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

Supreme Court briefMay 16, 2019

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No. 18-260

IN THE

Supreme Court of the United States

COUNTY OF MAUI,

Petitioner,

HAWAI’I WILDLIFE FUND; SIERRA CLUB – MAUI GROUP;

SURFRIDER FOUNDATION; MAUI WEST PRESERVATION

ASSOCIATION,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION OF CLEAN WATER AGENCIES,

CITY OF NEW YORK, CITY AND COUNTY OF SAN

FRANCISCO, AND METRO WASTEWATER

RECLAMATION DISTRICT IN SUPPORT OF

PETITIONER

NATIONAL ASSOCIATION OF BEVERIDGE & DIAMOND, P.C.

CLEAN WATER AGENCIES

RICHARD S. DAVIS

AMANDA J. WATERS

Counsel of Record

General Counsel

ANDREW C. SILTON

1130 Connecticut Ave. N.W. 1350 I Street N.W., Suite 700

Washington, DC 20005

Suite 1050

(202) 789-6000

Washington, DC 20036

rdavis@bdlaw.com

(201) 833-2672

TIMOTHY M. SULLIVAN

201 N. Charles St.,

Suite 2210

Baltimore, MD 21201

(410) 230-1300

Counsel for Amicus Curiae National

Association of Clean Water Agencies

[additional counsel listed on inside cover]

ADDITIONAL COUNSEL

CITY OF NEW YORK

ZACHARY W. CARTER

Corporation Counsel of the

City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

Counsel for Amicus Curiae

City of New York

METRO WASTEWATER

RECLAMATION DISTRICT

EMILY JACKSON

General Counsel

6450 York Street

Denver, CO 80229

(303) 286-3416

Counsel for Amicus Curiae

Metro Wastewater

Reclamation District

CITY AND COUNTY OF SAN

FRANCISCO

DENNIS J. HERRERA

City Attorney

JOHN RODDY

Deputy City Attorney

1390 Market Street

Suite 700

San Francisco, CA 94102

Counsel for Amicus Curiae

City and County of San

Francisco

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ............................................................... 7

I. The Ninth Circuit’s Departure from the CWA’s

Text Threatens the Act’s Distinction Between

Point and Nonpoint Source Pollution. .................. 7

A. The CWA Requires Permits Only for

Discharges Actually Transported to Navigable

Waters by a Confined, Discrete Source. .......... 8

B. Extending the Act’s Permitting Requirement

to Mediated Releases Contravenes How

Congress Defined Point Sources. ................... 10

II. Requiring Permits for Mediated Releases May

Generate Uncertainty and Burdens for

Regulators and Dischargers. ............................... 12

A. Requiring NPDES Permits for Mediated

Releases Will Make Identifying Regulated

Activities More Difficult. ................................ 13

1. Congress Intended Activities Requiring

NPDES Permits to Be Readily

Identifiable. ............................................... 13

2. Identifying Sources of Mediated Releases

Will Prove Difficult.................................... 15

B. Developing Discharge Limits and Monitoring

Requirements for Mediated Releases Could

Pose Unique Difficulties. ................................ 16

1. NPDES Permits Contain Precise Effluent

Limits and Monitoring Requirements. ..... 16

2. Setting Water Quality-Based Effluent

Limits and Monitoring Requirements for

Mediated Releases May Pose Novel

Problems. ................................................... 18

III.Requiring NPDES Permits for Mediated Releases

Will Burden Environmentally-Beneficial Water

Management Practices. ....................................... 20

A. Green Infrastructure, Water Reuse, and

Groundwater Recharge Provide

Environmentally Sound Solutions to Water

Management Challenges. ............................... 21

1. Green Infrastructure Offers a Beneficial

Alternative To Traditional Stormwater

Management. ............................................. 21

2. Water Reuse Allows Municipalities to

Preserve and Extend Water Supplies. ..... 23

3. Groundwater Recharge Is An Important

Tool for Managing Water Supplies. .......... 25

B. Affirming the Ninth Circuit Would Likely

Subject These Beneficial Practices to the

Complications Associated with Permitting of

Mediated Releases. ......................................... 27

IV. State and Federal Laws Protect Groundwater

Resources More Effectively Than NPDES

Permitting. ........................................................... 29

A. States Enforce Robust Groundwater

Protection Programs. ...................................... 29

B. A Multifaceted Federal Regulatory Scheme

Protects Groundwater. ................................... 31

1. The Safe Drinking Water Act Protects

Groundwater for Potable Use. .................. 32

iii

2. The Resource Conservation and Recovery

Act Protects Groundwater from Waste

Disposal Activities. .................................... 33

3. The Federal Underground Storage Tank

Program Establishes Standards for

Preventing and Remedying Groundwater

Contamination. .......................................... 35

4. EPA May Use the Superfund Program to

Require Groundwater Remediation. ........ 36

CONCLUSION .......................................................... 38

TABLE OF AUTHORITIES

Cases

26 Crown Assocs., LLC v. Greater New Haven

Reg’l Water Pollution Control Auth.,

2017 WL 2960506 (D. Conn. July 11, 2017) ..........11

Abramski v. United States,

573 U.S. 169 (2014) ..................................................9

Am. Water Works Ass’n v. EPA,

40 F.3d 1266 (D.C. Cir. 1994) ................................32

Appalachian Power Co. v. Train,

545 F.2d 1351 (4th Cir. 1976) ................................11

Dean v. United States,

556 U.S. 568 (2009) ..................................................8

EPA v. Cal. ex rel. State Water Res. Control

Bd., 426 U.S. 200 (1976) ............................ 13, 14, 16

Freeman v. Quicken Loans, Inc.,

566 U.S. 624 (2012) ..................................................8

Interfaith Cmty. Org. v. Honeywell Int’l, Inc.,

399 F.3d 248 (3d Cir. 2005) ...................................35

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ................................................17

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ................................................36

Matter of Bell Petroleum Servs., Inc.,

3 F.3d 889 (5th Cir. 1993) ......................................37

N. Plains Res. Council v. Fid. Expl. & Dev.

Co., 325 F.3d 1155 (9th Cir. 2003).........................28

NRDC v. Costle,

568 F.2d 1369 (D.C. Cir. 1977) ........................ 17, 20

NRDC v. EPA,

915 F.2d 1314 (9th Cir. 1990) .......................... 14, 15

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

550 F.3d 778 (9th Cir. 2008) ..................................14

Piney Run Preservation Ass’n v. Cty. Comm’rs

of Carroll Cty., 268 F.3d 255 (4th Cir. 2001) ........18

Sierra Club v. Va. Elec. & Power Co.,

903 F.3d 403 (4th Cir. 2018) ..................................27

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

of Indians, 541 U.S. 95 (2004) .................................9

Torres v. Lynch,

136 S. Ct. 1619 (2016) ..............................................9

United States v. Plaza Health Labs.,

3 F.3d 643 (2d Cir. 1993) ................................... 9, 10

United States v. Villegas,

512 U.S. 1245 (1994) .......................................... 9, 10

Vill. of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962 (7th Cir. 1994) .........................29

Williams v. Taylor,

529 U.S. 420 (2000) ..................................................8

Docketed Cases

Anacostia Watershed Soc’y, v. Dist. of

Columbia Water & Sewer Auth.,

No. 1:00-CV-00183 (D.D.C. 2015) ..........................23

United States v. City of Chattanooga,

No. 1:12-cv-00245 (E.D. Tenn.

Apr. 24, 2013) .........................................................23

United States v. Lexington-Fayette Urban

Cnty. Gov’t, No. 5:06-cv-386 (E.D. Ky.

Jan. 3, 2011) ...........................................................23

Federal Statutory Authorities

Clean Water Act,

33 U.S.C. §§ 1251-1387.........................................4, 7

33 U.S.C. § 1251(a)(7) .............................................11

33 U.S.C. § 1251(c)(7) .............................................11

33 U.S.C. § 1311(a) ....................................... 8, 10, 14

33 U.S.C. § 1311(b)(1)(C) .................................. 17, 19

33 U.S.C. § 1318......................................................18

33 U.S.C. § 1329........................................................7

33 U.S.C. § 1329(b)(1) ....................................... 11, 30

33 U.S.C. § 1329(i) ..................................................30

33 U.S.C. § 1342(a) ....................................... 8, 10, 11

33 U.S.C. § 1342(a)(2) .............................................18

33 U.S.C. § 1342(b) .................................................13

33 U.S.C. § 1342(c)..................................................13

33 U.S.C. § 1342(p)(3)(B)(iii) ..................................17

33 U.S.C. § 1362(6) .................................................28

33 U.S.C. § 1362(11) ...............................................16

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

33 U.S.C. § 1362(14) ........................................... 8, 27

33 U.S.C. § 1362(27) ...............................................21

33 U.S.C. § 1377a....................................................22

Safe Drinking Water Act,

42 U.S.C. §§ 300f-300j-27 .......................................32

42 U.S.C. § 300f(1) ..................................................32

42 U.S.C. § 300h(b)(1).............................................32

42 U.S.C. § 300h(b)(1)(A) ........................................32

42 U.S.C. § 300h(d)(2).............................................32

42 U.S.C. § 300h-1(b) ..............................................32

42 U.S.C. § 300i(a) ..................................................33

Resource Conservation and Recovery Act,

42 U.S.C. §§ 6901-6992k ........................................33

42 U.S.C. § 6924(u) .................................................34

vii

42 U.S.C. § 6972(a)(1)(B) ........................................35

42 U.S.C. § 6973(a) .................................................35

42 U.S.C. §§ 6991-6991m .......................................35

42 U.S.C. § 6991c(b)(1) ...........................................35

Comprehensive Environmental Response,

Compensation, and Liability Act,

42 U.S.C. §§ 9601-9675...........................................36

42 U.S.C. § 9601(8)(B) ............................................37

42 U.S.C. § 9604(a) .................................................37

42 U.S.C. § 9606(a) .................................................37

Water Quality Act of 1965,

Pub. L. 89-234, 79 Stat. 903 (1965) .......................13

Federal Water Pollution Control Act

Amendments of 1972,

Pub. L. No. 92-500, 86 Stat. 816 (1972) ................12

Clean Water Act of 1977,

Pub. L. No. 95-217, 91 Stat. 1566 (1977) ..............12

Water Infrastructure Improvement Act,

Pub. L. No. 115-436, 132 Stat. 5558 (2019) ..........22

State & Local Statutory / Administrative

Authorities

15 R. City of N.Y. §§ 48-01 to -09 ..............................23

30 Tex. Admin. Code § 210.1-.85 ..............................25

Ariz. Admin. Code R18-9-A701-A707 .......................24

Ariz. Admin. Code R18-11-301-309 and

Table A ....................................................................24

Ariz. Admin. Code R18-11-405.B ..............................31

Ariz. Rev. Stat. Ann. § 45-801.01. ....................... 24, 26

Ariz. Rev. Stat. Ann. § 45-45-561(12)........................26

Ariz. Rev. Stat. Ann. § 45-45-562(A) .........................26

Cal. Water Code § 12926 ...........................................26

Cal. Water Code § 13560(a) ......................................24

Fla. Admin. Code r. 62-520.310(2) ............................31

viii

Fla. Admin. Code r. 62-610.00-.890 ..........................25

Fla. Stat. Ann. § 163.3177(6)(c). ................................26

Fla. Stat. Ann. § 403.086 ...........................................25

Mass. Gen. Laws ch. 21 .............................................23

N.Y. City Charter § 224.1(l)(2)(iv) ............................23

North Carolina Administrative Code,

15A N.C. Admin. Code 02L.0101(a) .......................31

15A N.C. Admin. Code 02L.0103(b) .......................31

15A N.C. Admin. Code 02L.0103(d) .......................31

15A N.C. Admin. Code 02L.0106 ...........................31

15A N.C. Admin. Code 02L.0202(a) .......................31

Wash. Admin. Code § 173-200-040(1). ......................30

Wash. Admin. Code § 173-200-100............................30

Wash. Admin. Code § 173-200-100(2), (4) .................30

Wash. Stat. Ann. § 90.82.070(2). ..............................26

Seattle, Wash. Mun. Code § 22.805.070.D.2. ...........23

Legislative History

Cong. Research Serv., A Legislative History of

the Water Pollution Control Amendments of

1972 (Comm. Print 1973) ................................. 12, 30

H.R. 11896, 92d Cong. (2d Sess. 1972) .....................14

S. 2770, 92d Cong. (2d Sess. 1971) ...........................14

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

Federal Rules and Regulations

40 C.F.R. § 122.44(d)(1) .............................................17

40 C.F.R. § 122.44(d)(1)(vi) ........................................17

40 C.F.R. § 122.44(i) ..................................................18

40 C.F.R. § 122.44(i)(2) ..............................................18

40 C.F.R. § 122.44(k) .................................................17

40 C.F.R. § 122.44(k)(3) .............................................17

40 C.F.R. § 144.12(a) ..................................................32

40 C.F.R. § 144.80(e) ..................................................33

40 C.F.R. Part 146 .....................................................33

40 C.F.R. § 146.5 ........................................................33

40 C.F.R. § 146.51(a) ..................................................33

40 C.F.R. §§ 257.90-.98 .............................................34

40 C.F.R. Part 258, Subpart E ..................................34

40 C.F.R. § 258.40(a) ........................................... 33-34

40 C.F.R. § 264.91(a) .................................................34

40 C.F.R. § 264.92 .....................................................33

40 C.F.R. § 264.93 .....................................................33

40 C.F.R. §§ 264.97-.99 .............................................34

40 C.F.R. § 264.100 ...................................................34

40 C.F.R. § 264.101(a) ...............................................34

40 C.F.R. § 264.111(b) ...............................................34

40 C.F.R. § 264.112(b)(5) ...........................................34

40 C.F.R. Part 280, Subpart C ..................................35

40 C.F.R. § 280.20 .....................................................35

40 C.F.R. § 280.21 .....................................................35

40 C.F.R. § 280.40(a) .................................................36

40 C.F.R. § 280.62(a)(2) .............................................36

40 C.F.R. § 280.65(a) .................................................36

40 C.F.R. § 280.66(a) .................................................36

40 C.F.R. §§ 282.50-.102 ...........................................35

40 C.F.R. § 300.430(a)(iii)(F) ....................................37

40 C.F.R. § 300.430(e)(2)(i)(B) ..................................37

40 C.F.R. § 300.430(e)(2)(i)(C) ..................................37

Superfund Implementation, Exec. Order No.

12580, 52 Fed. Reg. 2923 (Jan. 23, 1987) ..............37

Other Authorities

Cal. State Water Resources Control Bd.,

Policy for Water Quality Control for

Recycled Water (2013) .............................................25

EPA,

2012 Guidelines for Water Reuse (2012) .......... 24-26

EPA,

2017 Potable Reuse Compendium (2017) ......... 23-25

EPA, Achieving Water Quality Through

Integrated Municipal Stormwater and

Wastewater Plans (Oct. 27, 2011) ..........................23

EPA Region 10, Authorization to Discharge

Under the NPDES for Wastewater

Discharges from Idaho Drinking Water

Treatment Facilities (Aug. 16, 2016) ......................28

EPA,

Combined Sewer Overflows (Aug. 30, 2018) ..........22

EPA, Press Release: EPA Issues First

Municipal Wastewater Discharge Permit in

the Nation (July 30, 1973) ........................................4

EPA,

NPDES Permit Writer’s Manual (Sep. 2010) ........17

EPA, NPDES State Program Information:

State Program Authority ........................................13

EPA, Summary of Key Existing CERCLA

Policies for Groundwater Restoration

(June 26, 2009) .......................................................37

EPA, Superfund: CERCLA Overview

(June 4, 2018) .........................................................36

EPA, Tools, Strategies and Lessons Learned

from EPA Green Infrastructure Technical

Assistance Projects (2015).......................................21

EPA, Using Green Infrastructure to Protect

Water Quality in Stormwater, CSO,

Nonpoint Source and other Water Programs

(Mar. 5, 2007) ..........................................................23

EPA, What is Green Infrastructure? .........................27

Herman Bouwer, Artificial recharge of

groundwater: hydrogeology and engineering,

10 Hydrogeol. J. 121 (2002) ....................................25

Josh Foster et al., The Center for Clear Air

Policy, The Value of Green Infrastructure for

Urban Climate Adaptation (2011) .........................21

Merriam-Webster’s Collegiate Dictionary

(11th ed. 2003) ..........................................................9

Nat’l Research Council, Understanding Water

Reuse: Potential for Expanding the Nation's

Water Supply Through Reuse of Municipal

Wastewater (2012)...................................................24

NRDC, Encourage Green Infrastructure ..................22

Orange Cnty. Water Dist.,

GWRS–The Process .................................................26

Orange Cnty. Water Dist.,

GWRS–final expansion ...........................................26

Riverkeeper, Inc., Riverkeeper Supports NYC

Green Infrastructure (Oct. 4, 2010) ........................22

Thomas Richichi, Safe Drinking Water Act,

Environmental Law Handbook (23d ed.

2017) ........................................................................33

2A Sutherland Statutes & Statutory

Construction § 47:28 (7th ed.) ..................................8

Webster’s Third New Int’l Dictionary

(1st ed.1961) ..............................................................9

INTEREST OF AMICI CURIAE1

Amici represent public entities from across the

United States that provide water supply, water

conservation, flood and stormwater management, and

wastewater treatment services to the public. They or

their

members

own,

operate,

manage

infrastructure that may face additional regulatory

burdens and uncertainty if the Clean Water Act’s

permitting requirements expand to cover releases

conveyed to navigable waters as nonpoint source

pollution.

The National Association of Clean Water Agencies

(“NACWA”) is a nonprofit trade association

representing the interests of publicly-owned

wastewater and stormwater utilities across the

country. NACWA’s members include more than 320

municipal clean water agencies that own, operate, and

manage publicly-owned treatment works, wastewater

sewer systems, stormwater sewer systems, water

reclamation districts, and all aspects of wastewater

collection, treatment, and disposal.

The City of New York, a political subdivision of the

State of New York, is the country’s largest municipal

water and wastewater utility. The City’s Department

of Environmental Protection (“DEP”) treats roughly

1 All parties have consented to the filing of this brief.

counsel for a party authored this brief in whole or in part, nor

has such counsel or any party made a monetary contribution

intended to fund the preparation and submission of this brief.

No person other than amici curiae and their members have made

a monetary contribution to the preparation and submission of

this brief.

Petitioner’s Department of Environmental

Management is a member of amicus National Association of

Clean Water Agencies, but Petitioner has made no monetary

contribution for the purpose of preparing this brief.

1.3 billion gallons of wastewater per day and, as a

public water utility, supplies and distributes more

than one billion gallons of drinking water each day to

over nine million people. To meet these demands and

ensure compliance with the Clean Water Act and

other regulatory requirements, DEP’s nearly 6,000

employees operate and maintain an extensive source

water protection program; a world-renowned water

supply system; and a wastewater system comprised of

7,400 miles of sewers, 96 pump stations, four

combined sewer overflow detention facilities, and

fourteen in-City wastewater treatment plants.

The City and County of San Francisco is a

consolidated charter city and county organized under

the laws of the State of California. Acting by and

through its Public Utilities Commission, the City

treats approximately 75 million gallons of wastewater

each dry weather day, and well over 400 million

gallons per day of combined stormwater and

wastewater during rainstorms. The City also supplies

and distributes more than 300 million gallons of

drinking water each day to over 2.5 million people,

and provides energy to substantial large scale users in

San Francisco. The City operates and maintains

extensive source water storage and treatment

facilities and watershed protection programs; power

generation and distribution systems; and a

wastewater system consisting of approximately 1,000

miles of sewers, three wastewater treatment plants,

and appurtenant pumping and discharge facilities.

Metro

Wastewater

Reclamation

District

(“MWRD”), a political subdivision of the State of

Colorado,

provides

wastewater

services

approximately 2 million people across a 715-square

mile service area that spans much of the metropolitan

Denver area.

MWRD owns and operates two

wastewater treatment plants and treats on average

135 million gallons of wastewater per day, with the

capacity to treat up to 248 million gallons each day.

MWRD’s mission is to protect the region’s health and

environment by cleaning water and recovering

resources. It executes this mission through resource

stewardship, infrastructure management, process

optimization, and regulatory engagement and

compliance.

SUMMARY OF ARGUMENT

Amici

represent

public

wastewater

and

stormwater utilities across the country that provide

vital public health and environmental services.

Through the operation of sewage and stormwater

collection systems, publicly-owned treatment works

(“POTWs”),

and

other

water

management

infrastructure, amici play a critical role in protecting

the nation’s waters and our communities’ health.

Amici and their members have for decades

operated under and complied with National Pollution

Discharge Elimination System (“NPDES”) permits

issued under the Clean Water Act, (“CWA” or the

“Act”), 33 U.S.C. §§ 1251-1387. The 1972 Act includes

numerous provisions specifically addressing POTWs,

and a POTW was among the first sources issued an

Understanding the CWA’s

NPDES permit.2

requirements and structure has been critical to

amici’s operations.

The Ninth Circuit’s decision threatens to upend

the Act’s structure and impose unnecessary

regulatory burdens on a number of amici’s beneficial

water management practices. The court departed

from the CWA’s plain language to hold that the

statute requires an NPDES permit for releases of

pollutants from a putative “point source” that

subsequently are conveyed to surface waters as

nonpoint source pollution. Congress foreclosed the

possibility that these mediated “discharges” would

require NPDES permits by specifying that a discharge

2 See U.S. Environmental Protection Agency (“EPA”), Press

Release: EPA Issues First Municipal Wastewater Discharge

Permit in the Nation (July 30, 1973), http://tinyurl.com/y3y3cg2c.

occurs only when a point source conveys pollutants to

navigable waters.

Requiring permits for releases mediated by a

nonpoint source risks upsetting the CWA’s basic

organizing principle—the distinction between point

and nonpoint source pollution. The Ninth Circuit

failed to recognize that nonpoint source pollution—

like surface runoff—originates in many, if not most,

instances from discrete locations that it would

characterize as point sources.

Nonpoint source

pollution may frequently be “fairly traceable” to a

discrete source. As a result, the two classes of

pollution would in many cases cease to be distinct, to

the detriment of the Act’s regulatory programs.

The NPDES program will not function as Congress

intended if this distinction becomes meaningless.

Mediated releases may prove difficult to identify

because pathways between a putative point source

and surface waters can be difficult to discern.

Congress did not intend the determination of whether

a source requires an NPDES permit to be so difficult

or fact-intensive for regulators or potentiallyregulated entities. Changes in quality and pollutant

content as effluent traverses a nonpoint source may

also test the limits of regulators’ ability to establish

the effluent limitations and monitoring requirements

that are hallmarks of NPDES permits.

These regulatory challenges would fall on

innovative water management practices that could be

sources of mediated releases. Utilities are making

substantial investments in green infrastructure,

water reuse, and groundwater recharge technologies

to preserve resources and reduce environmental

impacts. These methods have the potential to add,

however minutely, to nonpoint source pollution and

could require NPDES permits if the Ninth Circuit’s

decision is affirmed.

Additional regulatory

uncertainty and burdens potentially associated with

this permitting requirement would chill utilities’

investment in these management techniques.

Conversely, reversal of the decision below would

not imperil groundwater resources. As Congress

intended, states have enacted groundwater

regulations tailored to local circumstances. Multiple

federal programs also protect this resource by

regulating drinking water quality and operations

likely to pose risks of groundwater contamination.

The robust scheme of state and federal groundwater

regulation in place today leaves no regulatory “gap”

that could justify expanding the NPDES program

beyond its statutory limits.

ARGUMENT

The Ninth Circuit’s Departure from the

CWA’s

Text

Threatens

the

Act’s

Distinction Between Point and Nonpoint

Source Pollution.

The decision below creates regulatory uncertainty

for a variety of amici’s water management practices

by ignoring the CWA’s text, structure, and history.

The Ninth Circuit deviated from the statute’s

language to decree that releases from a discrete

source conveyed to navigable waters by a nonpoint

source may require an NPDES permit. See Petition

Appendix (“Pet. App.”) 14-25. The Ninth Circuit

would require permits for these “discharges,” which

have been diffused during conveyance by a nonpoint

source, so long as pollutants in surface waters are

“fairly traceable” to a point source. Id. at 24.

The conclusion that such mediated releases

require permits—as well as the novel “fairly

traceable” test—cannot be reconciled with the Act.

Congress required permits for only point source

pollution, which occurs when a discrete source is the

mechanism that actually transports pollutants into

navigable waters. The CWA places nonpoint source

pollution under other programs, including state

regulation. See 33 U.S.C. § 1329. Imposing the

NPDES program on mediated releases undermines

the distinction between point and nonpoint source

pollution and muddles a regulatory scheme that

Congress designed to provide fixed, identifiable

parameters.

A. The CWA Requires Permits Only for

Discharges Actually Transported to

Navigable Waters by a Confined, Discrete

Source.

The CWA’s plain language cannot be stretched to

require permits for pollutants conveyed to waters by

nonpoint sources. Rather than demand permits for all

sources of water pollution, the Act mandates that only

a “discharge of any pollutant” requires an NPDES

permit. 33 U.S.C. §§ 1311(a), 1342(a). This text and

related statutory definitions dictate the breadth of

this permitting requirement. See, e.g., Dean v. United

States, 556 U.S. 568, 572 (2009) (“We start, as always,

with the language of the statute” in questions of

statutory interpretation (quoting Williams v. Taylor,

529 U.S. 420, 431 (2000))).

Congress cabined the requirement to obtain a

permit by carefully defining discharges regulated by

the Act. As defined, a “discharge of a pollutant” occurs

when there is “any addition of any pollutant to

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

§ 1362(12)(A). A “point source” is “any discernible,

confined, and discrete conveyance.” Id. § 1362(14).

That a point source is first and foremost a

“conveyance” forecloses reading the CWA to require

permits for releases delivered to navigable waters by

nonpoint sources. The word “conveyance,” which the

Act does not define, should be afforded its ordinary,

common meaning.3 Thus, the Act demands that a

3 See, e.g., Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634

(2012) (“it is normal usage that, in the absence of contrary

indication, governs our interpretation of [statutory] texts”); see

also 2A Sutherland Statutes & Statutory Construction § 47:28

(7th ed.) (“unless otherwise defined, words are interpreted to

point source function as “means of transport” for

pollutants. Merriam-Webster’s Collegiate Dictionary

273 (11th ed. 2003); Webster’s Third New Int’l

Dictionary 499 (1961) (“a serving as a means of

transportation”).

Point sources must further transport pollutants to

a particular place: navigable waters. The Act’s use of

the term “conveyance” to define point sources must be

read in the context of the entire CWA. E.g., Torres v.

Lynch, 136 S. Ct. 1619, 1226 (2016) (courts interpret

statutes “‘with reference to the statutory context.”

(quoting Abramski v. United States, 573 U.S. 169, 179

(2014))). A point source must transport pollutants

specifically “to navigable waters.”

33 U.S.C.

§ 1362(12)(A). This Court has confirmed this reading:

a point source’s defining characteristic is being the

vehicle that “convey[s] the pollutant to ‘navigable

waters.’” S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95, 105 (2004); see also

United States v. Plaza Health Labs., 3 F.3d 643, 646

(2d Cir. 1993), cert. denied sub nom United States v.

Villegas, 512 U.S. 1245 (1994) (point sources “act as a

means of conveying pollutants … to navigable

waterways.”).

A discrete source of pollution cannot be a point

source when groundwater or another intervening

nonpoint source diffuses pollutants and carries them

to navigable waters. When that occurs, the nonpoint

source, not the pollutants’ original source, serves as

the conveyance.

The original source transports

pollutants to navigable waters only in the remote

sense that a taxicab to the airport serves as a

conveyance from the United States to Europe. Accord

take their ordinary, contemporary, common meaning in the

absence of persuasive reasons to the contrary”).

Plaza Health Labs, 3 F.3d at 653 n.6 (sources “may be

point sources when they deposit waste directly into

water … [not] when they … deposit oil in a driveway,

leaving it to be washed into nearby rivers”).

Consequently, when pollutants reach navigable

waters via a nonpoint source, the original source of the

pollutants is not a point source capable of making a

regulated “discharge.” These pollutants are nonpoint

source pollution.

B. Extending

the

Act’s

Permitting

Requirement to Mediated Releases

Contravenes How Congress Defined Point

Sources.

The Ninth Circuit expanded the CWA’s permitting

requirement without acknowledging how a point

source must convey pollutants to navigable waters.

The panel instead created a novel standard, under

which a point source need only be pollutants’ starting

point. So long as the pollutants are “fairly traceable”

to a discrete location, the Ninth Circuit would require

an NPDES permit. Pet. App. 24. This standard

requires a permit even when the original source is far

removed from navigable waters and a nonpoint

source—like

groundwater—conveys

dispersed

pollutants to surface waters.

This failure to honor the Act’s language risks

erasing its fundamental distinction between point and

nonpoint source pollution. Congress intended these

two types of pollution to be distinct and subject to

different regulatory schemes. Congress established

the NPDES program to regulate point source

pollution. See 33 U.S.C. §§ 1311(a), 1342(a). By

contrast, the Act contemplated that nonpoint source

pollution—like runoff—would be regulated primarily

at the state level under a different set of pollution

control programs.4 The CWA’s definition of a point

source, which the Ninth Circuit ignored, serves as the

dividing line between these two types of pollution and

their different programs. See S. Rep. No. 92-414, at

78 (1971) (Congress intended the definition of point

source “to distinguish between control requirements

[for] confined conveyances … and control

requirements which are imposed to control runoff”).

Pollution conveyed by nonpoint sources can often

be traced to some confined, discrete source.

Pollutants found in the air can be deposited in surface

waters, and chemicals found on a playing field or lawn

may be washed into a river. This nonpoint source

pollution has to come from somewhere—often a

confined, discrete conveyance like a smokestack, pipe,

or nozzle. Eliminating the requirement that a point

source serve as the conveyance of pollution to

navigable waters makes it such that nonpoint sources

of pollution will “invariably be reformulated as pointsource [sic] pollution by going up the causal chain to

identify the initial point sources of the pollutants ….”

26 Crown Assocs., LLC v. Greater New Haven Reg’l

Water Pollution Control Auth., 2017 WL 2960506, at

*8 (D. Conn. July 11, 2017). The effect of the Ninth

Circuit’s decision—or any holding that a point source

need not act as a conveyance to navigable waters—is

to require NPDES permits for nonpoint source

4 See Appalachian Power Co. v. Train, 545 F.2d 1351, 1373

(4th Cir. 1976) (“Congress consciously distinguished between

point and nonpoint source discharges, giving EPA authority

under the Act to regulate only the former.”); 33 U.S.C.

§ 1251(a)(7) (“it is the national policy that programs for the

control of nonpoint sources of pollution be developed and

implemented in an expeditious manner”); id. § 1329(b)(1) (states

must develop programs to manage nonpoint source pollution).

pollution,

preclude.

II.

which

Congress

explicitly

sought

Requiring Permits for Mediated Releases

May Generate Uncertainty and Burdens

for Regulators and Dischargers.

NPDES permits are ill-suited for regulating the

nonpoint source pollution that results from mediated

releases. When Congress enacted the CWA in 1972,5

it sought to create a permitting scheme in which

regulated activities could be clearly and readily

identified. Accord Cong. Research Serv., A Legislative

History of the Water Pollution Control Act

Amendments of 1972 at 162 (“CWA Leg. History”)

(Comm. Print 1973) (“Uniformity, finality, and

enforceability” are the “three essential elements” of

the CWA’s scheme (floor statement of Sen. Muskie

supporting the conference report)). Congress also

designed the NPDES program to impose clear, readily

enforceable end-of-pipe discharge limits and

monitoring requirements.

The CWA’s disparate

treatment of point and nonpoint source pollution—

requiring NPDES permits only for the former—is

fundamental to allowing the NPDES program to

function as intended.

The CWA cannot properly serve these objectives if

the decision below is affirmed and mediated releases

require permits. Determining which sources require

5 Congress styled the 1972 statute as amendments to the

Federal Water Pollution Control Act of 1948. Federal Water

Pollution Control Act Amendments of 1972, Pub. L. No. 92-500,

86 Stat. 816 (1972). The statute was popularly known as the

Clean Water Act, which Congress recognized when it passed

amendments in 1977. See Clean Water Act of 1977, Pub. L. No.

95-217, 91 Stat. 1566 (1977). Unless otherwise noted, references

to enactment of the CWA or the Act describe the 1972 statute.

permits would become more difficult for permitissuing agencies,6 as well as amici and other regulated

entities. This category of discharges would pose for

both regulators and the regulated community novel,

complex regulatory challenges that would resemble

the defects in federal water pollution laws that

Congress sought to correct in 1972.

A. Requiring NPDES Permits for Mediated

Releases Will Make Identifying Regulated

Activities More Difficult.

1. Congress

Intended

Activities

Requiring NPDES Permits to Be

Readily Identifiable.

Requiring NPDES permits for mediated releases

will make identifying activities and infrastructure

subject to the CWA more difficult and reintroduce a

critical problem that Congress intended the CWA to

rectify. Before the CWA’s passage, the Water Quality

Act of 1965 set the framework for federal water

quality regulation. Pub. L. 89-234, 79 Stat. 903

(1965). That statute relied solely on states setting

“ambient water quality standards specifying the

acceptable levels of pollution in a state’s interstate

navigable waters” without specifying end-of-pipe

compliance requirements for individual sources. EPA

v. Cal. ex rel. State Water Res. Control Bd., 426 U.S.

200, 202 [“SWRCB”] (1976).

6 The CWA allows states to apply to EPA for authorization to

administer the NPDES program. 33 U.S.C. § 1342(b). Once a

state receives authorization, EPA ceases to be the agency issuing

NPDES permits in that state. Id. § 1342(c). By July 2019, all

but three (Massachusetts, New Hampshire, and New Mexico)

states will administer the NPDES program. EPA, NPDES State

Program

Information:

State

Program

Authority,

https://tinyurl.com/y5eq64ag (last visited May 10, 2019).

This regime, with water quality standards as its

only tool, proved ineffective primarily because both

regulators and dischargers found it difficult to

identify which sources could be subject to

enforcement.7 The 1965 statute allowed enforcement

actions to be brought only “if the wastes discharged by

polluters reduce water quality below the standards.”

S. Rep. No. 92-414, at 4. This enforcement mechanism

required regulators “to work backward from an

overpolluted body of water” to the “entities [who] were

responsible” for the pollution. NRDC v. EPA, 915 F.2d

1314, 1316 (9th Cir. 1990); SWRCB, 426 U.S. at 204

(Congress intended the 1972 amendments to address

the problem of having to trace pollutants back to their

original source). The complexity of determining who

could be subject to liability resulted in “an almost total

lack of enforcement.” S. Rep. No. 92-414, at 5.

Congress’s solution to this problem was to create

the CWA’s basic “organizational paradigm”: the

“disparate treatment of discharges from point and

nonpoint sources.” Or. Nat. Desert Ass’n v. U.S. Forest

Serv., 550 F.3d 778, 780 (9th Cir. 2008). Congress

subjected the former, but not the latter, to the

requirement to obtain a permit.8 33 U.S.C. § 1311(a).

Congress thereby limited the universe of activities

requiring permits to point sources because they “could

Implementation of the 1965 law also suffered because

nearly half of the states failed to submit their water quality

standards for federal review. See S. Rep. No. 92-414, at 4.

8 The House and Senate had some differences over how to

structure the CWA, but both chambers were committed

throughout the Act’s consideration to limit the statute’s

permitting requirement to point sources. See H.R. 11896

§§ 301(a), 502(13), (15), 92d Cong. (2d Sess. 1972); S. 2770

§§ 301(a), 502(n), (p), 92d Cong. (2d Sess. 1971).

be identified and regulated more easily than nonpoint

source polluters.” NRDC v. EPA, 915 F.2d at 1316.

2. Identifying Sources of Mediated

Releases Will Prove Difficult.

Requiring NPDES permits for mediated releases

would once again make it difficult for regulators and

operators to know what activities are regulated. If

mediated releases require NPDES permits, entities

would need to assess whether a facility’s releases have

the potential to reach surface waters after being

dispersed as nonpoint source pollution. These diffuse

pathways to surface water—by runoff or through

groundwater—can be difficult to discern and may

become clear only after a release has commenced. In

order to avoid CWA liability, plant owners and

operators—even those far from navigable waters—

would need to investigate whether pathways between

their facilities and surface waters exist, and reach

definitive determinations prior to commencing

operations.

These diffuse, hard-to-identify pathways to

navigable waters will require regulators and the

regulated public once again to work backwards from

pollutants in a waterbody to establish a link to a

source. This very exercise hindered implementation

of pre-1972 water pollution control laws. See supra

Section II.A.1. The Ninth Circuit’s “fairly traceable”

test only underscores how regulating these releases

turns back the clock. One would again need to assess

whether pollutants in water are linked to a source.

Congress already found—over 45 years ago—that

basing the applicability of water pollution regulations

on such an analysis is unworkable.

B. Developing

Discharge

Limits

and

Monitoring Requirements for Mediated

Releases Could Pose Unique Difficulties.

Even where a mediated release has an identifiable

source, permitting agencies may have trouble

developing workable permit conditions. The quality

of a source’s effluent can change—due to additions of

new pollutants and chemical reactions—while a

pollutant travels through a nonpoint source. This

phenomenon could make setting discharge limits

protective of water quality substantially more

complex, requiring regulators to choose among

problematic alternatives when setting permit

conditions.

1. NPDES Permits

Effluent

Limits

Requirements.

Contain Precise

and

Monitoring

Congress designed the NPDES program to provide

clear benchmarks for assessing compliance.

addition to making regulated activities hard to

identify, the Water Quality Act of 1965 failed to

provide specific “standards to govern the conduct of

individual polluters.” SWRCB, 426 U.S. at 202. The

statute—and federal regulation of water pollution

generally—further suffered from “a lack of

information concerning discharges, amounts and

kinds of pollution, abatement measures taken, and

compliance.” S. Rep. No. 92-414, at 6.

The NPDES program addressed this lack of

standards by generally requiring permits to impose

clear,

single-number

effluent

limitations—

restrictions “on quantities, rates, and concentrations

of … constituents … discharged from point sources.”

33 U.S.C. § 1362(11). Congress intended these limits

to provide “‘clear and identifiable’ discharge

standards.” See Int’l Paper Co. v. Ouellette, 479 U.S.

481, 496 (1987) (quoting S. Rep. No. 92-414, at 81); S.

Rep. No. 92-414, at 81 (Congress sought clarity so that

effluent limitations “[w]ould provide manageable and

precise benchmarks for enforcement.”).

EPA’s

experience in implementing the CWA confirmed that

effluent limitations needed to be precise to afford both

“the discharger and the regulatory agency … an

identifiable standard upon which to determine …

compliance.” NRDC v. Costle, 568 F.2d 1369, 1378

(D.C. Cir. 1977).

NPDES permits generally achieve this required

precision by containing numeric effluent limits unless

a numeric standard cannot feasibly be developed.9

See 40 C.F.R. § 122.44(k)(3); EPA, NPDES Permit

Writer’s Manual at 5-22 (Sep. 2010). For instance,

NPDES permits require water quality-based effluent

limitations (“WQBELs”) when permit limits based on

available

pollution control

technologies

are

insufficient to achieve applicable state-established

water quality standards. 33 U.S.C. § 1311(b)(1)(C); 40

C.F.R. § 122.44(d)(1). Even when a water quality

standard uses narrative criteria (e.g., protective of fish

populations), permit writers need to develop a

numeric basis for calculating a permit limit to protect

these criteria. See 40 C.F.R. § 122.44(d)(1)(vi).

9 EPA has long interpreted the CWA to authorize NPDES

permits to impose non-numeric “best management practices” to

control pollution only when “[n]umeric effluent limitations are

infeasible” or where specifically authorized by the Act. 40 C.F.R.

§ 122.44(k).

For example, the CWA allows the use of

“management practices, control techniques” and other nonnumeric standards in permits for discharges of stormwater from

municipal separate storm sewer systems.

33 U.S.C.

§ 1342(p)(3)(B)(iii).

Congress also required NPDES permits to provide

a basis for monitoring compliance with these numeric

limitations. 33 U.S.C. §§ 1318, 1342(a)(2); 40 C.F.R.

§ 122.44(i). A permit’s monitoring provisions require

a discharger to measure its effluent’s characteristics,

including its volume and pollutant content. 40 C.F.R.

§ 122.44(i). The discharger must report its monitoring

results to the permitting authority on a regular basis.

Id. § 122.44(i)(2). Congress found these requirements

would serve as a “necessary adjunct to the

establishment

effective

water

pollution

requirements and enforcement of such requirements.”

S. Rep. No. 92-414, at 62. Experience has further

confirmed that the NPDES program’s effectiveness “is

heavily dependent on permit holder compliance with

the CWA’s monitoring and reporting requirements.”

Piney Run Preservation Ass’n v. Cty. Comm’rs of

Carroll Cty., 268 F.3d 255, 266 (4th Cir. 2001).

2. Setting Water Quality-Based Effluent

Limits and Monitoring Requirements

for Mediated Releases May Pose Novel

Problems.

Setting precise WQBELs and associated

monitoring requirements for mediated releases could

require EPA and state agencies to confront new

permit-writing challenges. When a point source itself

conveys pollutants to surface waters, the quality of

effluent leaving the point source is generally the same

as or very close to its quality upon entering the water.

The effluent’s potential impact on water quality—and

how a regulator must set a WQBEL—therefore can be

readily ascertained. The discharging outfall also

provides a single, identifiable location for assessing

compliance with the limit.

By contrast, the quality of effluent entering

surface waters after being conveyed by a nonpoint

source often may not have a clear relationship to endof-pipe effluent quality.

This disconnect arises

because effluent traveling through a nonpoint source

can change both physically and chemically owing to

circumstances beyond the discharger’s control. Due to

nonpoint source pollution’s diffuse nature, the

changes to the effluent also may not be uniform across

an entire area. Effluent may also enter navigable

waters in multiple locations, sometimes far from the

original source. These very phenomena occurred in

this case, with over 90% of the County of Maui’s

treated wastewater entering the ocean as “diffuse

flow” and the effluent’s nutrient content being

“significantly transformed” as it traveled through

groundwater. Ninth Circuit Excerpts of Record (“ER”)

553 ¶ 15, 556 ¶ 19.

These unique characteristics of mediated releases

will require EPA and states setting WQBELs to

choose from problematic alternatives. A permit could

set a WQBEL that applies—and requires

monitoring—at a source’s outfall. The permitting

agency would need to develop methods—likely various

forms of modeling—to account for how effluent

changes physically and chemically between the point

source and navigable waters.

This complicated

exercise would need to demonstrate that the permit

limit achieves the relevant water quality standard.

See 33 U.S.C. § 1311(b)(1)(C).

Alternatively, the permit could set a limit and

require monitoring at the points that effluent enters

navigable waters. The permitting agency would not

have to account for changes in effluent quality, but

permittees would face two problems. First, the

permittee may not be able to locate and access every

location where it would need to monitor for

compliance due to nonpoint source pollution’s diffuse

nature. Second, the permitted facility may have

trouble complying with its permit limit because it

cannot control changes to its effluent quality between

the outfall and entry into surface water. EPA

recognized this latter problem over 40 years ago,

concluding that NPDES permits were ill-suited to

regulate releases conveyed as diffuse runoff because a

point source’s owner “has no control over the quantity

of the flow or the nature and amounts of the pollutants

picked up by the runoff.” Costle, 568 F.2d at 1377.

III.

Requiring NPDES Permits for Mediated

Releases Will Burden EnvironmentallyBeneficial Water Management Practices.

Affirming the decision below risks foisting the

regulatory burdens and uncertainty outlined above on

amici’s innovative and beneficial infrastructure and

practices. Utilities across the country have deployed

green infrastructure (“GI”), water reuse, and

groundwater recharge programs to address water

pollution and resource scarcity. These approaches

have demonstrated benefits that have led to the

creation of government programs encouraging their

use. Recognizing these benefits and consistent with

these mandates, amici have made substantial

investments in GI, water reuse, and groundwater

recharge systems.

These valuable practices have the potential to

create mediated releases that would require NPDES

permits under the Ninth Circuit’s holding. Public

utilities would encounter the range of difficulties

outlined in the preceding section both in operating

existing facilities and in planning for the development

of new ones. The resulting costs and complications

would create disincentives for continued investment

in these environmentally beneficial water practices.

A. Green Infrastructure, Water Reuse, and

Groundwater

Recharge

Provide

Environmentally Sound Solutions to

Water Management Challenges.

1. Green

Infrastructure

Offers

Beneficial Alternative To Traditional

Stormwater Management.

GI has emerged as an innovative and widely-used

approach for managing and treating stormwater.

Unlike traditional “gray infrastructure” (i.e., pipes,

storage basins, and treatment systems), GI covers a

“range of measures that use plant or soil systems,

permeable pavement or other permeable surfaces or

substrates,” as well as reuse practices, intended to

reduce the flow of stormwater pollution to surface

waters and sewers. 33 U.S.C. § 1362(27). GI is

typically designed to capture and manage stormwater

near where it falls in structures, like rain gardens,

that allow stormwater to seep into and percolate

through the ground. See EPA, Tools, Strategies and

Lessons Learned from EPA Green Infrastructure

Technical Assistance Projects (2015) (“EPA Green

Infrastructure”), https://tinyurl.com/y4cs6yxu. GI is

implemented on scales ranging from large public

projects serving entire cities to small projects on

private property. Josh Foster et al., The Center for

Clear Air Policy, The Value of Green Infrastructure for

Urban

Climate

Adaptation

(2011),

https://tinyurl.com/yxgpapjz.

GI has proven beneficial in multiple respects. GI

improves water quality and conserves water by

slowing down and filtering stormwater before it

reaches waterways or sewers.

EPA Green

Infrastructure, at 3. Impeding stormwater’s flow

further reduces the discharge of untreated sewage to

surface waters from combined sewer overflows.10

Ibid. Constructing GI also benefits local economies by

creating jobs, reducing costs of storm sewer

infrastructure, and reducing the risk of property

damage caused by flooding. Ibid.

Recognizing these benefits,11 Congress earlier this

year enacted the Water Infrastructure Improvement

Act (“WIIA”), Pub. L. No. 115-436, 132 Stat. 5558,

5561 (2019). WIIA directed EPA, inter alia, to (a)

“promote the use of green infrastructure” in the

implementation of the CWA, (b) direct EPA’s regional

offices “to promote and integrate the use of green

infrastructure within [each] region,” and (c) promote

GI information-sharing through a website and

technical assistance programs. See id. § 5(b) (enacting

33 U.S.C. § 1377a).

WIIA builds on EPA’s prior efforts to integrate GI

into its regulatory and enforcement programs. Prior

to WIIA’s enactment, EPA promoted GI in the

10 Combined sewers collect and convey stormwater, domestic

sewage, and industrial wastewater in a single pipe. EPA,

Combined Sewer Overflows (“CSOs”) (Aug. 30, 2018),

https://tinyurl.com/y4qwad5n.

When wastewater volume

exceeds the capacity of the sewer or treatment plant, a discharge

of untreated wastewater to nearby waters—a “combined sewer

overflow”—results. Ibid.

11 Environmental activist groups across the country have

also recognized GI’s benefits and encouraged its adoption. See,

e.g.,

NRDC,

Encourage

Green

Infrastructure,

https://tinyurl.com/y2gky5ne (last visited Apr. 17, 2019);

Riverkeeper, Inc., Riverkeeper Supports NYC Green

Infrastructure (Oct. 4, 2010), https://tinyurl.com/y2dqlypp.

development of integrated plans to address storm and

wastewater management.12 EPA has also required

amici’s members to invest in GI through consent

decrees resolving CWA enforcement actions.13

State and local governments have also promoted

the adoption of GI. Massachusetts, for example,

provides assistance to public entities and regional

planning agencies that plan for the use of green

infrastructure. Mass. Gen. Laws ch. 21, § 31). At the

local level, New York City has mandated that GI be

incorporated into certain municipal capital projects

and has established a grant program to fund the

design and construction of GI. N.Y. City Charter

§ 224.1(l)(2)(iv); 15 R. City of N.Y. §§ 48-01 to -09.

Seattle has also mandated that certain single-family

residential developments employ GI like rain gardens

and infiltration trenches. Seattle, Wash. Mun. Code

§ 22.805.070.D.2.

2. Water Reuse Allows Municipalities to

Preserve and Extend Water Supplies.

Public water managers are increasingly treating

and reusing stormwater and wastewater. EPA, 2017

Potable Reuse Compendium at p. 1-1 (2017)

EPA, Achieving Water Quality Through Integrated

Municipal Stormwater and Wastewater Plans (Oct. 27, 2011),

https://tinyurl.com/y2wttllb; EPA, Using Green Infrastructure to

Protect Water Quality in Stormwater, CSO, Nonpoint Source and

other

Water

Programs

(Mar.

2007),

https://tinyurl.com/y4tkzfah.

13 See, e.g., Consent Decree ¶ 26, United States v. City of

Chattanooga, No. 1:12-cv-00245 (E.D. Tenn. Apr. 24, 2013); 1st

Am. to Consent Decree ¶¶ 25, 26, Anacostia Watershed Soc’y, v.

Dist. of Columbia Water & Sewer Auth., No. 1:00-CV-00183

(D.D.C. 2015); Consent Decree ¶ 18, United States v. LexingtonFayette Urban Cnty. Gov’t, No. 5:06-cv-386 (E.D. Ky. Jan. 3,

2011).

https://tinyurl.com/y3vu5cae.

Water reuse, also

known as water reclamation or recycling, involves the

beneficial use of treated storm- and wastewater for a

number of applications, including agriculture,

landscape irrigation, industrial uses, drinking water,

and ecosystem protection. Id. at i.; Nat’l Research

Council, Understanding Water Reuse: Potential for

Expanding the Nation’s Water Supply Through Reuse

Municipal

Wastewater

(2012),

https://tinyurl.com/y48rmdfo.

Water is most

prominently reused for agricultural and landscape

irrigation, including for residential areas, golf

courses, and recreational facilities. See EPA, 2012

Guidelines for Water Reuse at pp. 3-2, -4, -5, -7 (2012)

https://tinyurl.com/y5ejxdd9; Nat’l Research Council,

supra at 3.14

Several states have enacted laws to promote and

regulate water reuse to safely manage water supplies.

Arizona encourages renewable water supplies. See

Ariz. Rev. Stat. Ann. § 45-801.01. Its Department of

Environmental Quality oversees a permitting system

for the beneficial use of recycled water, as well as

water quality standards for water reuse. Ariz. Admin.

Code R18-9-A701-A707; id. at R18-11-301-309 and

Table A. California’s Recycled Water Policy requires

state and regional water control boards to use their

authority to encourage water reuse. Cal. Water Code

§ 13560(a). The Policy mandates an increase in the

use of recycled water in California “by 200,000 afy

[acre-feet per year] by 2020 and by an additional

300,000 afy by 2030” as part of a strategy to address

14 Respondents obtained from Petitioner a commitment to

invest $2.5 million in the reuse of treated wastewater that would

have otherwise been disposed of through underground injection

as part of a remedies settlement in this case. ER 106-07, ¶ 9.

the state’s water supply issues. Cal. State Water

Resources Control Bd., Policy for Water Quality

Control

for

Recycled

Water

(2013)

https://tinyurl.com/y4zl5njf. Florida has similarly

mandated increasing water reuse and has established

standards for the treatment of reclaimed water. See

Fla. Stat. Ann. § 403.086; Fla. Admin. Code r. 62610.00-.890; see also 30 Tex. Admin. Code § 210.1-.85

(establishing standards for the beneficial use of

reclaimed water).

3. Groundwater

Recharge

Important Tool for Managing Water

Supplies.

Groundwater recharge systems reuse water to

replenish and preserve usable groundwater resources.

These systems use a variety of methods to facilitate

the movement of water from the surface back into

aquifers. Herman Bouwer, Artificial recharge of

groundwater: hydrogeology and engineering, 10

Hydrogeol. J. 121, 122 (2002). Groundwater recharge

systems may rely on surface infiltration, in which

water is spread or placed in basins, furrows, or

ditches, and allowed to filter back into groundwater

through soil. EPA, 2012 Guidelines for Water Reuse,

supra at p. 2-16. Other systems may employ vertical

infiltration methods, which use trenches, shafts, and

wells to inject water directly back into the aquifer.

Bouwer, supra at 122. These systems can help offset

water shortages and stave off saltwater intrusion by

putting water back into aquifers. 2017 Potable Reuse

Compendium, supra at p. 3-11.

Local California agencies have successfully used

groundwater recharge facilities for decades. Los

Angeles County’s Forebay Groundwater Recharge

Project has, for over fifty years, been recharging

groundwater through the surface spreading and

direct injection of reused water. 2012 Guidelines for

Water Reuse, supra at D-42 to -45. The Orange

County

Groundwater

Replenishment

System

(“GWRS”), a joint venture between the Orange County

Water and Sanitation Districts, currently recycles

approximately 100 million gallons per day (“MGD”)

back into groundwater through injection wells and

percolation. Orange Cnty. Water Dist., GWRS –The

Process, https://tinyurl.com/y2ebhcfa (last accessed

April 11, 2019). Over the next four years, the Orange

County Water District plans to invest over $292

million to expand the GWRS’s groundwater recharge

capacity by an additional 30 MGD. Orange Cnty.

Water

Dist.,

GWRS

final

expansion,

https://tinyurl.com/y5v9y4q5 (last accessed May 2,

2019). Recognizing the benefits of these and other

projects, the State of California has enacted a policy

to provide financial assistance for groundwater

recharge. See Cal. Water Code § 12926.

California is not alone in encouraging these

systems. Florida requires that local comprehensive

plans identify the need for groundwater recharge

infrastructure associated with future land uses. Fla.

Stat. Ann. § 163.3177(6)(c). Similarly, Washington

requires local watershed plans to contain strategies,

including the use of aquifer recharge, to increase

water supplies. Wash. Stat. Ann. § 90.82.070(2).

Arizona has also declared a state policy to use

renewable water supplies, including through

underground storage, savings and replenishment, and

several cities have committed to balance annual

groundwater withdrawal with natural and artificial

recharge no later than 2025. Ariz. Rev. Stat. Ann. §§

45-801.01, 45-561(12), 45-562(A).

B. Affirming the Ninth Circuit Would Likely

Subject These Beneficial Practices to the

Complications

Associated

with

Permitting of Mediated Releases.

Requiring NPDES permits for mediated releases

would burden GI, as well as groundwater recharge

and water reuse infrastructure, with a new, ill-fitting

layer of regulatory obligations.

None of this

infrastructure directly discharges pollutants to

surface waters. Water captured and used in these

systems, however, has the potential to reach

navigable waters after being conveyed by

groundwater or as nonpoint source surface runoff.

For instance, both GI and groundwater recharge

systems deliver stormwater or reclaimed water to

groundwater—the former through percolation and the

latter through a variety of methods.15 This very case

illustrates how an aquifer may convey these waters—

and constituents in them—to surface waters.

Although the water used and managed in these

practices has been naturally or artificially treated, it

may nonetheless contain pollutants regulated by the

Act. The statute’s broad definition of “pollutant” has

15 Whether any particular component of GI or a groundwater

recharge system is sufficiently “confined” and “discrete” to be a

point source would need to be determined on a case-by-case basis.

See 33 U.S.C. § 1362(14). Some bioswales—vegetated or mulched

channels that retain and treat stormwater—might possess the

requisite characteristics to be classified as point sources. See

EPA, What is Green Infrastructure?, http://tinyurl.com/y6m37tb3

(last accessed April 11, 2019). By contrast, some groundwater

recharge basins may provide such diffuse transport of water that

they cannot be considered point sources. See Sierra Club v. Va.

Elec. & Power Co., 903 F.3d 403, 410 (4th Cir. 2018) (landfills

and settling ponds facilitating “diffuse seepage” of pollutants are

not point sources).

the potential to sweep in trace treatment byproducts

and even water to which no chemicals have been

added.16 Consequently, water managed or used in GI,

groundwater recharge, or water reuse has the

potential to result in mediated releases that may

require NPDES permits if the Court affirms the Ninth

Circuit.

Jurisdictions using or seeking to deploy these

practices would then confront the regulatory problems

described in Section II supra. Owners and operators

of existing and planned facilities would need to assess

potential pathways to surface waters to know whether

they require permits. Sponsors of GI, reuse, and

recharge projects that require NPDES permits may

then need to develop and furnish additional data for

use in modeling to establish water quality-based

permit conditions. Facilities may also face permit

conditions that pose substantial compliance obstacles.

See supra Section II.B.2.

These burdens and uncertainties could make GI,

reuse, and recharge projects more expensive and take

longer to implement. Utilities choosing to invest in

these practices would also need to account for the risk

of future CWA liability arising from mediated releases

that may only be discovered months or years after a

facility is completed. With only limited public funds

to spend on infrastructure, amici and their members

16 See 33 U.S.C. § 1362(6) (defining “pollutant”); N. Plains

Res. Council v. Fid. Expl. & Dev. Co., 325 F.3d 1155, 1161-62 (9th

Cir. 2003) (discharge of groundwater naturally contained

substances considered to be pollutants); EPA Region 10,

Authorization to Discharge Under the NPDES for Wastewater

Discharges from Idaho Drinking Water Treatment Facilities at

Part I.A (Aug. 16, 2016), https://tinyurl.com/yyzdz56k (general

permit for discharges of, among other things, potable water).

would have to incur greater costs to pursue these

environmentally beneficial projects—to the detriment

of spending on other public needs—or forego them

entirely.

IV.

State

and

Federal

Laws

Protect

Groundwater Resources More Effectively

Than NPDES Permitting.

Holding that the CWA does not require NPDES

permits for mediated releases will not leave

groundwater

resources

unprotected.

State

legislatures and regulators across the country have

crafted permitting regimes and regulations

specifically designed to protect groundwater quality.

Multiple federal environmental statutes also impose

obligations and set standards that protect

subterranean waters.

Even if the CWA’s text did not already foreclose

requiring NPDES permits for pollution conveyed by

groundwater (or other nonpoint sources), the Court

would find no regulatory “gap” crying out for a

departure from the CWA’s text. These state and

federal laws provide an intricate, comprehensive

scheme that protects groundwater quality. Requiring

NPDES permits would only interfere with these laws

by superimposing regulatory requirements designed

for surface waters.

A. States Enforce Robust

Protection Programs.

Groundwater

The CWA reserves to the states authority to

protect groundwater resources, with EPA providing

only support for state programs.

See Vill. of

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

962, 965 (7th Cir. 1994) (Congress intended, under the

CWA, to leave groundwater regulation to states).

During consideration of the CWA, both houses of

Congress specifically declined to set federal

groundwater pollution control standards. See S. Rep.

No. 92-414, at 73 (Senate Committee on Public Works

declined to adopt recommendations that the CWA

“provide[] authority to establish Federally approved

standards for groundwaters”); CWA Leg. History at

1491 (voting down a House amendment to require

permits for discharges to groundwater). Instead, the

Act charges states to develop programs to manage

nonpoint source pollution, which must include

practices to reduce pollutant loadings that “tak[e] into

account the impact of the practice on ground water

quality.” 33 U.S.C. § 1329(b)(1), (2)(A). Congress

further authorized EPA to provide grants to states for

groundwater protection activities. Id. § 1329(i).

States have fulfilled this role by implementing an

array

groundwater

protection

programs.

Washington, for example, has enacted groundwater

quality standards. Wash. Admin. Code § 173-200-100.

These standards include criteria that “establish

maximum contaminant concentrations for the

protection of a variety of beneficial uses,” including

drinking water supplies.

Id. at 173-200-040(1).

Washington prohibits “any activity that violates or

causes the violation of” these standards, and requires

that any permit issued under regulatory programs

administered by the state’s Department of Ecology

contain conditions needed to prevent violations the

groundwater quality standards. Id. at 173-200100(2), (4).

North Carolina has similarly created a

groundwater quality program that sets maximum

allowable concentrations of contaminants in

groundwater to protect human health and preserve

groundwater “for its intended best use.” See 15A N.C.

Admin. Code 02L .0202(a). These standards apply to

any activity that degrades water quality.17 Id. at 02L

.0101(a). The state further prohibits the issuance of

any state wastewater discharge permit that will

significantly degrade groundwater quality or cause a

violation of applicable groundwater quality

standards. Id. at 02L .0103(b). North Carolina has

also created a corrective action program requiring

responsible parties to remedy exceedances of

applicable standards. Id. at 02L .0106.18

B. A Multifaceted Federal Regulatory

Scheme Protects Groundwater.

Congress has supplemented states’ groundwater

protections by creating multiple regulatory programs

that protect groundwater from those activities and

facilities that are most likely to impact this resource.

Federal statutes governing waste disposal and

underground storage tanks dictate measures to

protect groundwater quality and remediate it in the

event of contamination. Federal drinking water laws

provide an additional layer of protection to ensure

that groundwater remains suitable for human

consumption. Congress has further provided a means

17 The regulations further make it a violation to engage in

“any activity which causes the concentration of any substance to

exceed” the applicable groundwater quality standard. 15A N.C.

Admin. Code 02L .0103(d).

18 Many states have also included in their groundwater

quality standards protections against releases to groundwater

adversely impacting surface water quality. E.g., Ariz. Admin.

Code R18-11-405.B (releases to groundwater may not “cause or

contribute to a violation of a water quality standard established

for a navigable water”); Fla. Admin. Code r. 62-520.-310(2) (any

release to groundwater “shall not impair the designated use of

contiguous surface waters”).

for cleaning up groundwater when contamination

occurs.

1. The Safe Drinking Water Act Protects

Groundwater for Potable Use.

The Safe Drinking Water Act (“SDWA”), 42 U.S.C.

§§ 300f-300j-27, underground injection control

(“UIC”) program provides protection for groundwater

that may serve as a source of public drinking water.

SDWA required EPA to establish regulations to

safeguard groundwater that supplies or may supply a

public water system from the underground injection

of fluids, particularly wastes.

See 42 U.S.C.

§ 300h(b)(1), (d)(2). These rules are designed to

protect water supplies from contaminants found at

levels that would (a) adversely affect human health or

(b) cause a violation of national primary drinking

Ibid.; see also 40 C.F.R.

water regulations.19

§ 144.12(a) (prohibiting the owner of any underground

injection activity from causing the violation of a

national primary drinking water regulation or

adversely affecting human health). States may take

on primary enforcement responsibility for the federal

UIC program if they enact regulations at least as

strict as EPA’s. See 42 U.S.C. § 300h-1(b).

Under the UIC program, an injection well may

operate only pursuant to a permit or a rule

authorizing its operation. Id. § 300h(b)(1)(A). The

program groups wells into six “classes” “based

principally on the potential for the type of injection to”

Among other things, national primary drinking water

regulations “specif[y] for [any] contaminant with an adverse

effect on human health either” a maximum level of that

contaminant that may be present in drinking water or a required

treatment technology. 42 U.S.C. § 300f(1); Am. Water Works

Ass’n v. EPA, 40 F.3d 1266, 1269 (D.C. Cir. 1994).

endanger underground drinking water.20 Thomas

Richichi, Safe Drinking Water Act, Environmental

Law Handbook 555 (23d ed. 2017); 40 C.F.R. § 146.5.

Based on the risks they each pose, each class of well

may be subject to a range of construction and

operational

standards

designed

prevent

groundwater contamination. See generally 40 C.F.R.

Part 146.

If groundwater contamination occurs, EPA

possesses broad authority to protect the public from

potentially unsafe drinking water. EPA may issue

orders and seek injunctions necessary to protect

public health if (1) a contaminant in an underground

source of drinking water “present[s] an imminent and

substantial endangerment” to human health, and (2)

state and local authorities have not already taken

action. 42 U.S.C. § 300i(a).

2. The Resource Conservation and

Recovery Act Protects Groundwater

from Waste Disposal Activities.

Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §§ 6901-6992k, regulations also

safeguard groundwater resources from waste disposal

and treatment operations. Under RCRA, owners and

operators of certain facilities that treat, store, or

dispose of hazardous waste must ensure that

groundwater concentrations of certain contaminants

do not exceed specified levels.21 40 C.F.R. §§ 264.92,

20 The County of Maui’s wells at issue here are regulated as

Class V wells, which are wells used to inject non-hazardous fluids

underground. See 40 C.F.R. §§ 144.80(e), 146.51(a).

21 RCRA also sets minimum standards for municipal solid

waste landfills that require, among other things, use of a landfill

liner or other design features that prevent landfill leachate from

causing groundwater to exceed specified contaminant levels. 40

264.93.

These facilities must also maintain

groundwater monitoring systems for assessing

groundwater contaminant levels. See id. §§ 264.91(a),

264.97-.99. If contaminant concentrations exceed

allowable levels, the owner or operator must

implement a corrective action program to achieve

compliance.22 Id. § 264.100.

Groundwater protections do not cease when a

hazardous waste facility closes. As part of the closure

process, a facility owner or operator must take steps,

spelled out in the facility’s closure plan, to prevent

hazardous constituents and leachate from reaching

ground and surface waters.

Id. §§ 264.111(b),

264.112(b)(5).

Even if these requirements do not apply, waste

handling and disposal activities that pose threats to

groundwater may be subject to civil actions to protect

this resource. RCRA authorizes both EPA and private

citizens to bring actions against responsible parties to

abate any “imminent and substantial endangerment

to health or the environment” resulting from the

“handling, storage, treatment, transportation, or

C.F.R. § 258.40(a). Owners and operators of these landfills must

also monitor groundwater and take corrective action to address

exceedances of specified contaminant levels in groundwater. 40

C.F.R. Part 258, Subpart E. EPA has also used RCRA to impose

groundwater monitoring and remediation requirements on

facilities managing coal combustion residuals.

40 C.F.R.

§§ 257.90-.98.

22 This corrective action requirement supplements RCRA’s

general requirement for any permitted treatment, storage, and

disposal facility to “institute corrective action as necessary to

protect human health and the environment for all releases of

hazardous wastes or constituents from any solid waste

management unit at the facility.” 40 C.F.R. § 264.101(a); 42

U.S.C. § 6924(u).

disposal of any solid waste or hazardous waste.” 42

U.S.C. § 6972(a)(1)(B) (citizen suits); id. § 6973(a)

(authorizing EPA). Groundwater contamination or

the threat of such contamination can be the basis for

one of these abatement actions. See, e.g., Interfaith

Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 26162 (3d Cir. 2005) (soil and groundwater contamination

among conditions establishing an “imminent and

substantial endangerment” claim).

3. The Federal Underground Storage

Tank Program Establishes Standards

for

Preventing

and

Remedying

Groundwater Contamination.

RCRA also addresses risks posed to groundwater

by underground storage tank systems (“USTs”)

containing oil and hazardous substances.23 42 U.S.C.

§§ 6991-6991m. EPA regulations require new UST

systems to meet performance standards designed to

prevent, among other things, structural failure and

corrosion that could lead to releases to groundwater.

40 C.F.R. § 280.20. EPA has also required owners and

operators to upgrade existing USTs to improve

structural integrity and prevent corrosion.

Id.

§ 280.21. EPA further requires the operation and

maintenance of corrosion protection systems, and

mandates that owners and operators of USTs inspect

and test certain equipment. 40 C.F.R. Part 280,

Subpart C.

UST owners and operators must also prevent and

remedy releases of oil or hazardous substances that

States may administer this program if they enact

regulations that are at least as stringent as EPA’s. See 42 U.S.C.

§ 6991c(b)(1). EPA has authorized twenty-nine states and

Puerto Rico to implement the program. 40 C.F.R. §§ 282.50-.102.

may threaten groundwater. EPA requires USTs to

have systems that can detect releases of stored

substances from tanks or associated piping. See 40

C.F.R. § 280.40(a). If a release occurs, an owner or

operator must first “prevent further migration of the

released substance into surrounding soils and

groundwater.” Id. § 280.62(a)(2). If evidence suggests

that the release may have reached groundwater, the

owner or operator must then investigate the release

site and surrounding area to ascertain the extent of

groundwater contamination. Id. § 280.65(a). If

necessary, the owner or operator will develop and

implement a corrective action plan to address the

contamination. Id. § 280.66(a).

4. EPA May Use the Superfund Program

to Require Groundwater Remediation.

The Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”),24 42

U.S.C. §§ 9601-9675, gives EPA another tool to

address threats to groundwater quality. CERCLA

confers on EPA “broad power to command government

agencies and private parties to clean up”

contamination caused by hazardous substances. Key

Tronic Corp. v. United States, 511 U.S. 809, 814

(1994).

This statute authorizes EPA to take

preventative or remedial actions whenever a

hazardous substance is “released or there is a

substantial threat of such a release into the

environment.”25 42 U.S.C. § 9604(a). CERCLA

CERCLA is commonly referred to as the “Superfund”

statute. EPA, Superfund: CERCLA Overview (June 4, 2018),

http://tinyurl.com/jzugaqk.

25 The statute confers authority on the President, which has

been delegated, in most instances, to the Administrator of EPA.

further authorizes the federal government to issue

orders or seek injunctive relief to address

contamination. See 42 U.S.C. § 9606(a). CERCLA’s

broad definition of the “environment” authorizes EPA

to take these actions to address groundwater

contamination. See id. § 9601(8)(B) (defining the

“environment” to include groundwater); Matter of Bell

Petroleum Servs., Inc., 3 F.3d 889, 892-93 (5th Cir.

1993) (describing EPA response to chromiumcontaminated groundwater under CERCLA).

EPA requires that contaminated site cleanups

address threats to groundwater quality. EPA expects

that remedial actions will “return usable ground

waters to their beneficial uses wherever practicable.”

40 C.F.R. § 300.430(a)(iii)(F). When such restoration

is not practicable, EPA demands that cleanup

measures

prevent

the

spread

groundwater

contamination, including its migration into surface

water. Ibid.; EPA, Summary of Key Existing CERCLA

Policies for Groundwater Restoration 3 (June 26,

2009), https://www.tinyurl.com/yysynmff.

EPA

further strives for remedial actions to clean up

groundwater that is a current or potential source of

drinking water so that it attains federal drinking

water standards under SDWA.

See 40 C.F.R.

§ 300.430(e)(2)(i)(B), (C). These CERCLA cleanup

requirements provide a backstop for the robust body

of state and federal law protecting groundwater.

Superfund Implementation, Exec. Order No. 12580, §§ 2(g),

4(d)(1), 52 Fed. Reg. 2923 (Jan. 23, 1987).

CONCLUSION

The distinction between point and nonpoint source

pollution is critical to maintaining the CWA’s

structure and the proper functioning of the NPDES

permitting program. Requiring NPDES permits for

mediated releases—releases from discrete sources

that are conveyed by nonpoint sources—is

inconsistent with the Act’s language and would

eviscerate this critical distinction.

Such a

requirement would also create disincentives for public

investment in cutting-edge water management

practices needed to address the water supply and

quality problems of the 21st century. The Court

should adhere to the limitations that Congress

imposed on the scope of the NPDES program and

reverse the Ninth Circuit.

Respectfully submitted,

NATIONAL ASSOCIATION OF

CLEAN WATER AGENCIES

Amanda J. Waters

General Counsel

1130 Connecticut Ave.

N.W.

Suite 1050

Washington, DC 20036

(201) 833-2672

BEVERIDGE & DIAMOND, P.C.

Richard S. Davis

Counsel of Record

Andrew C. Silton

1350 I Street N.W.

Suite 700

Washington, DC 20005

(202) 789-6000

rdavis@bdlaw.com

Timothy M. Sullivan

201 N. Charles St.

Suite 2210

Baltimore, MD 21201

(410) 230-1300

Counsel for Amicus Curiae

National Association of Clean Water Agencies

ADDITIONAL SIGNATURES

CITY OF NEW YORK

Zachary W. Carter

Corporation Counsel of

the City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

Counsel for Amicus

Curiae City of New York

METRO WASTEWATER

RECLAMATION DISTRICT

Emily Jackson

General Counsel

6450 York Street

Denver, CO 80229

(303) 286-3416

Counsel for Amicus

Curiae Metro Wastewater

Reclamation District

CITY AND COUNTY OF SAN

FRANCISCO

Dennis J. Herrera

City Attorney

John Roddy

Deputy City Attorney

1390 Market Street

Suite 700

San Francisco, CA 94102

Counsel for Amicus

Curiae City and County

of San Francisco

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