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, HAWAI’I,

Petitioner,

v.

HAWAI’I WILDLIFE FUND; SIERRA CLUB

MAUI GROUP; SURFRIDER FOUNDATION;

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE WATER SYSTEMS

COUNCIL AND THE NATIONAL GROUND WATER

ASSOCIATION IN SUPPORT OF PETITIONER

-----------------------------------------------------------------JESSE J. RICHARDSON, JR.

LAW OFFICES OF JESSE J. RICHARDSON, JR.

969 Vandalia Road

Morgantown, West Virginia 26501

jessehokie@gmail.com

(540) 327-7508

Counsel for Amici Curiae

Water Systems Council and

The National Ground Water Association

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the Clean Water Act requires a National Pollution Discharge Elimination System (NPDES) 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

Page

QUESTION PRESENTED...................................

i

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

ii

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

iv

INTRODUCTION AND INTEREST OF AMICI ...

1

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

4

ARGUMENT ........................................................

6

I.

II.

The Structure of the Clean Water Act

Clearly Evinces Congress’ Intent to Regulate Releases to Groundwater Under the

Nonpoint Source Provisions of the CWA ...

6

If the Court Finds That Some Releases to

Groundwater Require NPDES Permits,

Only Those Releases That Migrate to Jurisdictional Waters Through Subterraneous

Streams Should Require Permits................ 10

A. The Strongest Theory for Regulating

Groundwater Under the Point Source

Provisions of the CWA Would Include

Regulating Only Groundwater Flowing in Subterraneous Streams, but

Even This Theory Has Been Rejected

by the EPA ........................................... 10

iii

TABLE OF CONTENTS – Continued

Page

B. Common Law Water Rights Distinguish Percolating Groundwater from

Groundwater Flowing in Identifiable

Subterraneous Streams, Providing a

Template for the CWA ......................... 14

III.

Other Federal Statutes Regulate Groundwater Contamination ................................. 19

IV.

States are Best Suited to Regulate Groundwater and Already Adequately Regulate

Groundwater .............................................. 20

CONCLUSION..................................................... 25

iv

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma, 50 U.S. 91 (1992) ..................20

Bluewater Network v. EPA, 370 F.3d 1 (D.C. Cir.

2004) ........................................................................10

Colorado Tr. for Prot. & Benefits v. Souder, Miller

and Assocs., Inc., 870 F. Supp. 2d 1173 (D.

Colo. 2012) ...............................................................24

Concerned Area Residents for Environment v.

Southview Farm, 34 F.3d 114 (2d Cir. 1994) ...... 8, 18

Cordiano v. Metacon Gun Club, 575 F.3d 199 (2d

Cir. 2009) ...................................................................9

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

Cir. 1991), rev’d on other grounds, 505 U.S.

557 (1992) ................................................................18

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

1977) ..........................................................................9

Hawai’i Wildlife Fund v. County of Maui, 886

F.3d 737 (9th Cir. 2018) ..................................... 11, 13

Hawai’i Wildlife Fund v. Cty. of Maui, 24

F. Supp. 3d 980 (D. Haw. 2014), aff ’d sub nom.

Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d

754 (9th Cir. 2018) ...................................................12

Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018) .... 13, 16, 17, 19

Miller v. Black Rock Springs Improvement Co.,

99 Va. 747, 40 S.E. 27 (1901) ...................................15

v

TABLE OF AUTHORITIES – Continued

Page

Northwest Envtl. Def. Ctr. v. Brown, 640 F.3d

1063 (9th Cir. 2011) ...................................................9

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

(2006) ..................................................... 10, 16, 17, 18

Sierra Club v. El Paso Gold Mines, 421 F.3d 1133

(10th Cir. 2005).................................................... 9, 17

Sierra Club v. Virginia Electric & Power Co., 903

F.3d 403 (4th Cir. 2018) ...........................................12

South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) ............................17

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

U.S. 159 (2001) ........................................................10

Tennessee Clean Water Network v. Tennessee Valley Auth., 905 F.3d 436 (6th Cir. 2018) ............... 9, 17

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

2005) ........................................................................18

United States v. Velsicol Chemical Corp., 438

F. Supp. 945 (W.D. Tenn. 1976) ...............................17

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) ........................................................................11

STATUTES

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

33 U.S.C. § 1251(b) ......................................................21

33 U.S.C. § 1311(a) .................................................... 6, 7

vi

TABLE OF AUTHORITIES – Continued

Page

33 U.S.C. § 1314(g) ........................................................7

33 U.S.C. § 1342 ..........................................................17

33 U.S.C. § 1342(a) ........................................................7

33 U.S.C. § 1342(b)(1)(D) ..............................................9

33 U.S.C. § 1342(b)–(c) ..................................................7

33 U.S.C. § 1362 ..........................................................14

33 U.S.C. § 1362(7) ......................................................11

33 U.S.C. § 1362(11) ......................................................7

33 U.S.C. § 1362(12) .................................................. 6, 8

33 U.S.C. § 1362(14) ................................................ 7, 18

42 U.S.C. § 300g-2(a) ...................................................19

42 U.S.C. §§ 300h to 300h-8 ........................................19

Clean Water Act (CWA), 33 U.S.C. § 1329

(2018) ............................................................... passim

Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601

et seq. ................................................................... 5, 20

Endangered Species Act, 16 U.S.C. §§ 1531 et

seq. ......................................................................... 5, 20

Resource Conservation and Recovery Act, 42

U.S.C. §§ 6901 et seq. .................................... 5, 19, 23

Safe Drinking Water Act, 42 U.S.C. §§ 300f et

seq. ................................................................. 5, 19, 23

vii

TABLE OF AUTHORITIES – Continued

Page

RULES AND REGULATIONS

40 C.F.R. § 230.3(s)(5) .................................................11

OTHER AUTHORITIES

Allison L. Kvien, Note, Is Groundwater That is

Hydrologically Connected to Navigable Waters

Covered Under the CWA? Three Theories of

Coverage & Alternative Remedies for Groundwater Pollution, 16 Minn. J.L. Sci. & Tech. 957

(2015) ........................................................... 12, 20, 22

2 Clesson S. Kinney, Irrigation and Water Rights

§ 1183 (2d ed. 1912) ................................................15

Damien Schiff, Keeping the Clean Water Act Cooperatively Federal—Or, Why the Clean Water

Act Does Not Directly Regulate Groundwater,

42 Wm. & Mary Envtl. L. & Pol’y Rev. 447

(2018) .......................................................................21

Daniel R. Mandelker, Controlling Nonpoint

Source Water Pollution Can It Be Done?, 65

Chi.-Kent L. Rev. 479 (1989) .....................................8

Interpretive Statement on Application of the

Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants From a Point Source to

Groundwater, 84 Fed. Reg. 78 (April 23, 2019) ......13

Mary Christina Wood, Regulating Discharges

into Groundwater: The Crucial Link in Pollution Control Under the Clean Water Act, 12

Harv. Envtl. L. Rev. 569 (1988) ...............................11

viii

TABLE OF AUTHORITIES – Continued

Page

14 Mews, E.C.L. 1955 .................................................15

Sharon B. Megdal et al., Groundwater Governance in the United States: Common Priorities

and Challenges, 53 Groundwater 677 (Sept.Oct. 2015) .......................................................... 22, 25

U.S. Bureau of Census American Housing Survey, https://www.census.gov/programs-surveys/

ahs/data.2017.html ...................................................1

U.S. Fish and Wildlife Services, Karst Invertebrates, https://www.fws.gov/southwest/es/austin

texas/esa_sp_karstinverts.html ..............................20

Water Systems Council, Who Owns the Water: A

Summary of Existing Water Rights Laws (August 2016) ................................................................15

2 Waters and Water Rights § 19.01 (2019) .......... 14, 15

2 Waters and Water Rights § 19.04 ............................21

2 Waters and Water Rights § 19.05(a)(1.01) ..............15

2 Waters and Water Rights § 19.05(a)(2) ...................15

2 Waters and Water Rights § 19.05(a)(3) ...................15

2 Waters and Water Rights § 19.05(a1) ............... 14, 18

2 Waters and Water Rights § 19.05(b)(1.01) ..............15

2 Waters and Water Rights § 20.03 ............................15

1

INTRODUCTION AND INTEREST OF AMICI1

This appeal involves the question of whether discharges to soil or groundwater that eventually make

their way to jurisdictional waters require a National

Pollution Discharge Elimination Permit (NPDES), or

whether such discharges are regulated under the nonpoint source management portion of the Clean Water

Act (CWA). 33 U.S.C. § 1329 (2018). For the reasons

stated below, Amici Water Systems Council (WSC) and

the National Ground Water Association (NGWA) respectively submit that the NPDES provisions of the

CWA do not apply to such discharges, but the discharges are regulated under the CWA.

Amici hold a keen interest in protecting the quality and quantity of groundwater in the United States.

Founded in 1932, WSC is a national nonprofit organization with programs solely focused on private

water wells and small, shared wells serving more than

13 million households, or 34 million Americans, nationwide. U.S. Bureau of Census American Housing Survey,

https://www.census.gov/programs-surveys/ahs/data.2017.

html (follow “AHS 2017 Summary Tables” hyperlink;

1

This brief was authored solely by Jesse J. Richardson, Jr.,

counsel for Water Systems Council and the National Ground Water Association. No person or entity, other than Water Systems

Council and the National Ground Water Association, their members, or their counsel, made a monetary contribution to the preparation or submission of the brief. Respondents have filed a

blanket consent. Amici obtained written consent from Petitioner

on April 29, 2019.

2

then “Select Table” for “Plumbing, Water, and Sewage

Disposal”; then follow “Get Table” hyperlink).

WSC members are leaders in the water well industry who are dedicated to promoting and protecting our

nation’s precious groundwater supply. The membership is made up of 18 major manufacturers of well components, 14 major distributors of said products, 22

state associations of groundwater professionals, and 26

well contractors. Annual sales in the water well industry are estimated to top $5 billion.

WSC is committed to ensuring that Americans

who depend on wells have safe, reliable drinking water

and educating well owners, consumers, and policymakers at the local, state, and federal levels about water

wells and the importance of protecting America’s

groundwater resources. WSC strives to help well owners, as well as local, state, and federal governments,

maintain the quality and quantity of groundwater.

NGWA is the largest trade association and professional society of groundwater professionals in the world,

whose mission is to advocate for the responsible development, use, and protection of groundwater resources.

Representing over 11,000 groundwater professionals

within the United States and internationally, NGWA

represents scientists, engineers, contractors, manufacturers, and suppliers committed to the responsible

development, management, and use of groundwater.

NGWA members work to advance groundwater

knowledge through education and outreach, advocacy,

3

cooperation and information exchange, and enhancement of professional practices.

Amici’s interest in this case stems from the significant role groundwater plays in sustaining the United

States’ economy. Concurrent with the need for protecting surface water is the need to ensure adequate fresh

groundwater for drinking water, industrial and manufacturing applications, food production, and ecosystem

support. Ninety percent of America’s freshwater supplies lie underground, but the use of groundwater resources varies widely due to geology, topography, and

climate. Over 34 million people in the United States

rely on private wells and 87 million are served by

groundwater from community water systems. Seventyone percent of groundwater withdrawn is for irrigated

agriculture. Additionally, forty percent of baseflow of

streams is contributed from groundwater discharge

through streambeds.

WSC and the NGWA support protection of groundwater and surface water resources. With respect to

point source pollution, WSC and the NGWA assert

that:

•

Control of potential and active sources of

contamination should be a national objective, reducing the need for remediation of

groundwater.

•

Aquifers should be protected from degradation, recognizing that no degradation

may be economically and technically impractical in many circumstances.

4

•

Groundwater quality should be protected

for existing and potential beneficial uses.

•

Methods available to control point source

contamination include land-use controls

and containment or isolation of contaminant sources.

•

Waste reduction, education, and technology transfer are important actions to protect groundwater.

•

Increased scientific research can provide

the basis for land-use control decisions.

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

SUMMARY OF ARGUMENT

The structure of the Clean Water Act indicates

that Congress intended to regulate discharges to

groundwater under the nonpoint source pollution provisions of the Act. Discharges to groundwater do not

lend themselves to easy measurement and establishment of effluent limitations as do point sources of pollution. The Clean Water Act noticeably omits mention

of groundwater in the National Pollution Discharge

Elimination System (NPDES) provisions. The Clean

Water Act only refers to groundwater in a limited way

in the nonpoint source provisions.

If some discharges to groundwater are covered

under the point source provisions of the Clean Water

Act, only those discharges into groundwater flowing

in defined subterraneous channels should be covered.

In these cases, which are rare, the groundwater

5

resembles a point source or “conduit.” The common law

distinguishes between percolating groundwater and

groundwater flowing in defined channels in establishing water rights. Percolating groundwater was treated

as part of the soil (and still is treated in that way in

some states). On the other hand, water flowing in identifiable underground streams or channels is subject to

the same rules as surface streams and rivers. Notably,

Justice Scalia referred only to surface water flowing in

channels as conduits when approving of treating some

indirect discharges to covered waters as point source

discharges.

The NPDES permitting scheme is not appropriate

for regulating discharges to groundwater, whereas several other aspects of state and federal law are. In addition to coverage under the nonpoint source provisions

of the Clean Water Act, such discharges are covered

under other federal laws. The Safe Drinking Water Act,

42 U.S.C. §§ 300f et seq., the Resource Conservation

and Recovery Act, 42 U.S.C. §§ 6901 et seq., the Comprehensive Environmental Response, Compensation

and Liability Act, 42 U.S.C. §§ 9601 et seq., and the

Endangered Species Act, 16 U.S.C. §§ 1531 et seq. all

provide coverage for at least some discharges to

groundwater that eventually migrate to waters of the

United States.

Instead of adding partial coverage through an addition to the fractured system of existing regulation,

adherence to the framework set out by the Clean Water

Act will provide better protection of our nation’s waters, including groundwater. 33 U.S.C. § 1329 clearly

6

contemplates a cooperative effort between the federal

government, states, and Indian tribes to address discharges to groundwater. Efforts under this umbrella

can best be coordinated between the various governmental agencies to protect water resources. Given the

diversity of geology, climate, and use of groundwater

resources, states should play the lead role in regulating these discharges. In addition, land use and groundwater are closely connected. States regulate land use

and should lead efforts to regulate discharges to

groundwater.

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

ARGUMENT

I.

The Structure of the Clean Water Act

Clearly Evinces Congress’ Intent to Regulate Releases to Groundwater Under the

Nonpoint Source Provisions of the CWA.

The Clean Water Act (CWA) was enacted in 1972

with the stated objective “to restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2018). To those

ends, the CWA prohibits the “discharge of any pollutant by any person” into navigable waters unless otherwise authorized by the CWA. Id. § 1311(a). The

“discharge of a pollutant” is defined as “any addition of

any pollutant to navigable waters from any point

source.” Id. § 1362(12). The term “point source,” in

turn, means “any discernible, confined and discrete

conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure,

container . . . from which pollutants are or may be

7

discharged.” Id. § 1362(14). The CWA provides for the

issuance of permits authorizing the discharge of pollutants into navigable waters in compliance with specified effluent standards. Id. § 1311(a). In 33 U.S.C.

§ 1342(a), the CWA established the National Pollutant

Discharge Elimination System (NPDES), under which

EPA may “issue a permit for the discharge of any pollutant” provided that the authorized discharge complies with the effluent standards specified in the

permit or otherwise imposed by the CWA. Through

that system, the EPA also shares regulatory authority

with the states, and a state may elect to establish its

own permit program, subject to EPA approval. Id.

§ 1342(b)–(c). When a state elects to establish its own

program, the EPA suspends its federal permit program

and defers to the state’s, allowing the state discharge

permit (SPDES) to authorize effluent discharges under

both state and federal law.

NPDES permits require the permittee to meet numeric or narrative effluent limitations. 33 U.S.C.

§§ 1311(a), 1342(a). 33 U.S.C. § 1362(11) defines the

term “effluent limitation” as “any restriction established by a State or the Administrator on quantities,

rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from

point sources into navigable waters, the waters of the

contiguous zone, or the ocean, including schedules of

compliance.” 33 U.S.C. § 1314(g) provides that in assisting states in implementing the NPDES program,

the EPA shall publish guidelines “to control and prevent the discharge into the navigable waters, the contiguous zone, or the ocean.”

8

If the NPDES program were to be construed as applying to releases to groundwater, calculation of effluent limitations would be difficult, if not impossible,

since the limitations could not, as is usually the case,

be measured at the “end-of-the-pipe.” Daniel R. Mandelker, Controlling Nonpoint Source Water Pollution

Can It Be Done?, 65 Chi.-Kent L. Rev. 479, 482 (1989).

Instead, calculations would have to be made as to the

percentage of the release that would make its way to

the jurisdictional water, how much of the contaminant

would be removed or filtered by the soil, and other variable factors. Enforcement and measurement of the actual releases into the jurisdictional water could also

prove extremely problematic and seems antithetical to

the design of the NPDES program.

Regulating releases to groundwater under the

NPDES program also potentially requires a wide

swath of activities to obtain an NPDES permit. Almost

every pollutant originates from a point source. See, e.g.,

Concerned Area Residents for the Env’t v. Southview

Farms, 34 F.3d 114 (2d Cir. 1994) (finding that a swale

in field where liquid manure from large dairy farm collected before flowing into nearby streams and vehicles

used to spread manure were “point sources”). To give

the term “any addition of any pollutant to navigable

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

meaning, the “addition” needs to be direct or any discharge that eventually makes its way to navigable waters would require a permit.

Groundwater is not mentioned in connection

with the NPDES program. However, to approve a

9

state-submitted NPDES program, the administrator

must determine that adequate authority exists within

the state to “control the disposal of pollutants into

wells.” 33 U.S.C. § 1342(b)(1)(D). This provision further

indicates that Congress intended that all regulation of

discharges into groundwater be regulated by the states

pursuant to 33 U.S.C. § 1329. See Exxon Corp. v. Train,

554 F.2d 1310, 1324 (5th Cir. 1977). This provision applies to nonpoint source pollution.

Most courts find that groundwater, because of its

diffuse character and dispersal over widespread areas,

is a nonpoint source of pollution, rather than a point

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

1133, 1141 n.4 (10th Cir. 2005) (“Groundwater seepage

that travels through fractured rock would be nonpoint

source pollution, which is not subject to the NPDES

permitting.”); Northwest Envtl. Def. Ctr. v. Brown, 640

F.3d 1063, 1070 (9th Cir. 2011) (“Stormwater that is

not collected or channeled and then discharged, but

rather runs off and dissipates in a natural and unimpeded manner, is not a discharge from a point

source. . . .”); Cordiano v. Metacon Gun Club, 575 F.3d

199, 220–21 (2d Cir. 2009) (“In practical terms, nonpoint source pollution does not result from a discharge

at a specific, single location (such as a single pipe) but

generally results from land runoff, precipitation, atmospheric deposition, or percolation.”); Tenn. Clean

Water Network v. TVA, 905 F.3d 436, 444 (6th Cir. 2018)

(“The CWA has no say over [groundwater].”).

An interpretation of the statute that extends

the scope of the NPDES permitting requirements to

cover hydrologically connected groundwaters would

10

constitute a substantial expansion of federal authority

into the “[s]tates’ traditional and primary power over

land and water use.” SWANCC v. U.S. Army Corps of

Engineers, 531 U.S. 159, 174 (2001). Congress “would

have said so more clearly” if it intended statutory language to take on such a disputed meaning. Bluewater

Network v. EPA, 370 F.3d 1, 18 (D.C. Cir. 2004). Indeed,

such “an unprecedented intrusion into traditional

state authority” would ordinarily require “[a] clear and

manifest statement from Congress.” Rapanos v. United

States, 547 U.S. 715, 738 (2006) (plurality opinion). Yet

no such statement of congressional intent can be found

in the language of the CWA. In fact, the structure of

the CWA and the provisions of 33 U.S.C. § 1329 indicate the contrary.

II.

If the Court Finds That Some Releases to

Groundwater Require NPDES Permits,

Only Those Releases That Migrate to Jurisdictional Waters Through Subterraneous

Streams Should Require Permits.

A. The Strongest Theory for Regulating

Groundwater Under the Point Source

Provisions of the CWA Would Include

Regulating Only Groundwater Flowing

in Subterraneous Streams, but Even This

Theory Has Been Rejected by the EPA.

Originally, commentators posited that two alternative theories could support inclusion of discharges

to groundwater under the point source provisions of

the Clean Water Act. The first theory (“point source

11

theory”) would treat some forms of “tributary groundwater” as “extensions of ‘point sources.’ ” Mary Christina Wood, Regulating Discharges into Groundwater:

The Crucial Link in Pollution Control Under the Clean

Water Act, 12 Harv. Envtl. L. Rev. 569, 574 (1988). The

second (“tributary theory”) would expand the definition of “navigable water” to include tributary groundwater. Id.

Note that both theories would only cover tributary

groundwater. Tributary groundwater is defined differently by different states in the context of water rights,

and Wood does not explicitly define “tributary groundwater.” However, the context makes it appear that

Wood contemplates a definition of tributary groundwater that would exclusively include groundwater traveling in subterraneous channels. See, e.g., id. at 575.

The point source theory includes groundwater

traveling in subterraneous channels as point sources.

Id. The tributary theory relies on the inclusion of nonnavigable tributaries as “waters of the United States”

under 33 U.S.C. § 1362(7). 40 C.F.R. § 230.3(s)(5). Although not clear, Wood appears to include only water

traveling in subterraneous channels in this definition

as well. The case at hand, as well as other cases decided and pending in other courts, take these theories

well beyond groundwater traveling in subterraneous

channels, to include percolating groundwater. See, e.g.,

Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737

(9th Cir. 2018) (the case below); 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.

12

Aug. 28, 2018) (No. 18-268); Sierra Club v. Virginia

Electric & Power Co., 903 F.3d 403 (4th Cir. 2018).

Later commentators and cases rely on a third theory, “groundwater as a conduit.” See, e.g., Allison L.

Kvien, Note, Is Groundwater That is Hydrologically

Connected to Navigable Waters Covered Under the

CWA? Three Theories of Coverage & Alternative Remedies for Groundwater Pollution, 16 Minn. J.L. Sci. &

Tech. 957, 960 (2015). Kvien reiterates but rejects the

point source theory and the tributary theory laid out

by Wood, but appears to either remove the requirement

of tributary groundwater from the theories, or redefine

tributary groundwater. Kvien confuses the concept of

groundwater as a tributary of waters of the United

States under the tributary theory with groundwater

qualifying as waters of the United States under Justice

Kennedy’s substantial nexus test. Id. 944–86. Discussion of the point source theory likewise abandons any

notion of groundwater in subterraneous channels, but

acknowledges that the diffuse nature of groundwater

makes the point source argument a weak one. Id. 986–

87. Kvien instead uses the “hydrologically connected”

test in analyzing each of the three options: point source

theory, tributary theory, and groundwater as a conduit.

The conduit theory provides “a far less burdensome approach than the point source theory.” Id. at

987. Discharges to groundwater under this theory, attributed by Kvien to Hawai’i Wildlife Fund v. Cty. of

Maui, 24 F. Supp. 3d 980, 994–96 (D. Haw. 2014), aff ’d

sub nom. Hawai’i Wildlife Fund v. Cty. of Maui, 881

F.3d 754 (9th Cir. 2018), and aff ’d sub nom. Hawai’i

13

Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir.

2018), eliminates the challenge of proving that the

groundwater is confined and discrete. Id. However, the

elimination of these requirements also substantially

weakens the argument in favor of the theory. Removed

from consideration are the characteristics that, if possessed by groundwater, would make discharges to

groundwater analogous to covered activity.

Yet another theory excludes discharges into

groundwater. The “terminal point source theory” provides that any intermediary between the point source

and navigable water breaks the connection and is not

covered by the NPDES program. Kentucky Waterways

Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir.

2018). The EPA’s recent interpretative statement rejects all of these theories and adopts the categorical

rule that all releases to groundwater are excluded from

the scope of the NPDES program. Interpretive Statement on Application of the Clean Water Act National

Pollutant Discharge Elimination System Program to

Releases of Pollutants From a Point Source to Groundwater, 84 Fed. Reg. 78 (April 23, 2019). The EPA explicitly rejects the notion that movement of groundwater

through formations that resemble point source discharges should be covered. Id. at 16821. The EPA

called the mode of transport through the groundwater

“immaterial.” Id.

14

B. Common Law Water Rights Distinguish

Percolating Groundwater from Groundwater Flowing in Identifiable Subterraneous Streams, Providing a Template for

the CWA.

Early common law classifications of water used

broad categories: (1) surface streams and lakes, (2)

wetlands, (3) surface run-off water, and (4) groundwater. 2 Waters and Water Rights § 19.01 (2019). Although all waters on the surface could be classified as

surface water, legal categories include diffuse surface

water (stormwater) and waters confined to an identifiable area such as a river or lake. Id. The United States

Congress similarly distinguishes between types of surface water in the Clean Water Act. For example, the

definition of point source excludes “agricultural stormwater.” 33 U.S.C. § 1362 (2018).

Likewise, since the mid-1800s, the common law

has distinguished between “percolating groundwater”

and “subterraneous streams.” 2 Waters and Water

Rights § 19.05(a1). Percolating groundwater constitutes:

Those waters which slowly percolate or infiltrate their way through the sand, gravel, rock,

or soil, which do not then form a part of any

body of water or flow of any watercourse, surface or subterranean, but which may eventually find their way by force of gravity to some

watercourse or other body of water, with

whose waters they mingle, and thereby lose

their identity as percolating waters.

15

Id. § 19.05(b)(1.01), quoting 2 Clesson S. Kinney, Irrigation and Water Rights § 1183, at 2150 (2d ed. 1912).

These waters “ooze” or “seep” in the ground, as opposed

to flowing in an identifiable channel or stream. Id.

Subterraneous streams are characterized by “defined limits, a single direction of flow, and the regular

expectation of a fairly continuous flow.” Id. § 19.05(a)(2),

at 19–30. The Virginia Supreme Court has characterized a subterraneous stream as “defined.” Miller v.

Black Rock Springs Improvement Co., 99 Va. 747, 40

S.E. 27, 30 (1901). “Defined means a contracted and

bounded channel. . . .” Id. (quoting 14 Mews, E.C.L.

1955). The common law treats subterraneous streams

as surface streams and uses the riparian rights doctrine to allocate rights to such streams, as with surface

streams. 2 Waters and Water Rights § 19.05(a)(2).

The law presumes that groundwater does not flow

in underground streams, but is percolating. Id.

§§ 19.05(a)(1.01), 19.05(a)(3). Percolating groundwater

receives different treatment under the common law

than subterraneous streams. Early common law

treated percolating groundwater as part of the soil, not

recognizing separate rights in that water. Id. § 19.01.

“Groundwater was a mere ingredient of the soil.” Id. at

19-3. The English Common Law rule for percolating

groundwater, the Absolute Dominion Rule, reflects this

heritage, giving landowners the right to pump and use

such water as they wish, with impunity. Id. § 20.03.

England still uses this rule, with restrictions, as do

some states in the United States. Id.; Water Systems

16

Council, Who Owns the Water: A Summary of Existing

Water Rights Laws (August 2016).

In some contexts, similar to a subterraneous

stream, one might argue that a hydrological connection between groundwater and surface water occurs

through a “conduit.” In addition to subterraneous

streams, bedrock fractures, lava tube openings, karst,

or cave or conduit openings provide a channel for

groundwater movement. These settings may accurately be characterized as conduits. However, percolating groundwater is dispersed throughout the

subsurface and does not move in identifiable streams

and channels and should not be so characterized.

Movement through percolating groundwater appears

as classic nonpoint source pollution.

The United States Court of Appeals for the Sixth

Circuit rejected an argument that karst conduits

amounted to point sources in Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir.

2018). The court found that the only difference between karst terrain and less conducive soils, like clay,

is “expediency.” Id. at 934. Karst terrain still does not

constitute a “discernable, discrete, [or] confined” conveyance. Id.

Justice Scalia has opined, in dicta, on indirect discharges. Rapanos v. United States, 547 U.S. 714, 742–

44 (2006). In a case involving the scope of “waters of

the United States,” Justice Scalia, in his plurality opinion, responded to contentions that a narrow definition

of WOTUS would allow polluters to evade the

17

permitting requirement by discharging into noncovered waters. Since lower courts applying 33 U.S.C.

§ 1342 have found that discharges “that naturally

[wash] downstream” to covered waters are covered by

the CWA, Justice Scalia asserted that the concern was

unfounded. Id. at 743. The United States Court of Appeals for the Sixth Circuit opined that courts and commentators arguing that this statement indicates that

discharges into nonpoint sources like groundwater require a permit are mistaken. See Kentucky Waterways

Alliance, 905 F.3d at 936 (where the court says that

Justice Scalia’s reference to “conveyance” makes clear

he only wanted to say that intermediary point sources

do not break the chain of liability; it was not a position

on nonpoint source to point source pollution); see also

Tennessee Clean Water Network v. Tennessee Valley

Auth., 905 F.3d 436 (6th Cir. 2018) (relying on the same

reasoning as Kentucky Waterways Alliance).

Bolstering the conclusion of the Sixth Circuit, examination of the cases cited in Justice Scalia’s plurality opinion in Rapanos for this proposition reveal that

all of the indirect discharges involved occurred

through surface water channels that resembled, and

sometimes were held to be, point sources. United States

v. Velsicol Chemical Corp., 438 F. Supp. 945, 946–47

(W.D. Tenn. 1976) (a municipal sewer system separated the “point source” and covered navigable waters);

Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133,

1137, 1141 (10th Cir. 2005) (2.5 miles of tunnel separated the “point source” and “navigable waters”); South

Florida Water Management Dist. v. Miccosukee Tribe,

18

541 U.S. 95, 105 (2004); United States v. Ortiz, 427 F.3d

1278, 1281 (10th Cir. 2005) (a storm drain that carried

flushed chemicals from a toilet to the Colorado River

was a “point source”); Dague v. City of Burlington, 935

F.2d 1343, 1354–55 (2d Cir. 1991) (a culvert connecting

two bodies of navigable water was a “point source”),

rev’d on other grounds, 505 U.S. 557 (1992); Concerned

Area Residents for Environment v. Southview Farm, 34

F.3d 114, 118–19 (2d Cir. 1994) (adopted both the “indirect discharge” rationale and the “point source” rationale in the alternative, applied to the same facts).

However, Justice Scalia referred to the intervening waters “conduits,” “channels” (four times), or “conveyances” and limited the acceptance of the conduits to

surface water. Rapanos v. United States, 547 U.S. 714,

743–44 (2006). The definition of point source includes

the terms conduits and channels, indicating the close

nature of these intervening waters to point sources

themselves. 33 U.S.C. § 1362(14). Percolating groundwater cannot be characterized as a “conduit,” “channel,” or “conveyance.”

Although the distinction between subterraneous

streams and percolating groundwater arguably makes

effective regulation of groundwater contamination

more difficult, 2 Waters and Water Rights § 19.05(a1),

the legislature drew a similar line in distinguishing between point and nonpoint source pollution under the

Clean Water Act. A cleaner line, however, would be to

honor the structure of the CWA and find that discharges to groundwater are covered by 33 U.S.C.

§ 1329, and not the NPDES provisions.

19

III. Other Federal Statutes Regulate Groundwater Contamination.

In addition to the Clean Water Act under 33 U.S.C.

§ 1329, a number of other federal statutes regulate

groundwater contamination. The Safe Drinking Water

Act (the Act), 42 U.S.C. §§ 300f et seq., establishes uniform water quality standards for public water systems

in the United States. Under the Safe Drinking Water

Act, states hold primary enforcement responsibility so

long as the state adopts drinking water regulations no

less stringent than the national primary drinking water regulations, adopts and implements adequate procedures for enforcement of the state regulations, keeps

adequate records, and meets other requirements set

out in the Act. 42 U.S.C. § 300g-2(a). Part C of the Act

addresses protection of underground sources of drinking water against contamination by underground injection of waste or other substances. 42 U.S.C. §§ 300h

to 300h-8. 42 U.S.C. § 300h establishes requirements

for states to regulate underground injection of fluids

that endanger drinking water sources.

The Resource Conservation and Recovery Act

(RCRA), 42 U.S.C. §§ 6901 et seq., addresses the safe

management and cleanup of solid and hazardous

waste. See, e.g., Kentucky Waterways Alliance v. Kentucky Utilities Co., 905 F.3d 925 (6th Cir. 2018) (dismissing Plaintiffs’ claim under the Clean Water Act for

groundwater contamination from coal ash ponds, but

allowing a RCRA claim to go forward).

20

The Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA), 42 U.S.C.

§§ 9601 et seq., provides for the remediation of hazardous pollution and establishes a Federal “Superfund” to

assist in cleanup of contaminated sites. The United

States Environmental Protection Agency (EPA) seeks

out responsible parties for the contamination, and

cleans up the site if responsible parties cannot be identified or found, or where responsible parties do not act.

Finally, the Endangered Species Act, 16 U.S.C.

§§ 1531 et seq., may provide protection of groundwater

resources where a threatened or endangered species

is present. Supra Kvien, 16 Minn. J.L. Sci. & Tech. at

998–99. For example, karst environments contain a

number of threatened and endangered species. Sixteen

species of endangered karst invertebrates reside in

karst environments in Travis, Williamson, and Bexar

Counties in Texas alone. U.S. Fish and Wildlife Services,

Karst Invertebrates, https://www.fws.gov/southwest/es/

austintexas/esa_sp_karstinverts.html (last accessed

Apr. 30, 2019).

IV. States are Best Suited to Regulate Groundwater and Already Adequately Regulate

Groundwater.

The Clean Water Act “anticipates a partnership

between the States and the Federal Government.”

Arkansas v. Oklahoma, 50 U.S. 91, 101 (1992). The policy behind the CWA respects the primacy of states with

respect to regulation of land and water resources. “It is

21

the policy of 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, reservation and enhancement) of land and water resources. . . .” 33 U.S.C. § 1251(b) (2018).

The structure of the Clean Water Act clearly expressed the Congressional intent to regulate groundwater contamination under 33 U.S.C. § 1329. That

provision provides for the submission of plans and programs by the states to the EPA for approval with regard to state and local programs for controlling

pollution added from nonpoint sources to navigable

waters. The statute anticipates a program where the

states develop and implement regulations, while the

federal government provides technical assistance.

States traditionally control and protect groundwater

resources. Any hydrologically connected groundwater

theory must take great care to respect this cooperative

federalism. See, e.g., Damien Schiff, Keeping the Clean

Water Act Cooperatively Federal—Or, Why the Clean

Water Act Does Not Directly Regulate Groundwater, 42

Wm. & Mary Envtl. L. & Pol’y Rev. 447 (2018) (rejecting the hydrologically connected groundwater theory).

Groundwater and land use are inextricably connected. 2 Waters and Water Rights § 19.04 (2019). The

geology of each setting, which varies widely, dictates

the extent and type of effective regulation to protect

groundwater. Id. Given the dependence on regional

and local conditions, groundwater regulation is particularly suited for the states. Id. States protect

22

groundwater under state groundwater quality statutes, under state common law, and, in some states,

through the state public trust doctrine. Supra Kvien,

16 Minn. J.L. Sci. & Tech. at 993–96.

A nationwide survey of how states (including the

District of Columbia) regulate groundwater discovered

that all 49 states that responded and the District of

Columbia regulate groundwater. Sharon B. Megdal et

al., Groundwater Governance in the United States:

Common Priorities and Challenges, 53 Groundwater

677, 678 (Sept.-Oct. 2015). One state did not respond.

Twenty-five states indicated that the laws recognized

the connection between surface water and groundwater, while 43 states responded that state regulation addressed groundwater quality. Id. Three states did not

respond to either of those questions. Id. Thirty-one

states indicated that local agencies have at least some

groundwater oversight and enforcement authority. Id.

The top priority for state groundwater regulation is

groundwater quality and contamination, with 45

states indicating that issue is a priority. Id. at 681.

Based on variation in geology, climate, and

groundwater use, state governments are in the best position to regulate groundwater quality, including any

point source releases. Discharges to groundwater are

often complex and site-specific, and states effectively

manage these discharges with a range of regulatory

measures. The flexibility afforded states empowers

those with expertise in local environmental conditions

to make decisions for the most effective regulation of

pollution discharged to groundwater in each state.

23

Regarding groundwater pollution, some states

have adopted groundwater discharge permit authority

other than NPDES to regulate discharges to groundwater, while others rely on the Resource Conservation

and Recovery Act (RCRA) or the Safe Drinking Water

Act’s Underground Injection Control (UIC) program

to regulate discharges to groundwater. A state’s role

in regulating pollutant discharges to groundwater

through the RCRA and UIC programs requires expertise and hydrologic understanding of flowpaths, time,

and geographic area.

RCRA permits may include groundwater effects

on nearby surface waters as part of a remediation

program, and UIC wells—such as Class III (solution

mining), IV (hazardous/radioactive waste wells) and

V (non-hazardous waste) permits—may consider potential impacts to surface waters. Class II wells (oil

and gas produced fluids with deeper injection depths

and the greatest volume of waste to be disposed) receive limited review.

Most states implement the CWA’s NPDES permit

program for discharges to surface water. The most significant challenge for states is coordinating state programs that regulate planned point source releases to

groundwater hydrologically connected to surface water. The state must ensure that proposed releases are

treated uniformly across those programs. States working with EPA and other federal agencies should target

cross-program coordination to protect all waters in appropriate legal ways, recognizing their essential health

24

and economic contributions to the affected communities.

NGWA conducted a review of state regulatory programs for discharges of pollutants to surface water or

groundwater and found that sufficient regulations exist at the state level to provide protection of water resources. In fact, several states have chosen to regulate

point source discharges of pollutants to groundwater

via hydrologically connected sources.

States also already regulate many aspects of the

groundwater industry. Every state but Pennsylvania

regulates water well construction. Most, if not all,

states require that water well contractors be licensed.

Continuing licensure often requires continuing education. Some states provide for special licenses, testing, and training for pump installers. Regulating

discharges of groundwater through the NPDES program would add an additional, often duplicative, layer

of regulation to this process. The additional regulation

would also needlessly increase the cost of water well

systems to consumers.

Although water well contractors are highly unlikely to conduct activities that would add pollution to

groundwater, and even more highly unlikely to introduce pollution that would eventually migrate to jurisdictional waters, subjecting these releases to NPDES

permit requirements causes uncertainty. The uncertainty includes the specter of litigation that alleges

that an NPDES permit is required. See, e.g., Colorado

Tr. for Prot. & Benefits v. Souder, Miller and Assocs.,

25

Inc., 870 F. Supp. 2d 1173 (D. Colo. 2012) (action

against surveying firm alleged that drilling of boreholes discharged contaminants into waters of the

United States in violation of the CWA; District Court

granted summary judgement on the CWA claim).

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

CONCLUSION

Groundwater protection in the United States has

been called “fragmented.” Supra Megdal et al., at 681.

A comprehensive approach is needed to most effectively protect groundwater quality and quantity.

Providing for regulation of discharges to groundwater

under the NPDES program only further fragments the

system of groundwater governance. The NPDES program would only protect groundwater in those circumstances where the contaminants eventually make

their way to jurisdictional waters.

Determination of whether the groundwater is

“hydrologically connected” or whether the pollution is

“fairly traceable” to the discharge to groundwater

would likely be very difficult and very costly. In some

cases, the time and expense would lead to a conclusion

that no NPDES permit is needed. If an NPDES is

needed, another costly and time-consuming process

would determine the effluent limitations, which would,

in turn, prove costly to enforce. The resources that

would be used in this endeavor are better spent towards a collaborative federal-state-local effort to protect groundwater resources.

26

Because groundwater is not a “navigable water,”

the responsibility lies with the states to regulate discharges to groundwater. States and the EPA must

work together in the spirit of cooperative federalism to

achieve the CWA objective of “water quality that provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on

the water.”

Amici submit that this can best be accomplished

by leaving CWA regulation of discharges to groundwater to the provisions contained in 33 U.S.C. § 1329.

Those provisions leave primary responsibility for control of nonpoint pollution, including discharges to

groundwater, to the states, while giving the federal

government a meaningful role. Ensuring groundwater

remains a safe, reliable water resource requires state,

federal, and local governments to work together to ensure its management, protection, and use. While the

federal government’s role in groundwater protection

should be focused on research, technology transfer, and

funding assistance, states should determine the level

of protection afforded to groundwater since they manage the groundwater resource. The level of protection

that states provide may vary with the use and value of

the resource.

27

The judgment below should be reversed.

Respectfully submitted,

JESSE J. RICHARDSON, JR.

LAW OFFICES OF JESSE J. RICHARDSON, JR.

969 Vandalia Road

Morgantown, West Virginia 26501

jessehokie@gmail.com

(540) 327-7508

Counsel for Amici Curiae

Water Systems Council and

The National Ground Water Association