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

No. 18-260

In the Supreme Court of the United States

COUNTY OF MAUI,

Petitioner,

v.

HAWAII WILDLIFE FUND, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE FOR

AGRICULTURAL BUSINESS ORGANIZATIONS

SUPPORTING PETITIONER

TIMOTHY S. BISHOP

Counsel of Record

MICHAEL B. KIMBERLY

MINH NGUYEN-DANG

Mayer Brown LLP

1999 K Street NW

Washington, DC 20006

(202) 263-3000

tbishop@mayerbrown.com

Counsel for the Amici Curiae

[Additional counsel listed on signature page]

QUESTION PRESENTED

Whether the Clean Water Act requires a permit

when pollutants originate from a point source but are

conveyed to navigable waters by a nonpoint source,

such as groundwater.

ii

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Authorities................................................... iii

Interest of the Amici ...................................................1

Introduction and Summary of Argument ...................4

Argument .....................................................................7

I. Additions Of Pollutants To Groundwater Are

Not Discharges Of Pollutants To Navigable

Waters Under The Act ...........................................7

A. Requiring NPDES permits for point source

additions to groundwater is inconsistent

with the CWA’s plain text ................................9

1. The CWA treats “ground waters” as

distinct from “navigable waters” ................9

2. Injection or seepage to groundwater is

not an “addition” from a point source ....... 12

B. The statutory structure shows that

NPDES permits are not required for point

source additions to groundwater.................... 14

C. Numerous substantive canons and the

CWA’s legislative history counsel further

in favor of reversal .......................................... 16

II. Requiring Permits For Indirect Additions Of

Pollutants Through Groundwater Would

Wrongly Expand The Reach Of The CWA To

Ordinary And Routine Agricultural Activities ... 20

A. Many ordinary agricultural activities can

result in discharges to groundwater .............. 21

B. Requiring NPDES permits for

groundwater discharges would be

devastating for farmers and ranchers and

impractical for regulators............................... 28

Conclusion ................................................................. 32

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978) .............................................. 18

American Farm Bureau Fed’n v. EPA,

792 F.3d 281 (3d Cir. 2015) ................................... 8

Barnhart v. Peabody Coal Co.,

537 U.S. 149 (2003) .............................................. 12

Clark v. Martinez,

543 U.S. 371 (2005) .............................................. 16

Clark v. Rameker,

573 U.S. 122 (2014) .............................................. 11

Concerned Area Residents for the Env’t v.

Southview Farm,

34 F.3d 114 (2d Cir. 1994) ................................... 22

Digital Realty Tr. v. Somers,

138 S. Ct. 767 (2018) .............................................. 9

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017) .......................................... 14

Fishermen Against Destruction of Env’t, Inc.

v. Closter Farms, Inc.,

300 F.3d 1294 (11th Cir. 2002) ............................ 25

Gulf Oil Co. v. Copp Paving Co.,

419 U.S. 186 (1974) .............................................. 20

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) .............................................. 12

Highlands Conservancy v. E.R.O., Inc.,

Civ. A. No. A:90-0489, 1991 WL 698124

(S.D. W. Va. Apr. 18, 1991) .................................. 26

International Paper v. Ouellette,

479 U.S. 481 (1987) .............................................. 32

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Cases—continued

Leocal v. Ashcroft,

543 U.S. 1 (2004) .................................................. 18

Lockhart v. United States,

136 S. Ct. 958 (2016) ............................................ 11

National Ass’n of Home Builders v.

Defenders of Wildlife,

551 U.S. 644 (2007) .............................................. 14

National Ass’n of Mfrs. v. Department of Def.,

138 S. Ct. 617 (2018) ........................................ 8, 12

National Pork Producers Council v. EPA,

635 F.3d 738 (5th Cir. 2011) ................................ 30

New York v. United States,

505 U.S. 144 (1992) .......................................... 7, 14

NLRB v. SW Gen., Inc.,

137 S. Ct. 929 (2017) ............................................ 15

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

550 F.3d 778 (9th Cir. 2008) .................................. 8

Pacific Coast Fed’n of Fishermen’s Ass’ns v. Glaser,

No. CIV S-11-2980-KJM-CKD, 2013 WL

5230266 (E.D. Cal. Aug. 31, 2012) ...................... 25

Puerto Rico v. Franklin Cal. Tax Free Tr.,

136 S. Ct. 1938 (2018) ............................................ 9

Rapanos v. United States,

547 U.S. 715 (2006) .................................. 10, 16, 29

Sackett v. EPA,

566 U. S. 120 (2012) ............................................. 17

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) .......................................... 17

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Cases—continued

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

Army Corps of Eng’rs,

531 U.S. 159 (2001) .................................... 9, 16, 17

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

541 U.S. 95, 105 (2004) ........................................ 13

Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560 (2012) .............................................. 11

Thacker v. Tennessee Valley Authority,

No.17-1201 (Apr. 29, 2019) ............................ 19, 20

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

136 S. Ct. 1807 (2016) .................................... 17, 18

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302, 321 (2014) ...................................... 15

Wisconsin Cent. v. United States,

138 S. Ct. 2067 (2018) .......................................... 18

Statutes and Regulations

33 U.S.C. 1251(a)......................................................... 7

33 U.S.C. 1251(b)......................................................... 7

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

33 U.S.C. 1254(a)(5) .................................................. 10

33 U.S.C. 1256(e)(1) .................................................. 10

33 U.S.C. 1282(b)(2) .................................................. 11

33 U.S.C. 1311(a)....................................................... 12

33 U.S.C. 1314(a)(1) .................................................. 11

33 U.S.C. 1314(a)(2) .................................................. 10

33 U.S.C. 1314(f)(2)(F) .............................................. 10

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes and Regulations—continued

33 U.S.C. 1319(c) ....................................................... 18

33 U.S.C. 1329(i)(1) ................................................... 11

33 U.S.C. 1329(b)(2)(A) ............................................. 11

33 U.S.C. 1329(h)(5)(D) ............................................. 11

33 U.S.C. 1362(6)....................................................... 26

33 U.S.C. 1362(7)............................................... 8, 9, 12

33 U.S.C. 1362(11)..................................................... 13

33 U.S.C. 1362(12)................................................. 8, 12

33 U.S.C. 1362(14)........................................... 8, 23, 25

40 C.F.R. Part 122, Subpart C .................................. 31

40 C.F.R. 122.23(a) .................................................... 23

40 C.F.R. 122.23(c) .................................................... 23

Other Authorities

118 Cong. Rec. 10,666 (1972) .................................... 19

123 Cong. Rec. 38,924 (1977) .................................... 30

A Look at Fertilizer and Pesticide Use in the

US, Gro Intelligence (June 11, 2018),

perma.cc/JNY8-K25F ........................................... 22

Ben Falk, Farm Ponds: Strategies for

Multiple Functions, Cornell Univ. Small

Farms Program (July 4, 2011),

https://perma.cc/2X7N-CRV7............................... 26

Bernard T. Nolan et al., A National Look at

Nitrate Contamination of Ground Water,

U.S. Geological Survey, Nat’l WaterQuality Assessment Program (Jan.

1998), perma.cc/YA7S-ZE3Q ............................... 22

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities—continued

CHAMBERS TWENTIETH CENTURY

DICTIONARY (1972) ............................................... 13

David Sunding & David Zilberman, The

Economics of Environmental Regulation

by Licensing: An Assessment of Recent

Changes to the Wetland Permitting

Process, 42 NAT. RES. J. 59 (2002) ....................... 29

Donald Atwood & Claire Paisley-Jones,

EPA, Pesticides Industry Sales and

Usage 2008-2012 Market Estimates (Jan.

2017), perma.cc/39MU-SRJD .............................. 24

EPA & U.S. Army Corps of Engr’s, Revised

Definition of “Waters of the United

States,” 84 Fed. Reg. 4154 (Feb. 14,

2019) ......................................................... 14, 15, 26

EPA, Interpretive Statement on Application

of the Clean Water Act National

Pollutant Discharge Elimination System

to Releases of Pollutants From a Point

Source to Groundwater, 84 Fed. Reg.

16,810 (Apr. 23, 2019) ...................................... 4, 15

EPA, NPDES CAFO Permitting Status

Report 2017 (2018), perma.cc/BY3H3RE4 ..................................................................... 23

EPA, Proceedings of the GroundWater/Surface-Water Interactions

Workshop 5 (July 2000) ....................................... 17

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities—continued

Louis A Helfrich & Garland B. Pardue,

Pond Construction: Some Practical

Considerations, Va. Cooperative

Extension (May 1, 2009),

perma.cc/5EYB-FUP4 .......................................... 26

Pesticides and Groundwater Protection,

Univ. of Mass. Amherst Ctr. for Agric.,

Food, & the Env’t, perma.cc/LB4F-42MD ........... 24

S. Rep. No. 92-414 (1971) .......................................... 19

Scott Yager & Mary-Thomas Hart, The

Tipping Point Source: Clean Water Act

Regulation of Discharges to Surface

Water Via Groundwater, and Specific

Implications for Nonpoint Source

Agriculture, 23 DRAKE J. AGRIC. L. (2018)

(forthcoming) ........................................................ 28

WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY (1961) ............................................... 13

Wolf Scheible & Michael Udvardi, How You

May Need Less Fertilizer in the Future,

Noble Res. Inst. (Apr. 8, 2019),

perma.cc/H2NP-4FVV.......................................... 22

INTEREST OF THE AMICI

Amici curiae are trade associations whose members

are responsible for a significant proportion of America’s

agricultural production or whose members supply

goods and services to agricultural producers.1

The Agricultural Retailers Association (ARA) is a

not-for-profit trade association that represents America’s agricultural retailers and distributors. ARA members provide goods and services to farmers and ranchers, including fertilizer, crop protection chemicals,

seed, crop scouting, soil testing, custom application of

pesticides and fertilizers, and the development of comprehensive nutrient management plans. Retail and

distribution facilities are scattered throughout all 50

States and range in size from small family-held businesses or farmer cooperatives to large companies with

multiple outlets.

The American Farm Bureau Federation (AFBF) is a

voluntary general farm organization formed in 1919 to

protect, promote, and represent the business, economic,

social, and educational interests of American farmers

and ranchers. Through its state and county Farm Bureau organizations, AFBF represents about six million

member families in all 50 States and Puerto Rico.

CropLife America (CLA), established in 1933, is the

national trade association for the plant science industry, representing developers, manufacturers, formulators, and distributors of crop protection chemicals and

1 Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part and that no

person other than amici or their counsel made a monetary

contribution to its preparation or submission. The parties

have provided written consent to the filing of this amicus

brief.

2

plant science solutions for agriculture and pest management in the United States. CLA’s member companies produce, sell, and distribute virtually all crop protection products, including herbicides, insecticides, and

fungicides, which American farmers use to provide

consumers with abundant food and fiber. CLA is committed to the safe and responsible use of the industry’s

products.

The Family Farm Alliance (Alliance) is a grassroots,

nonprofit organization composed of family farmers,

ranchers, irrigation districts, and allied industries in

16 Western States. The Alliance’s mission is to ensure

the availability of reliable and affordable irrigation water supplies to Western farmers and ranchers. The dayto-day management activities of many Alliance members are directly tied to groundwater, including diffuse

or shallow subsurface flow and groundwater drained

through subsurface drainage systems. The Alliance has

a long history of collaboration with constructive partners in all levels of government, with conservation and

energy organizations, and with Native American tribal

interests who seek real solutions to water resources

challenges in the West.

The Fertilizer Institute is the leading voice in the

fertilizer industry, representing the public policy,

communication, and statistical needs of its members,

including producers, manufacturers, retailers, and

transporters of fertilizer.

The National Cattlemen’s Beef Association (NCBA)

is the largest and oldest national trade association representing American cattle producers. Through state affiliates, NCBA represents more than 175,000 of America’s farmers and ranchers, who provide a significant

portion of the nation’s supply of food. NCBA works to

advance the economic, political, and social interests of

3

the U.S. cattle business and to be an advocate for the

cattle industry’s policy positions and economic interests.

The National Corn Growers Association (NCGA)

was founded in 1957. NCGA represents nearly 40,000

dues-paying corn farmers nationwide and the interests

of more than 300,000 growers who contribute through

corn checkoff programs in their States. NCGA and its

50 affiliated state organizations work together to create and increase opportunities for corn growers to help

them sustainably feed a growing world.

The National Pork Producers Council (NPPC) is an

association of 43 state pork producer organizations and

the global voice in Washington, DC for the Nation’s

approximately 60,000 pork producers. NPPC conducts

public policy outreach at both the state and federal level with a goal of meeting growing worldwide consumer

demand for pork while simultaneously protecting the

water, air, and other environmental resources that are

in the care of or potentially affected by pork producers

and their farms. NPPC and its members have engaged

directly with EPA over the last two decades regarding

the development of water quality standards and have

made significant capital investments in the design and

operation of farms to comply with these environmental

regulations.

Each amicus organization is deeply interested in

the scope of federal jurisdiction under the Clean Water

Act (CWA or Act) and has participated in litigation or

rule-making addressing that issue over many years.

Many normal farming operations, including crop and

forage production involving fertilization and weed and

insect pest control, subsurface drainage systems, irrigation systems, or the use of lagoons, basins, pits, or

impoundments, may result in material reaching

4

groundwater and from there being carried to surface

waters. Should the Court uphold the Ninth Circuit’s

erroneous expansion of the CWA, amici’s members (or

their customers) would face a significantly increased

risk of agency enforcement and citizen suits. Millions

of agricultural enterprises could be newly subject to

the CWA’s permitting requirements. In addition, the

Act includes longstanding exclusions for agricultural

activities that could be compromised by an overexpansive approach to jurisdiction over groundwater

and its relation to agricultural production. Amici believe that their long experience operating under the

CWA will assist this Court in resolving the question

presented, which is an issue of immense importance to

the Nation’s food producers and their suppliers.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case concerns Maui County’s disposal of about

four million gallons of treated sewage a day by injecting it through wells into groundwater, from which

some of it reaches the ocean near North Kaanapali

Beach some 84 days later. There is no doubt that the

State of Hawaii has broad authority under state law to

regulate that activity. See EPA, Interpretive Statement

on Application of the Clean Water Act National Pollutant Discharge Elimination System to Releases of Pollutants From a Point Source to Groundwater, 84 Fed.

Reg. 16,810, 16,824 (Apr. 23, 2019) (Interpretive Statement). There also is no question that a number of federal statutes address groundwater quality affected by

disposal activities: the Safe Drinking Water Act

(SDWA), the Resource Conservation and Recovery Act

(RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

See id. at 16,824-26. There is, in short, ample federal

and state authority to protect Maui’s beaches without

5

resort to the expansive and novel reading of the Clean

Water Act that respondents are seeking.

This Court’s consideration of the broad question

presented—whether the CWA requires a permit whenever “pollutants originate from a point source but are

conveyed to navigable waters by a nonpoint source,

such as groundwater”—should be informed by the wide

variety of far less dramatic ways in which a point

source-to-groundwater-to-navigable waters conveyance

of pollutants may occur.

In normal agricultural operations there are numerous ways in which material discharged from a point

source may reach groundwater, from which it may

eventually be conveyed to navigable waters within the

jurisdiction of the CWA. Take, for example, crop fertilization. This usually involves application of manure or

commercial fertilizers to or below the surface of crop

fields to supply the nutrients needed for crop growth.

Fertilizer is applied in amounts that the crop can efficiently and productively use (that is, at agronomic

rates). While agriculture continues to strive for evergreater precision in how much nutrients are used, the

form they take, and where and when they are applied,

perfect precision is impossible. Because crop production

systems are biological, physical, and chemical systems

subject to outside forces (like unpredictable weather

events), it is impossible to ensure that all nutrients are

used by crops, with no unused nutrients remaining in

the soil. Furthermore, unharvested crop materials (for

example, stems, leaves and roots when only grain is

harvested) contain nutrients that are returned to the

soil as this organic matter decays. Those unutilized or

remaining nutrients, when they are picked up by

stormwater and flow into surface water, are exempt

from the CWA’s National Pollution Discharge Elimina-

6

tion System (NPDES) permitting requirements

through the CWA’s agricultural stormwater exemption.

However, under respondents’ theory, NPDES permitting requirements would be triggered when stormwater unpreventably picks up and carries with it nutrients (which originated from point sources) as it infiltrates into the soil, moves past the root zone, into

groundwater, and then to a downgradient surface water. The result would be that farmers, responsibly applying fertilizer to their land, could be subject to the

CWA’s no-discharge provisions and the risk of potential civil and criminal penalties. It is clear that this is

not what Congress intended. Indeed, NPDES permits

would be a highly ineffective way in which to address

such losses of nutrients to surface waters.

As we explain in Part I of this brief, it is therefore

little wonder that each of the tools this Court uses to

determine the meaning of a statute shows that point

source-to-groundwater-to-navigable waters conveyances lie outside the scope of NPDES permitting. Plain

statutory language, the CWA’s structure, canons of

construction, and legislative history all point to just

one permissible reading of the Act: that additions of

pollutants to groundwater, regardless of whether they

later reach navigable waters, are not within the purview of the NPDES program.

In Part II, we show how disruptive it would be to

agriculture and food production to hold otherwise. It

would upend American food production to require

NPDES permits whenever seepage or other additions

to groundwater may end up in waters of the United

States. Ordinary farmers and ranchers would be unable to undertake the most basic agricultural activities

without risking crushing fines or assuming the often

unmanageable cost and prohibitively long delays asso-

7

ciated with obtaining NPDES permits.2 What is more,

the NPDES program is badly ill-suited to the regulation of agricultural activities. Expanding NPDES permitting to cover agricultural seepage to groundwater

would place unmanageable burdens on regulators.

ARGUMENT

I.

ADDITIONS OF POLLUTANTS TO GROUNDWATER ARE NOT DISCHARGES OF POLLUTANTS

TO NAVIGABLE WATERS UNDER THE ACT

Congress enacted the Clean Water Act to “restore

and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. 1251(a). Congress stated that, in pursuing that goal, it would “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution,” and thereby retain the States’

traditional control over “the development and use” of

“land and water resources.” 33 U.S.C. 1251(b). To satisfy both policies, Congress established “a program of cooperative federalism” that “anticipates a partnership

between the States and the Federal Government” to

achieve clean water. New York v. United States, 505

U.S. 144, 167 (1992). That scheme is multifaceted, but

two of its elements are of special relevance here.

First, the CWA’s two permitting programs apply to

“navigable waters,” which are defined as “the waters of

2 The windows a farmer has in which to plant and harvest

crops (and apply fertilizers) are very tight. What is more,

farmers often make the final decision on what to plant, and

therefore how much fertilizer needs to be applied, based on

market projections and shortly before planting. The short

time between this planting decision and the window for

planting is simply incompatible with the time it takes to obtain an NPDES permit.

8

the United States, including the territorial seas.” 33

U.S.C. 1362(7). Discharges to those waters require an

NPDES permit under CWA Section 402 (for the “discharge [of] pollutants that can wash downstream”) or a

permit under Section 404 (for the discharge of dredged

or fill materials, “which ‘are solids that do not readily

wash downstream’”). National Ass’n of Mfrs. v. Department of Def., 138 S. Ct. 617, 625 (2018) (NAM).

Water features that are not “waters of the United

States” lie within the jurisdiction of the States and fall

outside the CWA permitting schemes.

Second, CWA permit requirements are triggered by

the “discharge of a pollutant,” which is defined as “any

addition of any pollutant to navigable waters” or to

“the waters of the contiguous zone or the ocean” from

“any point source,” 33 U.S.C. 1362(12). A “point source”

is “any discernible, confined and discrete conveyance.”

Congress gave examples such as a “pipe, ditch, channel, tunnel, conduit, well,” “container, [or] concentrated

animal feeding operation.” 33 U.S.C. 1362(14). All other water pollution is nonpoint source pollution, which

is regulated by the States, not directly by EPA. American Farm Bureau Fed’n v. EPA, 792 F.3d 281, 289 (3d

Cir. 2015). This “disparate treatment of discharges

from point sources and nonpoint sources is an organizational paradigm of the Act.” Oregon Nat. Desert Ass’n

v. U.S. Forest Serv., 550 F.3d 778, 780 (9th Cir. 2008).

Accordingly, (1) the addition of pollutants to waters

that are not “waters of the United States” under the

CWA does not fall under the Act’s permitting programs; and (2) additions of pollutants to waters of the

United States other than from a “point source” are not

covered by those programs. Instead, regulation of additions of either type—to non-navigable waters or from

nonpoint sources—is the province of state and local

governments. The lower courts that have elided two

9

stages of movement of pollutants, point source-togroundwater-to-navigable waters, into a single stage,

point source-to-navigable waters, thus destroying key

elements of Congress’s federalist scheme for pollution

control.

A correct interpretation of the CWA does not allow

that result. Traditional tools of statutory interpretation

leave no doubt that point source additions to groundwater, like Maui’s well injections (or that may result

from routine and common agricultural practices), never

require an NPDES permit. That is not just the best

reading of the statute; it is the only permissible reading.

A.

Requiring NPDES permits for point source

additions to groundwater is inconsistent with

the CWA’s plain text

“Congress has directly spoken to the precise question at issue” here in “clear and conclusive” terms. Digital Realty Tr. v. Somers, 138 S. Ct. 767, 781-782

(2018). When “‘the statute’s language is plain,’” that is

“‘where the inquiry should end.’” Puerto Rico v. Franklin Cal. Tax Free Tr., 136 S. Ct. 1938, 1946 (2018).

1. The CWA treats “ground waters” as distinct from “navigable waters”

Although the term “navigable waters” is defined in

the CWA as “the waters of the United States” (33

U.S.C. 1362(7)), the term retains “independent significance” by showing “what Congress had in mind”: Congress’s “traditional jurisdiction over waters that were

or had been navigable in fact or which could reasonably

be so made.” Solid Waste Agency of N. Cook Cty. v. U.S.

Army Corps of Eng’rs, 531 U.S. 159, 172 (2001)

(SWANCC). Water that is underground is obviously not

navigable. And it lies far outside traditional federal jurisdiction based on Congress’s commerce power over

10

water capable of use for commercial navigation. To include groundwater in CWA jurisdiction over “waters of

the United States” would be to render the term “navigable” “devoid of significance.” Rapanos v. United

States, 547 U.S. 715, 731 (2006) (plurality).

To underline the point that navigable waters and

groundwater are different objects, Congress on multiple occasions used both terms when it meant to reach

both. For example, the Act:

 mandates creation of a joint federal-state “water quality surveillance system for the purpose

of monitoring the quality of the navigable waters and ground waters and the contiguous

zone and the oceans” (33 U.S.C. 1254(a)(5));



requires EPA to develop and publish information “on the factors necessary to restore and

maintain * * * all navigable waters, ground

waters, waters of the contiguous zone, and the

oceans” (33 U.S.C. 1314(a)(2));



calls on EPA to develop, in coordination with

the States, programs to address pollution “of

the navigable waters and ground waters” (33

U.S.C. 1252(a));



addresses state programs that monitor “the

quality of navigable waters and, to the extent

practicable, ground waters” (33 U.S.C.

1256(e)(1)); and



directs EPA to supply information to the States

on controlling pollution resulting from “changes in the movement, flow, or circulation of any

navigable waters or ground waters” (33

U.S.C. 1314(f)(2)(F)).

Against this background, construing “navigable waters” to include groundwater would run afoul of several

11

canons of construction. Take first the canon against

superfluous statutory language. There would have

been no need for Congress to list the term “ground waters” in the foregoing provisions if “navigable waters”

already included groundwater. Yet “the rule against

superfluity” forbids an interpretation that makes

“ground waters” a wholly unnecessary element in each

of these provisions. Lockhart v. United States, 136 S.

Ct. 958, 966 (2016); see Clark v. Rameker, 573 U.S.

122, 131 (2014) (“a statute should be construed so that

effect is given to all its provisions, so that no part will

be inoperative or superfluous”).

Take next the canon in favor of consistent meanings. “[I]t is a normal rule of statutory construction

that identical words used in different parts of the same

act are intended to have the same meaning.” Taniguchi

v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 571 (2012).

Thus, “navigable waters” cannot include groundwater

in those places where the phrase “navigable waters”

appears alone, but exclude it when “navigable waters”

and “ground water” appear separately in a provision.

Ordinary textual analysis shows that navigable waters

do not include groundwater.3

Finally, consider the expressio unius canon. Ordinarily, “a negative inference may be drawn from the

That is especially so because elsewhere the CWA refers to

groundwater alone or in other contexts that reflect its distinct meaning. E.g., 33 U.S.C. 1282(b)(2) (conditioning certain grants on State certifications regarding “available

ground water”); 33 U.S.C. 1314(a)(1) (referring to effects of

pollutants “an any body of water, including ground water”);

33 U.S.C. 1329(b)(2)(A) (referring to best management practices’ impact “on ground water”); 33 U.S.C. 1329(h)(5)(D) &

(i)(1) (requiring EPA to consider States’ “ground water quality protection activities”).

3

12

exclusion of language from one statutory provision that

is included in other provisions of the same statute.”

Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006). Congress made some provisions of the CWA applicable to

both “navigable waters” and “ground water.” So, when

Congress used “navigable waters” alone in Section 1362(7) and referred to “navigable waters,” “contiguous zone,” and “oceans” in Section 1362(12), it did

not mean also to include groundwater. This indicates

that groundwater was “excluded by deliberate choice,

not inadvertence.” Barnhart v. Peabody Coal Co., 537

U.S. 149, 168 (2003). “Courts are required to give effect

to Congress’ express inclusions and exclusions, not disregard them.” NAM, 138 S. Ct. at 631.

Congress easily could have defined “navigable waters” as the “waters of the United States, including

ground water.” That it did not do so, but instead explicitly said “ground water” wherever in the statute that

that is what it meant, is conclusive: “navigable waters,”

and hence “waters of the United States,” do not include

groundwater. Any interpretation of the Act that treats

groundwater as navigable waters, either explicitly or in

practical effect, is impermissible.

2. Injection or seepage to groundwater is not

an “addition” from a point source

Additional textual indicators refute the idea that

additions to groundwater fall within Section 402.

NPDES permitting requirements apply to “the discharge of any pollutant” (33 U.S.C. 1311(a)), which is

defined as “any addition of any pollutant to navigable

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

words Congress used—“addition * * * to navigable waters” and “from” a point source—signify a direct conveyance to jurisdictional waters. As this Court said in

South Florida Water Management District v. Mic-

13

cosukee Tribe, the Act’s language makes clear that a

discharge occurs only when a point source “convey[s]

the pollutant to ‘navigable waters.’” 541 U.S. 95, 105

(2004).

Dictionary definitions confirm that “addition”

means “the joining or uniting of one thing to another,”

which carries a sense of directness lacking here. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1961);

see also, e.g., ibid. (“addition” means the “direct chemical combination of two or more substances”); CHAMBERS TWENTIETH CENTURY DICTIONARY (1972) (“add”

means “to put, join, or annex (to something else)”; “addition” means “the act of adding”).

The phrase “from any point source” in Section

1362(12) supports this reading. “From” connotes a

physical connection, such as “a point or place where an

actual physical movement * * * has its beginning” or

that is the “means,” “agent,” or “instrumentality” of the

connection. WEBSTER’S THIRD, supra. And combining

requirements that an addition be “from” one thing “to”

another in particular carries the sense of a direct connection through a “conveyance.” That excludes additions to navigable water that physically come not from

a point source but from groundwater.

Further confirmation comes from Congress’s definition of effluent limitations—the key way point source

pollution is controlled—to mean a “restriction” on

“quantities, rates, and concentrations of [pollutants]

which are discharged from point sources into navigable

waters.” 33 U.S.C. 1362(11) (emphasis added). The ordinary meaning of “discharged into,” like “addition to,”

is “directly conveyed to.” Neither phrase can be rewritten to mean “discharged into groundwater that somewhere connects to navigable water.”

14

B.

The statutory structure shows that NPDES

permits are not required for point source additions to groundwater

The statutory language alone is therefore clear

enough to answer the question presented in the negative. But, in addition, “[i]t 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.’” National Ass’n of

Home Builders v. Defenders of Wildlife, 551 U.S. 644,

666 (2007). “[S]urrounding provisions” and the overall

“structure” of the CWA confirm that the Ninth Circuit

erred. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562,

1570 (2017).

Critically, the Act creates “a program of cooperative

federalism” in which authority is divided between the

federal government and the States. New York, 505 U.S.

at 167. “Point source” discharges into “navigable” “waters of the United States” fall on the federal side; nonnavigable waters and nonpoint source discharges fall

on the States’ side. This division of responsibilities is

not about whether water is protected from pollution,

but about which government has primary responsibility

for protecting it. As the Agencies recently explained,

“[e]nsuring that States retain authority over their land

and water resources pursuant to sections 101(b) and

section 510”—a requirement never even mentioned by

the Ninth Circuit—“helps to carry out the overall objective of the CWA and ensures that the agencies are

giving full effect and consideration to the entire structure and function of the Act.” EPA & U.S. Army Corps

of Engr’s, Revised Definition of “Waters of the United

States,” 84 Fed. Reg. 4154, 4169 (Feb. 14, 2019)

(WOTUS Definition).

15

Among the provisions of the CWA that give effect to

this scheme of cooperative federalism are “dozens of

non-regulatory grant, research, nonpoint source,

groundwater, and watershed planning programs that

were intended by Congress to assist the States in controlling pollution in the nation’s waters, not just its

navigable waters.” WOTUS Definition, 84 Fed. Reg. at

4,169; see Interpretive Statement, 84 Fed. Reg. 16,81617 (Apr. 23, 2019) (describing numerous CWA provisions calling for information gathering to aid state efforts to regulate discharges to groundwater and addressing state programs to regulate nonpoint source

pollution); supra at 10. As EPA recognizes, expanding

the NPDES program to encompass point source discharges into groundwater, and nonpoint source movement of groundwater into surface water, would make a

nonsense of these statutory provisions. Interpretive

Statement, 84 Fed. Reg. 16,817, 16,824.

Because it “would significantly reduce the need for

the more holistic planning provisions of the Act and the

state partnerships they entail,” that expansion would

be inconsistent with the statutory goals and federalist

structure of the CWA. WOTUS Definition, 84 Fed. Reg.

at 4169. By contrast, maintaining the distinctive federal and state roles set out in “the specific policy directives from Congress” allows full implementation of “the

entire structure of the Act” and the “word choices of

Congress.” Ibid.

This Court should “avoid” interpretations that

“mak[e] a mess” of the statute. NLRB v. SW Gen., Inc.,

137 S. Ct. 929, 941 (2017). The Ninth Circuit failed to

apply a holistic reading to the CWA that “account[s] for

both ‘the specific context in which * * * language is

used’ and ‘the broader context of the statute as a

whole.’” Utility Air Regulatory Grp. v. EPA, 573 U.S.

302, 321 (2014).

16

C.

Numerous substantive canons and the CWA’s

legislative history counsel further in favor of

reversal

1. Several additional canons of construction add

further support to the conclusion that NPDES permits

are not required for discharges to groundwater.

Avoidance of Constitutional Doubt. “[S]tatutes

should be interpreted to avoid constitutional doubts.”

Clark v. Martinez, 543 U.S. 371, 379 (2005). But the

Ninth Circuit’s interpretation of the CWA “raise[s] serious constitutional problems” by “alter[ing] the federal-state framework.” SWANCC, 531 U.S. at 173. That

interpretation effectively eradicated two areas of state

power: the States’ authority over additions of pollutants to groundwater and the States’ authority over the

movement of pollutants to navigable water from nonpoint sources such as groundwater. Converting two

separate stages in the water cycle where state governments have authority into a single stage where the

NPDES program applies “result[s] in a significant impingement of the States’ traditional and primary power

over land and water use.” Id. at 174; see Rapanos, 547

U.S. at 738 (plurality) (these are areas of “quintessential state and local power”). The brief of West Virginia

and 19 other States filed in support of certiorari attests

to the seriousness of this impingement.

This Court “expect[s] a ‘clear and manifest’ statement from Congress to authorize an unprecedented intrusion into traditional state authority.” Rapanos, 547

U.S. at 738 (plurality); see SWANCC, 531 U.S. at 174

(finding no clear congressional expression of “a desire

to readjust the federal-state balance”). There is no such

plain statement in the CWA as to additions to groundwater that eventually reaches navigable waters. To the

contrary, all textual and structural clues point in the

17

other direction. Courts must “read the statute as written to avoid the[se] significant constitutional and federalism questions.” SWANCC, 531 U.S. at 174.

Due Process. Violation of the CWA by discharging

pollutants into navigable waters without a permit carries the risk of enforcement actions seeking substantial

civil penalties, citizen’s suits, and criminal prosecution.

See U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S.

Ct. 1807, 1812 (2016). Already, groundwater aside, “the

Act’s reach is ‘notoriously unclear’ and the consequences to landowners even for inadvertent violations can be

crushing.” Id. at 1816 (Kennedy, J., concurring); see also Sackett v. EPA, 566 U. S. 120, 132-133 (2012) (Alito,

J., concurring). That uncertainty would be compounded

by an interpretation of the Act that required a permit

for additions to groundwater that eventually reach jurisdictional waters.

Fair notice is perhaps the most fundamental guarantee afforded by the Due Process Clause. It forbids

“leaving the people in the dark about what the law demands.” Sessions v. Dimaya, 138 S. Ct. 1204, 1224

(2018) (Gorsuch, J., concurring in part). But groundwater’s very presence under the soil, and its connections

to navigable waters—which may be remote, slow, seasonal, shifting, and effectively unknowable ex ante—

will not be discernable to most landowners (and certainly not to the average farmer or rancher).4 Determining the risk of liability would instead require close

4 See, e.g., EPA, Proceedings of the Ground-Water/Surface-

Water Interactions Workshop 5 (July 2000) (“Determining

the location and magnitude of contaminant discharges to

surface waters from groundwater plumes is a complex hydrogeological and biogeochemical problem. * * * Geochemical conditions * * * may change drastically over intervals of

a few centimeters”).

18

(and costly) scientific investigation, which even then

may not be able reliably to account for seepage conditions or subsurface connections beyond the moment of

investigation. Bringing groundwater within the scope

of the Act’s permitting provisions would therefore

“have a significant bearing on whether the Clean Water Act comports with due process.” Hawkes Co., 136 S.

Ct. at 1817 (Kennedy, J., concurring)

The Rule of Lenity. Beyond these general due process concerns, the risk of criminal fines and imprisonment for discharging pollutants without a permit

brings the rule of lenity into play. See 33 U.S.C.

1319(c). That rule forbids an interpretation of the CWA

that exposes citizens to criminal prosecution based on

the unknown and to some extent unknowable movement of water below the ground. See Leocal v. Ashcroft,

543 U.S. 1, 11 n.8 (2004) (applying the rule of lenity in

a civil case “[b]ecause we must interpret the statute

consistently” in both a “criminal or noncriminal context”). Where it is “totally unrealistic to assume that

more than a fraction of the persons and entities” to

whom the CWA applies “would have knowledge” of

subsurface conditions that could lead to surface water

contamination, the rule of lenity counsels against an

interpretation that would make criminals of many

landowners. Adamo Wrecking Co. v. United States, 434

U.S. 275, 290 (1978) (Powell, J. concurring).

2. Given “all the textual and structural clues” discussed above, “it’s clear enough” without resort to legislative history that NPDES permits are not required for

additions to groundwater. Wisconsin Cent. v. United

States, 138 S. Ct. 2067, 2074 (2018). But legislative

history is fully in accord with that plain meaning of the

statute.

19

Congress understood that groundwater and surface

water move in closely connected hydrologic cycles. See,

e.g., S. Rep. No. 92-414, at 73 (1971), reprinted in 2

Leg. Hist. of the Water Pollution Control Act of 1972,

at 1491 (Comm. Print 1973) (“Leg. Hist.”) (observing

that there is an “essential link between ground and

surface waters” and acknowledging “the artificial nature of any distinction” drawn between them). Accordingly, when Congress used the terms “ground water”

and “navigable waters” separately and in contradistinction, it did so deliberately and in full knowledge of

the line drawing that that requires.

In particular, Congress rejected a proposal that

would have subjected both groundwater and navigable

waters to the CWA permitting programs. Representative Leslie Aspin proposed an amendment “to brin[g]

ground water * * * into the enforcement of the bill” on

the theory that “if we do not stop pollution of ground

waters through seepage and other means, ground water gets into navigable waters, and to control only the

navigable water and not ground water makes no sense

at all.” 118 Cong. Rec. 10,666 (1972), 1 Leg. Hist. 589.

See id. at 10,669, 1 Leg. Hist. 597 (House voted to reject Aspin amendment); S. Rep. No. 92-414, at 73, 2

Leg. Hist. 1491 (Senate rejected similar amendments).

Congress chose instead to leave control of groundwater,

as well as the diffuse movement of pollutants from

groundwater into surface water, to state programs and

more targeted federal statutes. See, e.g., 118 Cong.

Rec. 10,667, 1 Leg. Hist. 591 (explaining that CWA

Section 402(b)(1)(D) predicates approval of a state program on the State having authority to regulate disposal into wells) (remarks of Rep. Clausen).

Congress thus “made a considered decision” to leave

groundwater out of the NPDES program. Thacker v.

Tennessee Valley Authority, No.17-1201, slip op. at 7

20

(Apr. 29, 2019). This Court should not “negate” that

decision by “let[ting the permitting schemes] in

through the back door, when Congress has locked the

front one.” Ibid.; see Gulf Oil Co. v. Copp Paving Co.,

419 U.S. 186, 200 (1974) (Court will not hold that Congress “intended a result that it expressly declined to

enact”).

II. REQUIRING PERMITS FOR INDIRECT ADDITIONS OF POLLUTANTS THROUGH GROUNDWATER WOULD WRONGLY EXPAND THE

REACH OF THE CWA TO ORDINARY AND ROUTINE AGRICULTURAL ACTIVITIES

Inconsistency with the statutory text is, of course,

reason enough to hold that seepage into groundwater

cannot be an “addition of [a] pollutant to navigable waters.” Any doubt on that score should be resolved in

light of the vast practical consequences of holding in

favor of respondents.

The breadth of activities that could be impacted if

the uncertain and attenuated movement of pollutants

through groundwater to navigable waters triggers the

NPDES program is enormous. Because most agricultural activity ultimately takes place on or in soil, many

ordinary and routine agricultural activities can lead to

the movement of nutrients or chemical or biological

materials from point sources, through the soil into

groundwater, and thence to surface water—including

animal feeding operations, manure storage, and application of fertilizers (manure and chemical) and pesticides. The Ninth Circuit’s ruling—or any similar approach—thus has the potential to turn normal agricultural activity without an NPDES permit into a crime.

And it does not stop with direct agricultural activities;

the industries that support American agriculture (for

21

example, fertilizer production and local farm supply retailers) may also be impacted.

Nor is the problem just the sheer scope of the activities that would be covered. It would also be very difficult to apply the NPDES permitting scheme to those

activities in any sensible way. NPDES effluent limits

that are based on the technology available to treat pollutants and meet water quality standards are designed

to address highly engineered and discrete systems with

direct, end-of-pipe discharges to surface waters. Those

conditions do not exist in agricultural production systems, where stormwater drives the movement of nonpoint source pollutants. As a result, the NPDES

scheme is ill-suited to regulating many of the agricultural activities that can result in the addition of pollutants into groundwater. Attempting to force NPDES

permitting in those circumstances would also undermine the specific agricultural exemptions expressly included in the CWA. And the NPDES scheme could displace other regulatory schemes that better protect

groundwater. These risks confirm that Congress could

not have intended Section 402’s permitting scheme to

apply any time a pollutant is conveyed indirectly to

navigable waters through a point source discharge to

groundwater.

A.

Many ordinary agricultural activities can result in discharges to groundwater

A vast array of ordinary agricultural activities will

be adversely affected if the NPDES permitting scheme

is extended to pollutants that travel through groundwater to navigable waters. These include:

Fertilizer application. The use of fertilizers, including manure spreading, can lead to materials entering

22

groundwater. American farms apply, on average, 130

pounds of fertilizer to each acre of cropland each year.5

While much of that is absorbed by crops, agronomy is

an inexact science, and part of the nutrient load inevitably remains on or in the soil and can seep below the

root zone.6 Those fertilizers can enter groundwater in a

number of ways. They can get caught up in rain or irrigation runoff, or they can seep into the soil and enter

groundwater networks. Though fertilizers that reach

groundwater through stormwater runoff or irrigation

return flows should not require an NPDES permit under any circumstances, see infra at 25, plaintiffs or

regulators may argue that those exemptions do not apply when the fertilizers seep through the soil into

groundwater.

In particular, nitrogen fertilizers (perhaps the most

common fertilizer) are highly soluble and can seep

through the soil into groundwater.7 And since courts

have held that fertilizer spray equipment can be a

point source for CWA purposes (e.g., Concerned Area

Residents for the Env’t v. Southview Farm, 34 F.3d 114,

119 (2d Cir. 1994)), under the Ninth Circuit’s approach, nearly every application of fertilizer potentially

would require an NPDES permit.

5 A Look at Fertilizer and Pesticide Use in the US, Gro Intel-

ligence (June 11, 2018), perma.cc/JNY8-K25F.

6 Wolf Scheible & Michael Udvardi, How You May Need Less

Fertilizer in the Future, Noble Res. Inst. (Apr. 8, 2019), perma.cc/H2NP-4FVV. In addition, nutrients present in nonharvested plant tissues (leaves, stems, roots) can leach below the root zone as the tissues decompose.

7 Bernard T. Nolan et al., A National Look at Nitrate Contamination of Ground Water, U.S. Geological Survey, Nat’l

Water-Quality Assessment Program (Jan. 1998), perma.cc/YA7S-ZE3Q.

23

Livestock feeding. Concentrated animal feeding operations (CAFOs) are point sources and their discharges are strictly regulated by EPA through its comprehensive CAFO rule. 33 U.S.C. 1362(14); 40

C.F.R. 122.23(a). As a result, livestock farmers take

significant steps to prevent the discharge of manure into waters of the United States, including by containing

stormwater, building specially designed manure storage facilities, carefully and timely applying manure as

a fertilizer, and maintaining extensive records. These

efforts mean that only about one-third of the nearly

20,000 “large” CAFOs in the United States require an

NPDES permit.8 Small and medium-sized animal feeding operations (AFOs)—which operate in a functionally

similar manner—also can also be designated as CAFOs

if they are discharging pollutants. See 40

C.F.R. 122.23(c). Accordingly, these livestock farmers

also take active steps to contain and manage their manure to prevent discharges.

Both CAFOs and AFOs store and manage manure

for use as a crop fertilizer. Yet many of the best practices for waste management—such as the use of manure storage or treatment facilities to allow for the

timely and appropriate application of manure on fields

as fertilizer—could lead to farms being drawn into the

CWA’s NPDES permitting requirements, even when

small amounts of nutrients unavoidably seep from such

structures through soils and into groundwater.

8 Many of these CAFOs have voluntarily obtained CAFO

permits out of an abundance of caution, despite not legally

requiring them. And some States, such as in Michigan and

Minnesota, require CAFOs to obtain an NPDES permit as a

matter of State, not federal, law. See EPA, NPDES CAFO

Permitting Status Report 2017 (2018), perma.cc/BY3H3RE4.

24

Pesticide application. American farmers use over

one billion pounds of pesticides each year to supply the

Nation with high-quality and affordable food.9 Pesticides are highly regulated, by both EPA as well as the

USDA, and are subject to a separate regulatory regime

(the Federal Insecticide, Fungicide, and Rodenticide

Act). And, like fertilizers, once properly applied many

pesticides can eventually seep into groundwater from

the soil—particularly where the water table is close to

the surface and the pesticide is highly water-soluble.10

Under respondents’ theory, therefore, pesticide use

could often trigger the NPDES scheme: a large (and

indeterminate) proportion of the ordinary applications

of pesticides would require NPDES permits on top of

the streamlined and targeted pesticide program Congress deliberately created.

In fact, it may not even be necessary to apply the

pesticides to trigger the NPDES scheme; simply handling pesticides is probably enough. A pesticide storage

facility, for example—whether on a farm or at a retailer—could be considered a point source under this

scheme. If there are any leaks, the pesticide could seep

through the soil to groundwater. Similarly, loading and

cleaning pesticide spray apparatus in the field could be

considered a discharge to groundwater. So too could

handling empty pesticide containers as they are collected and recycled. Under the Ninth Circuit’s approach, all of these activities could be swept into the

9 Donald Atwood & Claire Paisley-Jones, EPA, Pesticides

Industry Sales and Usage 2008-2012 Market Estimates at 9

(Jan. 2017), perma.cc/39MU-SRJD.

10 Pesticides and Groundwater Protection, Univ. of Mass.

Amherst Ctr. for Agric., Food, & the Env’t, perma.cc/LB4F42MD.

25

Section 402 permitting regime—in addition to the myriad other federal and state regulations that already

govern the safe handling, storage, and disposal of pesticide products.

Irrigation. Return flows from irrigation are expressly exempted from the NPDES program. 33 U.S.C.

1362(14) (excluding “return flows from irrigated agriculture” from the definition of “point source”). Return

flows are usually understood to include irrigation water that returns to navigable waters through groundwater. E.g., Fishermen Against Destruction of Env’t,

Inc. v. Closter Farms, Inc., 300 F.3d 1294, 1297 (11th

Cir. 2002). But some non-governmental organizations

contend that the exemption applies only to surface

flows and not to return flows through groundwater. See

Pacific Coast Fed’n of Fishermen’s Ass’ns v. Glaser, No.

CIV S-11-2980-KJM-CKD, 2013 WL 5230266, at *13

(E.D. Cal. Aug. 31, 2012). Amici disagree, as have the

courts in Closter Farms and Glaser—the only two that

have considered the issue to date. But if other courts

were to restrict the irrigation return flow exemption to

surface flows, under the Ninth Circuit’s rule, even

spray irrigation could require an NPDES permit.

Agricultural stormwater. Congress also expressly

exempted agricultural stormwater from NPDES requirements, even though stormwater may pick up unutilized nutrients (for example) that originated in a

point source and may carry them into navigable water.

See 33 U.S.C. 1362(14) (term point source “does not include agricultural stormwater discharges”). But some

of that stormwater may seep through soil to groundwater. And agricultural stormwater management systems

like infiltration basins (also known as sumps or recharge basins) allow stormwater to percolate through

the soil to filter out contaminants, though some will

remain when it reaches groundwater. It makes no

26

sense that stormwater runoff would be exempt from

NPDES requirements, yet stormwater filtered through

soil to groundwater would require an NPDES permit if

it contains material that originated in a point source

and subsequently reaches navigable waters. But that

appears to be the absurd result of respondents’ theory.

Farm ponds. Farm ponds have many uses, including for irrigation, aquaculture, fire protection, erosion

control, and even recreation.11 Accordingly, hundreds

of thousands of farms across the country have one or

more such ponds—there are over 50,000 in Virginia

alone.12 But ponds can contain material that qualifies

as a pollutant under the CWA—essentially any chemical compound or solid material at all. See 33 U.S.C.

1362(6). And because ponds are often simple unlined

depressions that hold water, and water can percolate

into the underlying soil, those pollutants can potentially reach the water table.13 Because farm ponds can be

point sources (see Highlands Conservancy v. E.R.O.,

Inc., Civ. A. No. A:90-0489, 1991 WL 698124, at *6

(S.D. W. Va. Apr. 18, 1991); WOTUS Definition, 84

Fed. Reg. at 4194), each farm pond could potentially be

considered a point source that discharges pollutants to

navigable waters through groundwater.

Other farm operations. Farmers might also need

permits for things that are not unique to agriculture.

Like other homes, largely rural farmhouses and build11 Ben Falk, Farm Ponds: Strategies for Multiple Functions,

Cornell Univ. Small Farms Program (July 4, 2011),

https://perma.cc/2X7N-CRV7.

12 Louis A Helfrich & Garland B. Pardue, Pond Construction: Some Practical Considerations, Va. Cooperative Extension (May 1, 2009), perma.cc/5EYB-FUP4.

13 Ibid.

27

ings can have septic systems that filter wastewater

through the soil into groundwater.14 The soil treats and

filters the water before it enters the water table. But

some amounts of pollutants may nonetheless remain

when the water percolates into the groundwater, and

that could require an NPDES permit under the Ninth

Circuit’s approach. Indeed, under respondents’ expansive theory even rainwater running off a farmhouse

roof, where it has picked up debris, and entering the

soil from a drainpipe (a point source), would require an

NPDES permit if contaminants drained to groundwater and thence reached navigable waters.

Beyond the direct agricultural activities that could

be swept into the NPDES ambit are the activities of

the industries that support agriculture. Amici’s members include fertilizer and pesticide manufacturers, for

example, whose facilities can have wastewater treatment ponds or other impoundments that could be considered point sources. These ponds may not be lined

and could also lead to percolation into groundwater—

percolations that have little to no environmental impact because the soil acts as a filter, but that could

nonetheless require a permit. This would have a direct

impact on farmers: the cost of obtaining such permits

(or of defending against a citizen suit) inevitably would

have to be passed on to the farmers who purchase

those fertilizers and pesticides.

Many livestock farms maintain stringent biosecurity

measures that require all farm employees and visitors to

shower both as they enter the barn, as well as upon exit

from the barn. These systems, as well as other facilities for

employees, are routinely managed through their own

wastewater or septic systems.

14

28

B.

Requiring NPDES permits for groundwater

discharges would be devastating for farmers

and ranchers and impractical for regulators

Notably, every type of agricultural discharge to

groundwater described above is passive. By contrast to

the County of Maui’s active injection of treated effluent

directly into groundwater as a means of disposal, agricultural releases to groundwater result from natural

seepage that inevitably occurs despite practices designed to avoid or minimize those discharges, such as

the application of manure, chemical fertilizer, and pesticides to crops at agronomic rates. Those activities are

an essential part of farming, improve the agricultural

utility of the land, and protect the crop—they cannot

be equated with disposal of wastes. Troublingly, if this

Court adopted respondents’ theory, “the implementation of voluntary on-farm manure management [or fertilizer application] systems will provide no regulatory

relief for agricultural producers and will even expose

them to CWA liability,” leaving “[a] significant portion

of agricultural producers” to “face a constant, unpreventable risk of discharge” covered by CWA Section

402. Scott Yager & Mary-Thomas Hart, The Tipping

Point Source: Clean Water Act Regulation of Discharges

to Surface Water Via Groundwater, and Specific Implications for Nonpoint Source Agriculture, 23 DRAKE J.

AGRIC. L. (2018) (forthcoming).

The consequences of requiring NPDES permits for

all the agricultural activities described above would be

incredibly disruptive to agricultural production in the

United States. NPDES permits are extremely expensive, and requiring them in these circumstances would

force drastic changes to the operations of most farms

and threaten the livelihoods of many thousands of

farmers and ranchers across the country. The policy

considerations and careful balancing that are neces-

29

sarily required in undertaking such a wholesale change

should properly be made after due consideration by the

legislative branch, not the judiciary.

Beyond that, the NPDES program is simply an inapt fit in the context of groundwater, making implementation of the lower court’s judgment a practical

impossibility. Attempting to implement the Ninth Circuit’s holding would also displace regulatory schemes

that can and do specifically protect groundwater.

1. Few farmers and ranchers can afford the tens of

thousands (or even hundreds of thousands) of dollars

and months or years of waiting it may take to obtain

an NPDES permit. The process can require retaining

consultants, engineers, and lawyers—and in the case of

groundwater would demand complex modeling. Cf. David Sunding & David Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of

Recent Changes to the Wetland Permitting Process, 42

NAT. RES. J. 59, 74, 76 (2002). Those costs naturally

add up. Landowners seeking comparable individual

CWA permits face costs of “over $271,596” on average.

Id. at 74. The time it takes to obtain CWA permits is

likewise crushing. Relatively efficient nationwide permits “took an average of 313 days to obtain,” whereas

for individual permits, “it took an average of 788 days

(or two years, two months) from the time they began

preparing the application to the time they received

[the] permit.” Id. at 76. See also Rapanos, 547 U.S. at

721 (plurality) (similar). Tens of thousands of dollars in

costs and a long wait for a permit would put countless

farmers and ranchers out of business.

Yet the costs would not be farmers’ alone to bear.

The sheer number of potential NPDES permits that

would be required for agricultural activities under the

30

Ninth Circuit’s approach would be administratively infeasible for federal and state agencies.

Congress has already recognized that requiring

NPDES permits for ordinary agricultural activity

would be unworkable and expressly exempted some of

those activities. It created the exemption for return

flows from irrigation precisely because “[t]he problems

of permitting every discrete source or conduit returning water to the streams from irrigated lands is simply

too burdensome to place on the resources of EPA.” 123

Cong. Rec. 38,924, 38,956 (1977). But if every fertilizer

or pesticide application or farm pond required a permit, the administrative burden on the EPA would appear to be of much the same magnitude as that which

Congress sought to avoid. And for farmers, there would

be little left of the exemption Congress expressly enacted for them. It would make no sense to conclude

that that was what Congress wanted.

2. Even if it were numerically feasible to administer the NPDES scheme, as a practical matter it would

often be impossible to apply the scheme to many agriculture activities that can result in pollutants entering

groundwater.

To begin with, NPDES permits are needed only

when there is an actual discharge of pollutant; a potential for discharge does not trigger the requirement. National Pork Producers Council v. EPA, 635 F.3d 738,

751 (5th Cir. 2011). Accordingly, unless and until it is

determined that there is an actual discharge of pollutant, the farmer would not need an NPDES permit.

But for many, if not most, agricultural discharges

through soil to groundwater, it is unclear if (or when)

the pollutant actually enters groundwater. Farmers

would thus face a choice: apply for a costly permit that

31

they may not in fact need, or not apply and then wait

for the first regulatory fine or citizen suit.

Furthermore, the NPDES program is an extremely

poor fit for agricultural seepage. It was designed to

target “end-of-pipe” discharges to jurisdictional waters.

See 40 C.F.R. Part 122, Subpart C. But fertilizers and

pesticides applied to crop fields enter groundwater, if

at all, only intermittently, in variable amounts, and

through different points that change depending on soil

conditions and other environmental factors. And any

eventual release to navigable waters is even more remote, uncertain, and changeable with conditions.

There is thus little or no correlation, and certainly no

consistent one, between regulation of what comes out

of the point source and what, if anything, ever arrives

in the waters of the United States.

It follows that it would also be impossible and impractical to designate the discharge point to be the

place at which the groundwater connects with navigable waters. Groundwater often does not enter navigable waters through a single point, but at a number of

places that can be many miles away from the point

source and beyond the control of the owner or operator

of the point source. Moreover, the groundwater will

almost certainly contain pollutants from a multitude of

different sources, making it impossible for any one

owner or operator to determine if his or her own control measures are effective—particularly when the pollutant takes months to diffuse through the groundwater before reaching navigable waters. Compounding

matters, at certain times of year, surface water can

flow back into groundwater; current NPDES regulations do not account for this possibility. Unlike with a

direct point source addition to navigable waters, it is

impossible to see how technology- or water-qualitybased effluent limits could sensibly be used to regulate

32

seepage to groundwater that eventually, in complex,

uncertain, and variable and inconstant ways, reaches

navigable waters.

In addition to being impractical to apply NPDES

permitting requirements to the vast majority of agricultural activities that would be swept in under the

Ninth Circuit’s rule, doing so would be bad policy. The

release of pollutants into groundwater is regulated extensively by States and other federal laws, including

the Safe Water Drinking Act (SDWA), 42 U.S.C. 9601

et seq., and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42

U.S.C. 300(f) et seq. At best, the CWA would impose

requirements that are merely duplicative of state or

other federal requirements. At worst, the CWA’s requirements would be inconsistent with those other

schemes and, in the case of state regulations, might

well preempt them. E.g., International Paper v. Ouellette, 479 U.S. 481, 495-97 (1987). Yet, unlike the

NPDES program, state groundwater schemes are designed to protect groundwater from pollutants that enter through diffuse sources. Adding an additional illfitting and conflicting layer of Section 402 regulation

could therefore reduce protection for groundwater—

precisely the wrong outcome.

CONCLUSION

The judgment below should be reversed.

33

Respectfully submitted.

ELLEN B. STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Ave., SW

Suite 1000W

Washington, DC 20024

(202) 406-3600

MICHAEL C. FORMICA

National Pork Producers

Council

122 C Street NW

Suite 875

Washington, DC 20001

(202) 347-3600

TIMOTHY S. BISHOP

Counsel of Record

MICHAEL B. KIMBERLY

MINH NGUYEN-DANG

Mayer Brown LLP

1999 K Street NW

Washington, DC 20006

(202) 263-3000

tbishop@mayerbrown.com

COLLEEN WILLARD

National Corn Growers

Association

20 F Street NW

Suite 600

Washington, DC 20001

(202) 326-0647

SCOTT YAGER

MARY-THOMAS HART

KYLE LISKE

National Cattlemen’s Beef Agricultural Retailers

Association

Association

1275 Pennsylvania Ave

1156 15th Street NW

NW

Suite 500

Suite 801

Washington, DC 20005

Washington, DC 20004

(202) 595-1706

(202) 879-9102

NORMAN SEMANKO

RACHEL LATTIMORE

Parsons Behle & Latimer

DOREEN MANCHESTER

800 West Main Street

CropLife America

Suite 1300

1156 15th Street NW

Boise, ID 83702

Suite 400

(208) 562-4900

Washington, DC 20005

Counsel for Family Farm

(202) 296-1585

Alliance

MAY 2019

Counsel for the Amici Curiae