in every State. See EPA, Contacts for

Nonpoint Source (NPS) Pollution Programs, State

Contacts.7 In Hawai‘i, that program includes plans

https://www.epa.gov/nps/state-contacts-nps-programs (last

visited May 7, 2019).

specifically concerning groundwater quality, monitoring, and protection. See Hawai‘i’s Nonpoint Source

Management Plan, at 62, 68, 69.

Respondents complain that the nonpoint source

program is “no substitute for the protections an NPDES

permit would ensure.” Res’pts’ Br. in Opp’n (BIO) 28.

But that is a policy choice for Congress to make, and

one it did make for good reason. Congress expressly

decided not to require NPDES permitting for all water

pollution, even though it “easily could have drafted

[the statute] in that broad manner.” Nat’l Ass’n of

Mfrs., 138 S. Ct. at 632. This Court “is not free to ‘rewrite

the statute’ to [Respondents’] liking.” Id. at 629.

The CWA’s nonpoint source program also is not the

only law, state or federal, that addresses nonpoint

source pollution, including groundwater pollution and

its effects on navigable waters. Through their own

laws, States “extensively regulate groundwater pollution, thereby helping to protect all the waters into

which they flow as well.” Amici Br. of State of West

Virginia et al. in Support of Certiorari 5 (State Amici

Cert. Br.); see also 84 Fed. Reg. at 16,824. Among

those controls are state drinking water laws that, like

Hawai‘i’s UIC program, require compliance with state

rules that address “water quality and pollution.” Haw.

Code R. § 11-23-11.

At the federal level, there are several applicable

environmental protections outside the CWA. Of primary relevance here is the SDWA, which controls

UIC wells and protects underground drinking water

supplies. 42 U.S.C. §§ 300h-300h-8. As EPA previously

said regarding the County’s wells, the SDWA permit

can address any “hydrologic nexus … between the

injection wells and the ocean.” JA28, 30.

Other federal statutes include the Coastal Zone

Act, the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), and RCRA.

The Coastal Zone Act requires States with approved

Coastal Zone Management Programs to develop “Coastal

Nonpoint Pollution Control Program[s].” 16 U.S.C.

§ 1455b(a)(1). CERCLA addresses the release or substantial threat of a release of hazardous substances

into the “‘environment,’” a term that expressly includes

groundwater. 42 U.S.C. § 9601(8). And under RCRA,

EPA controls and remediates groundwater contamination. See 42 U.S.C. § 6903(3). That includes

contamination from coal ash impoundments, 40 C.F.R.

§§ 257.90 et seq., which is the subject of the Fourth

Circuit’s decision in Upstate Forever and the Sixth

Circuit’s decision in Kentucky Waterways Alliance.

Indeed, the Sixth Circuit concluded that requiring

NPDES permitting would “effectively nullify … large

portions of RCRA.” Ky. Waterways All., 905 F.3d at

938; see also 84 Fed. Reg. at 16,824-26 (discussing

SDWA, RCRA, CERCLA).

Finally, even within the CWA, there are additional

protections for certain kinds of nonpoint source pollution. Under 33 U.S.C. § 1321(b), the CWA specially

regulates nonpoint source releases of “oil and hazardous

substances” “into or upon the navigable waters.” See

id. § 1321(a)(2) (excluding permitted point source

discharges).

B. The means-of-delivery test is further

confirmed by the expansive, novel, and

disruptive effects of the Ninth and

Fourth Circuit’s tests.

In several cases, this Court has held that it will

interpret a federal statute to have certain effects only

with clear indication from Congress. First, this Court

“expect[s] Congress to speak clearly if it wishes to

assign to an agency decisions of vast ‘economic and

political significance.’” UARG, 573 U.S. at 324 (quoting FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 160 (2000)). Second, “clear congressional

authorization” is needed to endorse a “transformative

expansion” of a “long-extant statute.” Ibid. Third, this

Court looks for a “clear statement from Congress”

before effectuating “a significant impingement of the

States’ traditional and primary power over land and

water use.” SWANCC, 531 U.S. at 174.

All three clear-statement rules further confirm the

means-of-delivery test over the Ninth and Fourth

Circuit’s tests. As described below, the Ninth and

Fourth Circuit’s tests implicate all three clearstatement rules, and there is no clear indication from

Congress warranting either test.

1. The Ninth and Fourth Circuit’s

tests would vastly expand NPDES

permitting.

In UARG, this Court declined to grant, without a

clear statement from Congress, “[t]he power to require

permits for the construction and modification of tens

of thousands, and the operation of millions, of small

sources nationwide.” 573 U.S. at 324. 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 to jump from

fewer than 15,000 to about 6.1 million. This Court

found that expansive authority to “fall[] comfortably

within the class of authorizations” for which it has

required “clear congressional authorization.” Ibid.

The Ninth and Fourth Circuit’s reading of the

CWA similarly subjects States, localities, Tribes, and

millions of property and business owners to new

permitting obligations and the prospect of crippling

fines. 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.8 The Ninth and Fourth Circuit’s

tests would vastly increase that number.

Consider just the Class V wells at issue here. EPA

estimates there are 650,000 such wells in the country,

supra note 2, used commonly by municipalities and

businesses to dispose of wastewater. Though long

regulated under other state and federal programs,

these wells have never required an NPDES permit in

the nearly half century of the CWA’s existence. Now,

the public and private owners of these wells and state

regulators face the “arduous, expensive, and long”

prospect of NPDES permitting. Hawkes, 136 S. Ct. at

1815.

Widespread methods of stormwater and runoff

management, often promoted by EPA as environmentally friendly approaches, are also implicated. See

EPA, National Management Measures to Control

Nonpoint Source Pollution from Urban Areas, at

Management Measure 5, EPA-841-B-05-004 (Nov.

2005)9; EPA, Guidelines for Water Reuse, at Chapter 1,

EPA/600/R-12/618 (Sept. 2012) (EPA Guidelines for

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

visited May 7, 2019).

https://www.epa.gov/sites/production/files/2015-09/document

s/urban_guidance_0.pdf.

Water Reuse) (discussing importance of reuse).10 Many

municipalities have built 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, at Chapter 3 (discussing various

types of water reuse); Amici Br. of Ass’n of Cal. Water

Agencies et al. in Support of Certiorari 15-25. Regulatory agencies have not required NPDES permits

for these systems, e.g., Hawai‘i’s Nonpoint Source

Management Plan, at 11-12, which are expected to

grow substantially in use in coming decades, see EPA,

2017 Potable Reuse Compendium, at 1-6, EPA/810/R17-002 (undated).11 But all those systems introduce

pollutants that could make their way in a “fairly

traceable” or “hydrologically connected” manner to navigable waters through groundwater, as Respondents

readily concede. BIO 34 n.22.

Individual 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).12 In Hawai‘i

alone, there are roughly 21,000 septic systems and

88,000 cesspools13 currently covered under the State’s

https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=P100FS7K.

TXT.

https://www.epa.gov/ground-water-and-drinking-water/2017potable-reuse-compendium.

https://www.census.gov/library/publications/2013/demo/h15

0-11.html.

A cesspool is a shallow system used to dispose of sanitary

waste. Most consist of a concrete cylinder with an open bottom or

perforated sides. Waste enters the top and percolates through the

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. See 84 Fed. Reg. at 16,823.

The reach of the Ninth and Fourth Circuit’s tests

stretches as far as the imagination of any who would

bring a civil enforcement suit. There are limitless

ways pollutants could end up on or in the ground and

be transported to navigable waters by rainfall, snowmelt, or percolation to groundwater: for example, gas

that leaks from nozzles at gas stations; rain that

percolates through municipal road salt storage yards;

reclaimed irrigation water on golf courses and farm

fields; storm water detention basins; and vehicles

dripping oil on roads. Under the Ninth Circuit’s “fairly

traceable” standard, the connection to navigable

waters need not even be water-based. Pollutants could

start at a point source and be carried by wind through

the air to navigable waters. Indeed, the Ninth Circuit

expressly suggested that there may never be a

connection “too tenuous.” Pet. App. 25. Predictably,

recent lawsuits have sought to rely on the Ninth

Circuit’s rationale to require NPDES permits for

groundwater pollution caused by industrial air

emissions and Cape Cod resort septic systems.14

bottom or out the sides. EPA, Large-Capacity Cesspools, https://

www.epa.gov/uic/large-capacity-cesspools (last visited May 7,

2019).

See Conservation Law Found., Inc. v. Longwood Venues &

Destinations, Inc., No. 1:18-cv-11821-WGY (D. Mass. filed Aug.

24, 2018); Conservation Law Found., Inc. v. Wequassett Inn LLP,

No. 1:18-cv-11820-DPW (D. Mass. filed Aug. 24, 2018); Cape Fear

River Watch v. Chemours Co. FC, LLC, No. 7:18-cv-00159-D

(E.D.N.C. Feb. 28, 2019) (order granting voluntary dismissal with

prejudice).

2. The Ninth and Fourth Circuit’s tests

would transform a long-extant

statute.

The Ninth and Fourth Circuit’s tests require clear

congressional authorization not only because of their

expansive effects, but also because they would change

the understanding of a “long-extant statute.” UARG,

573 U.S. at 324. Until the Ninth Circuit decision below

and the Fourth Circuit’s decision in Upstate Forever,

this Court and the federal appeals courts had interpreted the CWA point source program consistent with

the means-of-delivery test. As noted above, this Court

held in Miccosukee Tribe that under § 1311(a), a point

source “need[s] [to] … convey the pollutant to

‘navigable waters.’” 541 U.S. at 105 (emphasis added).

And the courts of appeals read the statute the same way.

In Cordiano, the Second Circuit held that a firing

range did not require an NPDES permit where 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 reaches jurisdictional wetlands,” the court

held that fact was “not enough to satisfy the CWA

requirement of a point source discharge.” Id. at 224

(emphases added). Requiring an NPDES permit

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.; see also Catskill Mountains, 273 F.3d at

493 (“point source” must be “the proximate source

from which the pollutant is directly introduced to the

destination water body”); Waterkeeper All., Inc. v.

EPA, 399 F.3d 486, 510 (2d Cir. 2005) (same).

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. 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.

In Village of Oconomowoc Lake v. Dayton Hudson

Corp., the Seventh Circuit rejected a claim that

pollutants seeping into groundwater constituted point

source pollution because of an alleged hydrological

connection to navigable waters. 24 F.3d 962, 965 (7th

Cir. 1994); see also Compl. ¶ 50, Vill. of Oconomowoc

Lake v. Dayton-Hudson Corp., No. CIV. A. 93-C-0797,

1993 WL 668975 (E.D. Wis. Sept. 24, 1993), aff’d, 24

F.3d 962 (7th Cir. 1994).

Even the Ninth Circuit had previously applied the

means-of-delivery test. In Trustees for Alaska v. EPA,

that court concluded that the need for an NPDES

permit turns on “whether the pollution reaches the

water through a confined, discrete conveyance,” i.e., a

point source. 749 F.2d 549, 558 (9th Cir. 1984). In

Greater Yellowstone Coal. v. Lewis, the Ninth Circuit

determined that water channeled through an underground stormwater system into navigable waters

constituted point source pollution, but that unchanneled seepage reaching navigable waters did not. 628

F.3d 1143, 1153 (9th Cir. 2011).

Respondents contend that EPA has long and consistently adopted the “direct hydrological connection”

test. BIO 32. But as the agency has explained, “there

have in fact been a range of prior statements,” 84 Fed.

Reg. at 16,820, that “[l]ack[ed] … consistent and

comprehensive direction,” ibid. On repeated occasions,

including the agency explanation most “close-in-time

to the passage of the CWA amendments,” EPA rejected

Respondents’ view, “stat[ing] that discharges to groundwater are not subject to the CWA, without any

qualification.” Id. at 16,817-18 (discussing statements

from 1973, 1985, 1992, 1994, 2011, and 2014). And in

practical effect, “neither EPA nor states [with delegated authority] have generally required NPDES

permits” for “a release to groundwater with a hydrologic connection to jurisdictional surface waters.” Id.

at 16,812. EPA did not previously do so here, for

example, despite knowing for decades that the injected

effluent was reaching the ocean.

3. The Ninth and Fourth Circuit’s tests

would readjust the federal-state

balance.

Finally, a clear congressional statement is required

given the obvious risk to the federal-state balance. The

CWA establishes “a regulatory ‘partnership’” between

the Federal Government and the States, Int’l Paper,

479 U.S. at 490, which manifests in many ways,

including in the division of responsibility between the

point and nonpoint source programs. Any interpretation of the CWA that proposes to alter the terms of that

partnership will necessarily “readjust[ ] the balance of

state and national authority.” Bond v. United States,

572 U.S. 844, 858 (2014) (internal quotation marks

omitted).

Here, as explained above, the Ninth and Fourth

Circuit’s tests would recalibrate the CWA’s point and

nonpoint source programs. See supra Section II.A.2.

Those tests “threaten[] to drown state environmental

protection agencies in a myriad of new and technologically challenging NPDES permit requirements

from a novel source of federal liability, and leech away

scarce resources from other programs.” State Amici

Cert. Br. 15. That is precisely the sort of “significant

impingement of the States’ traditional and primary

power over land and water use” that requires a clear

indication from Congress. SWANCC, 531 U.S. at 174.

4. Congress did not clearly authorize

the Ninth and Fourth Circuit’s tests.

Just as there is no doubt the Ninth and Fourth

Circuit’s tests would dramatically expand and transform the reach of the NPDES program, there is no

clear indication in the CWA that Congress intended

such readings of the statute. Nothing in the statutory

text clearly sets forth the Fourth Circuit’s “direct

hydrological connection” test. As for the “fairly traceable” test, the Ninth Circuit admits that it derived

that concept not from the statutory text but from its

“case law.” Pet. App. 24 n.3. Even the Ninth Circuit

does not proffer its reading as a “clear[]” instruction

from Congress, UARG, 573 U.S. at 324, saying only

that the reading “better aligns with the statutory

text,” Pet. App. 24 n.3.

Given their sweeping and transformative consequences, and the absence of a clear statement from

Congress, neither the Ninth Circuit’s test nor the

Fourth Circuit’s test is a viable reading of the CWA.

In fact, that the Ninth and Fourth Circuit’s tests

would “place plainly excessive demands on limited

governmental resources is alone a good reason for

rejecting [them]” as unreasonable readings of the

statute. UARG, 573 U.S. at 323-24.

III. The Ninth Circuit Erred in Finding That

the County Needed An NPDES Permit.

A. The County’s well injections do not

require an NPDES permit under the

means-of-delivery test.

Under the means-of-delivery test, an NPDES permit

is required only where a point source or series of point

sources is delivering pollutants to navigable waters.

In practical terms, the test asks: what is the conveyance that actually adds the pollutants into the

navigable waters? There are three possible answers. If

the conveyance is a point source or series of point

sources together, an NPDES permit is required. If the

conveyance is a nonpoint source, the CWA’s nonpoint

source program and other laws apply. Finally, in some

circumstances, the medium immediately adjacent to

the navigable waters might not be a conveyance at all.

For example, pollutants might fall vertically or project

horizontally from a pipe through intervening air before

reaching a body of water. In those cases, the question

is whether the last conveyance (e.g., the pipe above or

back from the water) is a point or nonpoint source.

For the owner of a point source, therefore, the analysis turns solely on what lies downstream. A nonpoint

source downstream of the point source breaks the

chain of liability, because the point source is no longer

delivering pollutants to navigable waters on its own or

as part of a series of point sources. A nonpoint source

upstream of the point source is irrelevant, however.

In determining whether an NPDES permit is

required, the owner of a point source (or a court or

regulator) thus might ask the following questions:

(1) Are pollutants being delivered by the

point source to navigable waters (e.g., a pipe

protruding into a river)? If so, an NPDES

permit is required.

(2) If not, what lies between the point source

and the navigable water?

(a) If another point source or series of

point sources (e.g., a ditch leading from a

pipe to the river), an NPDES permit is

required.

(b) If not a conveyance (e.g., there is air

between a pipe and the river below), then

the point source is what delivers the

pollutants to the navigable waters, and an

NPDES permit is required.

(e.g., unconfined rainwater runoff or

groundwater), then the NPDES program

does not apply, though point sources

further downstream (if any) might

require an NPDES permit.

The Ninth Circuit should have concluded that the

County’s well injections do not require an NPDES

permit. There is no dispute that the wells fall within

the statutory definition of “point source.” But unlike

some wells—like off-shore wells where backflow up

through the well might spill into the ocean—the

County’s wells are not the means that deliver pollutants to navigable waters. The wells inject treated

effluent only into groundwater, which the Ninth Circuit

assumed (correctly) is neither navigable water nor a

point source. Pet. App. 16 n.2.

The well injections come within category 2(c).

Because the injections are not into navigable waters,

the answer to the first question is “no.” The groundwater is an intervening medium between the point

sources (wells) and the navigable waters (ocean). And

because the groundwater is a conveyance but not a

point source, the answer to the second question is “c.”

The County’s well injections thus do not require an

NPDES permit, but rather are subject to the CWA’s

nonpoint source program and any other applicable

laws, like the federal and Hawai‘i safe drinking water

programs.

B. EPA’s Interpretive Statement Provides

an Alternative Ground for Reversal.

In its recently issued Statement, EPA does not

attempt to define the scope of the point source program

under the CWA, but rather concludes that “the statute

categorically excludes releases to and from groundwater from the permitting requirements of the Act”

and “the point source analysis.” 84 Fed. Reg. at 16,820,

16,821 (emphasis added). That conclusion does not

follow from any “single provision of the CWA.” Id. at

16,814. Instead, EPA discerns “Congress’s intent” by

“analyzing the statute in a holistic fashion.” Ibid.

For purposes of this case, EPA’s groundwaterexclusion theory reaches the same result as that

advocated by the County: This Court should reverse

the finding of liability for the County’s well injections.

The only basis for liability here is that the effluent

enters groundwater and is carried by that groundwater diffusely to the ocean. Under EPA’s view of the

statute, that activity does not require an NPDES

permit. Moreover, like the County, EPA believes that

the Ninth and Fourth Circuit’s decisions “expand the

Act’s coverage beyond what Congress envisioned,

potentially sweeping into the scope of the statute

commonplace and ubiquitous activities such as releases

from homeowners’ backyard septic systems.” Id. at

16,823.

Though EPA’s theory would also require reversing

the Ninth Circuit, the County believes that this Court

need not go as far as EPA urges to resolve this case.

This Court granted certiorari to define the scope of the

CWA’s point source program. The CWA’s text, structure, context, history, and purposes all point to a clear

answer: the means-of-delivery test. When that test is

applied here, the County’s activity does not require an

NPDES permit, but rather is subject to the CWA’s

nonpoint source program and other applicable state

and federal laws.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

COUNTY OF MAUI

MOANA M. LUTEY

RICHELLE M. THOMSON

200 South High Street

Wailuku, Maui, Hawai‘i 96793

(808) 270-7740

HUNTON ANDREWS KURTH LLP

ELBERT LIN

Counsel of Record

MICHAEL R. SHEBELSKIE

951 East Byrd Street, East Tower

Richmond, Virginia 23219

elin@HuntonAK.com

(804) 788-8200

COLLEEN P. DOYLE

DIANA PFEFFER MARTIN

550 South Hope Street

Suite 2000

Los Angeles, California 90071

(213) 532-2000

Counsel for Petitioner

May 9, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.