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,

v.

Petitioner,

HAWAI’I WILDLIFE FUND; SIERRA CLUB – MAUI

GROUP; SURFRIDER FOUNDATION;

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

____________________

On Writ of Certiorari to the

United States Court of Appeals for

the Ninth Circuit

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

____________________

DAMIEN M. SCHIFF

MOLLIE R. WILLIAMS

Pacific Legal Foundation

930 G Street

Sacramento, CA 95814

Telephone: (916) 419-7111

dschiff@pacificlegal.org

mwilliams@pacificlegal.org

GLENN E. ROPER

Counsel of Record

Pacific Legal Foundation

1745 Shea Ctr. Dr., Suite 400

Highlands Ranch, CO 80129

Telephone: (916) 419-7111

geroper@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 5

I.

The Ninth and Fourth Circuits’ Decisions

Misinterpret the Rapanos Plurality

Opinion and Undermine Cooperative

Federalism......................................................... 5

A. The Lower Courts Misread and Misapplied

the Rapanos Plurality Opinion. .................... 6

1. The Rapanos Plurality Sought to

Narrow the Agencies’ Overbroad

Application of the Clean Water Act. .......... 7

2. The Rapanos Plurality Opinion

Does Not Support Federal Regulation

of Groundwater. .......................................... 9

B. Extending the Clean Water Act to

Groundwater Undermines the

Federal-State Balance Established

by Congress. ................................................. 13

II. The Ninth and Fourth Circuits’ Expansion

of the Clean Water Act Undermines the

Rights of Landowners. .................................... 16

A. Regulating Groundwater Under

the Act Violates Landowners’ Due

Process Rights. ............................................. 17

ii

B. The Clean Water Act’s Regulation

of Groundwater Pollution Places

Unacceptable Burdens on Landowners. ..... 18

C. Overzealous Enforcement Makes

the Statute’s Defects Intolerable................. 22

CONCLUSION.......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ............. 13

Dole v. United Steelworkers of Am.,

494 U.S. 26 (1990) ................................................... 7

Johnson v. United States,

135 S. Ct. 2551 (2015) ........................................... 17

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

905 F.3d 925 (6th Cir. 2018) ....................... 9–10, 12

Nat’l Ass’n of Mfrs. v. Dep’t of Defense,

138 S. Ct. 617 (2018) ......................................... 1, 17

Nat’l Wildlife Fed’n v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) ............................... 15

Rapanos v. United States,

547 U.S. 715 (2006) ................... 1, 4, 6–9, 12–17, 21

Robertson v. United States, No. 18-609,

2019 WL 1590229 (U.S. Apr. 15, 2019) ............ 1, 18

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

Tribe of Indians, 541 U.S. 95 (2004)..................... 11

Sackett v. EPA, 566 U.S. 120 (2012) ................ 1, 5, 17

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

421 F.3d 1133 (10th Cir. 2005) ............................. 11

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ........................................... 4, 13

Tin Cup, LLC v. U.S. Army Corps of Eng’rs,

904 F.3d 1068 (9th Cir. 2018), cert. denied,

2019 WL 1886046 (Apr. 29, 2019) ........................ 18

iv

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

136 S. Ct. 1807 (2016) ............. 1, 4–5, 16–17, 21, 24

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) ................................................. 8

United States v. Robertson,

875 F.3d 1281 (9th Cir. 2017) ............................... 18

United States v. Velsicol Chemical Corp.,

438 F. Supp. 945 (W.D. Tenn. 1976) ............... 10–11

Upstate Forever v. Kinder Morgan Energy

Partners, L.P.,

887 F.3d 637 (4th Cir. 2018) ............... 2–3, 6, 10, 12

Statutes

33 U.S.C. § 1251(a) ................................................... 15

33 U.S.C. § 1251(b) ............................................... 4, 13

33 U.S.C. § 1319(c) .................................................... 17

33 U.S.C. § 1362(12)(A) .............................................. 6

33 U.S.C. § 1362(14) ........................................... 11–12

33 U.S.C. § 1365(a) ................................................... 22

33 U.S.C. § 1365(d) ................................................... 23

42 U.S.C. § 300f, et seq.............................................. 14

42 U.S.C. § 6901, et seq. ............................................ 14

42 U.S.C. § 9601, et seq. ............................................ 15

Regulation

40 C.F.R. § 19.4 Table 1 (2011) ................................ 17

v

Rules

Sup. Ct. R. 37.3(a) ....................................................... 1

Sup. Ct. R. 37.6 ........................................................... 1

Other Authorities

Bissell, Jennifer, Donations to charitable groups

surge after Trump victory, Financial Times,

Nov. 11, 2016, https://on.ft.com/2gtNztB ............. 22

California Coastkeeper Alliance, A Solution to

California Water Pollution: The benefits of

citizen lawsuits and their value for clean water

enforcement in California, https://bit.ly/2vIrLnw

(last visited May 9, 2019) ...................................... 22

Craig, Robin Kundis & Roberts, Anna M.,

When Will Governments Regulate Nonpoint

Source Pollution? A Comparative Perspective,

42 B.C. Envtl. Aff. L. Rev. 1 (2015) ...................... 14

EPA, Basic Information about Nonpoint Source

Pollution, https://bit.ly/2QsWmOg

(last visited May 9, 2019) ...................................... 21

EPA, Lahaina Groundwater Tracer Study –

Lahaina, Maui, Hawaii, Final Report

(June 2013), https://bit.ly/2PNakef....................... 10

EPA, Report on the Environment: Agricultural

Fertilizer, https://bit.ly/2LoV7BA

(last visited May 9, 2019) ...................................... 21

EPA, Septic Systems Overview,

https://bit.ly/2hg6AUU

(last visited May 9, 2019) ...................................... 20

vi

Groundwater Foundation, Groundwater

Contamination, https://bit.ly/2qafuVL

(last visited May 9, 2019) ...................................... 20

Hayman, James W., Comment, Regulating PointSource Discharges to Groundwater Hydrologically

Connected to Navigable Waters: An Unresolved

Question of Environmental Protection Agency

Authority Under the Clean Water Act,

5 Barry L. Rev. 95 (2005) .......................... 19–20, 23

Houck, Oliver A., Standing on the Wrong Foot:

A Case for Equal Protection,

58 Syracuse L. Rev. 1 (2007) ................................. 22

Houska, Catherine, Stainless Steel Helps

Prevent Deicing Salt Corrosion, International

Molybdenum Association, https://bit.ly/2H2B8Vg

(last visited May 9, 2019) ...................................... 21

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. 16,810 (Apr. 23, 2019) ........ 2–3, 14–15

Kvien, Allison L., 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

Ng, Lawrence, Note, A DRASTIC Approach to

Controlling Groundwater Pollution,

98 Yale L.J. 773 (1989).......................................... 14

vii

Pet. for Cert., Robertson v. United States,

No. 18-609, 2018 WL 5978094 (Nov. 7, 2018) ...... 18

Robertson, Marc, Environmental Ambulance

Chasing: DOJ Urges Court to Scrutinize Clean

Water Citizen-Suit Settlements, Forbes,

June 26, 2018, https://bit.ly/2Jepubh ................... 23

Schiff, Damien, Keep the Clean Water Act

Cooperatively Federal—Or, Why the Clean Water

Act Does Not Directly Regulate Groundwater

Pollution, 42 Wm. & Mary Envtl. L. &

Pol’y Rev. 447 (2018) ............................................. 19

Wood, Jonathan, Property & Environ. Research

Center, Environmental Crusaders or

Ambulance Chasers?, May 31, 2018,

https://bit.ly/2Y2Gup5 ........................................... 23

Wood, Jonathan, Property & Environ. Research

Center, Environmental Markets Work Better

than Indecipherable Regulations, Apr. 2, 2018,

https://bit.ly/2IXY7CY ........................................... 20

1

INTEREST OF AMICUS CURIAE1

Founded in 1973, Pacific Legal Foundation (PLF)

is the nation’s oldest and largest nonprofit legal

foundation that seeks to protect private property

rights and related liberties in courts throughout the

country. In pursuing this mission, PLF and its

attorneys have frequently represented litigants in

Clean Water Act (CWA) cases, including before this

Court. See, e.g., Robertson v. United States, No. 18609, 2019 WL 1590229 (U.S. Apr. 15, 2019) (petition

granted, judgment vacated, and case remanded); Nat’l

Ass’n of Mfrs. v. Dep’t of Defense, 138 S. Ct. 617 (2018);

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

Ct. 1807 (2016); Sackett v. EPA, 566 U.S. 120 (2012).

PLF supports and advocates for a balanced approach

to environmental law, one that avoids the

unreasonable elevation of environmental concerns

over other important values.

Most relevant to the case at hand, PLF

represented the petitioner in Rapanos v. United

States, 547 U.S. 715 (2006), which the Ninth Circuit

below, Pet. App. 21–25, and Respondents, Resp. Br. in

Opp. 13–15, 25–26, have cited in support of their

argument that the CWA should be read to regulate

pollution that reaches navigable waters via

groundwater. PLF opposes this misguided and

1

Pursuant to this Court’s Rule 37.3(a), all parties have

consented to the filing of this brief. Pursuant to Rule 37.6,

Amicus Curiae affirms that no counsel for any party authored

this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person other than Amicus Curiae, its

members, or its counsel made a monetary contribution to the

brief’s preparation or submission.

2

property-threatening interpretation because it

misreads Justice Scalia’s plurality opinion in

Rapanos, including by contradicting that opinion’s

overarching theme, which was to limit—not expand—

the CWA’s reach. That interpretation also

undermines the principle of cooperative federalism

that is at the core of the CWA.

PLF frequently represents landowners that are

subject to the CWA and who would be substantially

harmed if this Court were to adopt the Ninth Circuit’s

interpretation. CWA compliance costs are already

extraordinarily high, and PLF opposes unreasonable

interpretations of the CWA that would increase those

costs.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court has never interpreted the Clean Water

Act to regulate groundwater pollution. Yet both the

district court and Ninth Circuit below, and the Fourth

Circuit in Upstate Forever v. Kinder Morgan Energy

Partners, L.P., 887 F.3d 637 (4th Cir. 2018),2

concluded that a party can violate the CWA by

discharging pollutants, not into navigable water, but

into groundwater. The EPA recently published an

Interpretive Statement specifically rejecting these

lower court decisions. 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. 16,810, 16,812 (Apr. 23, 2019). Instead, the

Kinder Morgan is the subject of a pending petition for

certiorari (No. 18-268), which is apparently being held awaiting

the Court’s decision in this case.

2

3

Interpretive Statement concludes, “the [CWA] is best

read as excluding all releases of pollutants from a

point source to groundwater from NPDES program

coverage and liability under … the CWA, regardless

of a hydrologic connection between the groundwater

and a jurisdictional surface water.” Id. at 16,811.

In coming to the opposite conclusion, the

aforementioned lower courts applied different and

inconsistent tests. The district court below favored a

broad “conduit theory,” whereby a discharge into

groundwater triggers liability if “the groundwater is a

conduit through which pollutants are reaching

navigable-in-fact water.” Pet. App. 59. The Ninth

Circuit declined to follow that reasoning and instead

applied a “functional equivalence” test, under which

CWA liability attaches for a discharge into

groundwater if “the pollutants are fairly traceable

from the point source to a navigable water such that

the discharge is the functional equivalent of a

discharge into the navigable water.” Pet. App. 24. The

Fourth Circuit has applied yet a third standard, a

“direct hydrological connection” test, under which “a

plaintiff must allege a direct hydrological connection

between ground water and navigable waters in order

to state a claim.” Kinder Morgan, 887 F.3d at 651.3

None of these tests are proper. For starters, all

three are based on an unwarranted reading of Justice

In Kinder Morgan, the Fourth Circuit concluded that there

was “no functional difference” between the Ninth Circuit’s test

and the direct hydrological connection test—which the Fourth

Circuit derived from an earlier EPA position. See 887 F.3d at 651

& n.12. Below, the Ninth Circuit

criticized the direct

hydrological connection test as “read[ing] … words into the CWA

… that are not there.” Pet. App. 24 n.3.

3

4

Scalia’s Rapanos plurality opinion. Far from

supporting these lower courts’ rulings, that opinion

neither addresses whether groundwater pollution is

subject to CWA regulation nor justifies extending the

CWA to discharges into groundwater. What that

opinion does certainly address are the problems posed

by an over-expansive reading of the CWA and the

critical need to ensure that the statute not be used as

a device to justify federal regulation of all water

pollution.

All three lower court tests also undermine

Congress’ intended federal-state balance by

improperly expanding federal CWA jurisdiction. See

33 U.S.C. § 1251(b) (“It is the policy of the Congress to

recognize, preserve, and protect the primary

responsibilities and rights of States to prevent,

reduce, and eliminate pollution ….”). Such substantial

expansion is particularly problematic because, as this

Court has recognized, the EPA and Army Corps (the

“Agencies”) have a history of interpreting the Act more

broadly than Congress intended. See Rapanos, 547

U.S. at 739 (plurality op.); id. at 780–82 (Kennedy, J.,

concurring in the judgment); see also Hawkes Co., 136

S. Ct. at 1817 (Kennedy, J., concurring); Solid Waste

Agency of N. Cook County v. U.S. Army Corps of Eng’rs

(SWANCC), 531 U.S. 159, 172–74 (2001).

What is more, the lower courts’ continuing

expansion of the CWA augurs intolerable burdens for

landowners throughout the country. Even without

this interpretive expansion, the burdens of federal

CWA jurisdiction and the risk of CWA liability are

tremendous. See, e.g., Hawkes Co., 136 S. Ct. at 1816

(Kennedy, J., concurring) (“[T]he reach and systemic

consequences of the Clean Water Act remain a cause

5

for concern.”); Sackett, 566 U.S. at 132 (Alito, J.,

concurring) (“[T]he combination of the uncertain

reach of the Clean Water Act and the draconian

penalties imposed for the sort of violations alleged in

this case still leaves most property owners with little

practical alternative but to dance to the EPA’s tune.”).

The decision below and the Fourth Circuit’s ruling in

Kinder Morgan threaten to add to those burdens by,

among other things, saddling any landowner who

owns a septic tank, or who otherwise may be

responsible for the addition of pollutants to a

groundwater basin, with potential CWA liability.

For these reasons, the Court should put a stop to

the improper expansion of an already bloated statute

by reversing the decision below.

ARGUMENT

I.

The Ninth and Fourth Circuits’ Decisions

Misinterpret the Rapanos Plurality Opinion

and Undermine Cooperative Federalism.

In holding that discharges into groundwater can

in some instances be directly regulated under the

CWA, the Ninth and Fourth Circuits went well beyond

any prior decision of this Court. Their attempts to

greatly expand the reach of federal water quality

regulation suffer from two key legal flaws. First, they

misread the plurality opinion in Rapanos to support

an expansion of federal CWA jurisdiction to

groundwater. Second, they give insufficient weight to

Congress’ clear intent to prioritize a federal-state

balance in regulating water pollution.

6

A. The Lower Courts Misread and

Misapplied the Rapanos Plurality

Opinion.

To support their novel application of CWA liability

for “indirect discharges” into groundwater, the district

court and the Ninth Circuit in this case, and the

Fourth Circuit in Kinder Morgan, each cited Justice

Scalia’s plurality opinion in Rapanos. See Pet. App.

59–60; id. at 21–25; Kinder Morgan, 887 F.3d at 649–

50. Specifically, the lower courts relied on two of the

plurality’s statements. First, the plurality observed

that the CWA’s prohibition on pollution uses the term

“to” instead of “directly to”; that is, it “does not forbid

the ‘addition of any pollutant directly to navigable

waters from any point source,’ but rather the ‘addition

of any pollutant to navigable waters.’” 547 U.S. at 743

(quoting 33 U.S.C. § 1362(12)(A)). Second, the

plurality noted that “lower courts have held that the

discharge into intermittent channels of any pollutant

that naturally washes downstream likely violates [the

CWA], even if the pollutants discharged from a point

source do not emit directly into covered waters, but

pass through conveyances in between.” Id. (emphasis

and quotations omitted).

These statements fall far short of justifying

federal regulation of groundwater pollution. As the

Ninth Circuit recognized, the plurality’s statements

were not joined by a majority of this Court. See Pet.

App. 23 (stating that “we … consider Justice Scalia’s

plurality opinion only for its persuasive value”). But

none of the lower courts acknowledged that the quoted

statements also did not purport to be “holdings” of the

plurality. To the contrary, they were plainly dicta:

Justice Scalia stated that “we do not decide this

7

issue”—the “issue” being whether indirect discharge

is a proper basis for CWA liability. 547 U.S. at 743.

The lower courts have misconstrued the Rapanos

plurality even apart from its limited precedential

value. Rather than supporting CWA liability for

discharges into groundwater, the above-quoted

statements were nothing more than a rhetorical

response to the charge made by the Rapanos

concurring and the dissenting opinions that the

plurality’s reading of the CWA would necessarily

result in a dramatic reduction of the ability to regulate

surface water pollution. See id. at 742–44.4

A fuller understanding of the lower courts’ error

requires a more detailed discussion of Rapanos, which

follows.

1.

The Rapanos Plurality Sought to

Narrow the Agencies’ Overbroad

Application of the Clean Water Act.

Rapanos did not address the question presented

in this case: whether an unpermitted discharge into

groundwater of pollutants that eventually end up in

navigable water is a proper basis for CWA liability.

Rather, the primary question in Rapanos was whether

the Agencies had exceeded their jurisdiction in

attempting to regulate intermittent or ephemeral

Additionally, the lower courts’ inordinate focus on a single

statutory term (CWA’s use of “to” instead of “directly to”) violates

the principle that this Court is “not guided by a single sentence

or member of a sentence, but look[s] to the provisions of the whole

law, and to its object and policy.” Dole v. United Steelworkers of

Am., 494 U.S. 26, 35 (1990) (quotation marks and citations

omitted). Here, the “whole law” does not support the decisions of

the Ninth and Fourth Circuits.

4

8

tributaries and their adjacent wetlands. See 547 U.S.

at 757; id. at 780–82 (Kennedy, J., concurring in the

judgment). Specifically, the issue was whether certain

wetlands qualified as “waters of the United States”

solely because they had a “hydrologic connection” to

navigable waters. Id. at 729–30, 740.

In considering that question, the plurality first

noted the historical context of the CWA, in which

Congress granted the Agencies jurisdiction over

traditional navigable waters. Id. at 723. Over time,

the Agencies expanded their claim of jurisdiction to

include waters that are not traditionally navigable, so

that, by the time of Rapanos, the Agencies purported

to exercise CWA jurisdiction over an expansive

variety of surface waters and wetlands, including

intermittent and ephemeral waters. Id. at 724. Faced

with this broad assertion of authority, the Court had

to decide just how far the CWA extended beyond

traditional navigable waters.

The answer, for the plurality, was “not far.” It

recognized that United States v. Riverside Bayview

Homes, Inc., had concluded that wetlands that were

not themselves navigable but “‘actually abut[ted] on’

traditional navigable waters” could be regulated

under the CWA. Id. at 725 (quoting 474 U.S. 121, 135

(1985)). However, Riverside Bayview “nowhere …

suggest[ed] that ‘the waters of the United States’

should be expanded to include … entities other than

‘hydrographic

features

more

conventionally

identifiable as “waters.”’” Id. at 735 (quoting 474 U.S.

at 131). Thus, in the Rapanos plurality’s view, the

“only plausible interpretation” of the CWA is that the

term “‘the waters of the United States’ include[s] only

9

relatively permanent, standing or flowing bodies of

water.” Id. at 732, 739.

In sum, the goal of the Rapanos plurality and the

thrust of its opinion was to narrow and constrain the

Agencies’ ill-conceived attempt to expand federal

jurisdiction under the CWA. See id. at 729–32.

2.

The Rapanos Plurality Opinion Does

Not Support Federal Regulation of

Groundwater.

The dissenting and concurring opinions in

Rapanos took issue with the plurality’s constraint on

CWA jurisdiction, arguing that its more narrow

interpretation would result in a significant reduction

of federal control of surface water pollution. See id. at

769–70 (Kennedy, J., concurring in the judgment); id.

at 800 (Stevens, J., dissenting). The plurality

responded to these concerns by referencing a series of

lower court decisions that had imposed CWA liability

for pollutant discharges that passed through several

point sources and that “naturally” reached regulated

waters even if not “directly” discharged into those

waters. Id. at 742–45. As noted above, the plurality

declined to decide whether those lower court opinions

were correct. Id. at 743.

In context, the plurality was simply seeking to

justify its narrower construction of “waters of the

United States” by showing that it was unlikely to

diminish protections for surface waters. Id. The

plurality was not trying to expand the scope of the Act,

which is exactly what the Ninth and Fourth Circuits

now seek to use the plurality opinion to achieve. See

Ky. Waterways All. v. Ky. Utils. Co., 905 F.3d 925, 936

(6th Cir. 2018) (“[T]he [Rapanos plurality] has been

10

taken out of context in an effort to expand the scope of

the CWA well beyond what the Rapanos Court

envisioned.”). Specifically, in this case the Ninth

Circuit held that Rapanos supports CWA liability for

Maui County’s discharge of treated wastewater into

groundwater that eventually conveys some pollutants

to the Pacific Ocean.5 Pet. App. 7–8. Likewise, the

Fourth Circuit in Kinder Morgan held that the

Rapanos plurality opinion supports CWA liability for

gasoline that leaked from a cracked underground

pipeline and eventually seeped into nearby creeks.

887 F.3d at 643–44. Both interpretations badly

misconstrue the Rapanos plurality opinion.

Indeed, as the plurality’s full discussion and

citations make clear, the only question it considered

was whether liability could attach where a pollutant

passed into navigable water through a series of point

sources, not whether liability could attach in the

absence of a continuous chain of point sources.

Neither of the two cases cited by the plurality

indicates otherwise. The first case, United States v.

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

(W.D. Tenn. 1976), involved a discharge of pollutants

into a sewer system that directly connected to the

Mississippi River. The defendant argued that,

because it did not own the sewer system, it could not

be held liable under the CWA. Id. However, the court

concluded that a “discharge through conveyances

owned by another party does not remove [the]

A little more than half (64%) of the treated wastewater arrives

at the ocean, carried by groundwater that seeps at a snail’s pace,

averaging about two meters per day. See Pet. App. 24; EPA,

Lahaina Groundwater Tracer Study – Lahaina, Maui, Hawaii,

Final Report at ES-28 (June 2013), https://bit.ly/2PNakef.

5

11

defendant’s actions from the scope of [the CWA].” Id.

In other words, discharge from one point source into

another point source that leads directly into a

navigable water is sufficient for liability under the

Act, regardless of whether the polluting party owns

both point sources. Id.; see also S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 105

(2004) (“[A] point source need not be the original

source of the pollutant; it need only convey the

pollutant to ‘navigable waters’ ….”).

In the second cited case, Sierra Club v. El Paso

Gold Mines, Inc., 421 F.3d 1133 (10th Cir. 2005), the

owner of a gold mine was held liable when snowmelt

washed zinc and manganese down a mine shaft and

into a miles-long manmade tunnel that eventually

drained into the Arkansas River. Id. at 1136. The

court held that the mine shaft was a point source and

that federal CWA jurisdiction was established

because pollutants that were discharged into the shaft

“flow[ ] through other conveyances [i.e., the manmade

tunnel] to navigable waters.” Id. at 1141. Because

a tunnel is itself a point source, see 33 U.S.C.

§ 1362(14), at most the Rapanos plurality

was entertaining, through its citation to Sierra

Club, a point-source-to-point-source-to-regulatedwater theory of liability. There is a significant

difference between that theory and the one adopted by

the lower courts here.6

Sierra Club in particular does not support Respondents’

position in this case, since the Tenth Circuit contrasted the pointsource pollution in that case with “[g]roundwater seepage[,

which] … would be nonpoint source pollution, [and] which is not

subject to NPDES permitting.” 421 F.3d at 1140 n.4.

6

12

Given its limited reach, one obvious problem with

the Ninth and Fourth Circuits’ reliance on the

Rapanos plurality is that groundwater is not a point

source. See 33 U.S.C. § 1362(14); Ky. Waterways, 905

F.3d at 933; see also 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, 986 (2015) (“Contrasting even the most ‘confined

and discrete’ groundwater with traditional point

sources such as pipes makes the contention that

groundwater can be a point source look like a rather

weak one.”).7

But as discussed above, the bigger problem is that

their interpretation misses the forest for the trees.

The whole focus of the Rapanos plurality opinion was

to prevent the continued and unjustified expansion of

the CWA. See 547 U.S. at 729–32. Yet such expansion

is exactly what the lower courts’ employment of the

Rapanos plurality achieves. This Court should reverse

the Ninth and Fourth Circuits to keep the lower courts

Relatedly, it is factually incorrect to say that dissolved

pollutants travel or pass “through” groundwater. See, e.g., Pet.

App. 17 (stating that discharged effluent “travels through

groundwater before entering the Pacific Ocean”); Kinder Morgan,

887 F.3d at 641 (stating that pollutants “pass through ground

water to reach navigable waters”). Dissolved pollutants are held

in solution, and no more “travel through” groundwater than salt

“travels through” seawater. This scientific fact only emphasizes

the legal reality that groundwater is not itself a “discernable,

confined and discrete conveyance … from which pollutants are or

may be discharged.” 33 U.S.C. § 1362(14).

7

13

faithful to the CWA’s authentic and relatively modest

scope.

B. Extending the Clean Water Act to

Groundwater Undermines the FederalState Balance Established by Congress.

In addition to misapplying Rapanos, the lower

court decisions are problematic because they

undermine the careful federal-state balance that

Congress struck in enacting the CWA. The CWA’s

legislative declaration emphasizes a policy of

cooperative federalism with respect to water pollution

regulation:

It is the policy of the Congress to recognize,

preserve,

and

protect

the

primary

responsibilities and rights of States to

prevent,

reduce,

and

eliminate

pollution[ and] to plan the development and

use (including restoration, preservation, and

enhancement) of land and water resources ….

33 U.S.C. § 1251(b). In furtherance of that policy, the

CWA establishes “a partnership between the States

and the Federal Government.” Arkansas v. Oklahoma,

503 U.S. 91, 101 (1992). As this Court has recognized,

that federal-state partnership is undermined by any

interpretation of the CWA that would “result in a

significant impingement of the States’ traditional and

primary power over land and water use.” SWANCC,

531 U.S. at 161; see also Rapanos, 547 U.S. at 737.

Instead,

Congress’

concern

for

the

“responsibilities and rights of States” led it to

affirmatively restrict federal regulation under the

CWA to point source pollution, thereby excluding

nonpoint source pollution. See Rapanos, 547 U.S. at

14

803 (Stevens, J., dissenting) (referring to the States’

“nearly exclusive responsibility for containing

pollution from nonpoint sources”); see also Br. of Pet’r

23–26 (discussing the point/nonpoint source

distinction). And Congress made that deliberate

choice despite its knowledge of the effect that

nonpoint source pollution can have on water quality.

See Robin Kundis Craig & Anna M. Roberts, When

Will Governments Regulate Nonpoint Source

Pollution? A Comparative Perspective, 42 B.C. Envtl.

Aff. L. Rev. 1, 2 (2015) (“[Although] nonpoint source

pollution is well-recognized to be one of the last major

barriers to achieving state and national water quality

goals[,] … Congress made a conscious decision to leave

regulation of nonpoint source pollution to the states

....”). Because groundwater is not a point source,

Congress intended it to fall outside the ambit of

federal regulation under the CWA. See also Lawrence

Ng, Note, A DRASTIC Approach to Controlling

Groundwater Pollution, 98 Yale L.J. 773, 784 (1989)

(noting “the traditional deference of the federal

government to the states in the area of groundwater

regulation”).

Of course, Congress’ choice does not mean that

groundwater pollution is unregulated; to the contrary,

discharges to and the quality of groundwater are

regulated both by other federal laws and by state law.

The EPA’s recent Interpretive Statement details the

federal and state regulations that may apply to

groundwater, see 84 Fed. Reg. at 16,824–26

(referencing both state regulations and three relevant

federal statutes: 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.; and the

Comprehensive

Environmental

Response,

15

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

et seq.), as well as the many indications of

Congressional intent to leave primary regulation of

groundwater pollution to the States, see 84 Fed. Reg.

at 16,812–17 (reviewing legislative history and other

evidence).

The Interpretive Statement also makes clear that

approaches such as those adopted by the Ninth and

Fourth Circuits “upset[ ] the careful balance that

Congress struck between the states and the federal

government by pushing a category of pollutant

discharges from the state-regulated paradigm to the

point source, federally controlled, program.” Id. at

16,819. Upsetting that balance in the context of

discharges into groundwater is particularly

problematic because “[t]he [CWA] and its legislative

history indicate that Congress intended for all

discharges to groundwater to be left to state

regulation and control.” Id. at 16,820. In other words,

direct federal regulation of pollutant discharges into

groundwater would compromise Congress’ intended

division of labor between state and federal regulators.

Although Congress’ overarching “objective” in the

CWA was to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s

waters,” 33 U.S.C. § 1251(a), it sought to achieve that

objective in specific, limited ways that give proper

respect to the principle of federalism. See Nat’l

Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir.

1982) (“[I]t is one thing for Congress to announce a

grand goal, and quite another for it to mandate full

implementation of that goal.”). And as this Court has

often noted, no law pursues its stated objectives “at all

costs”; rather, “the textual limitations upon a law’s

16

scope are no less a part of its ‘purpose’ than its

substantive authorizations.” Rapanos, 547 U.S. at 752

(plurality op.). Here, both the text and the broader

context of the CWA make clear that its purpose was

not to subject every type of discharge of a pollutant to

federal

control;

certain

discharges—including

discharges into groundwater—are primarily left to

state regulation. This Court should reverse the

decisions of the Ninth and Fourth Circuits to maintain

the balance Congress intended.

II. The Ninth and Fourth Circuits’ Expansion

of the Clean Water Act Undermines the

Rights of Landowners.

This Court should also consider the practical

realities that would accompany the broad expansion

of the CWA envisioned by the Ninth and Fourth

Circuits. Complying with CWA requirements can be

extraordinarily difficult and expensive for ordinary

landowners. That is especially troubling given the

steep fines, and even criminal liability, that

individuals can incur for CWA violations. See Hawkes

Co., 136 S. Ct. at 1816 (Kennedy, J., concurring)

(“[T]he consequences to landowners even for

inadvertent violations [of the Act] can be crushing.”).

The proposed expansion of the CWA to include federal

regulation of groundwater only adds to property

owners’ confusion and anxiety. Under the lower

courts’ novel theories of liability, tens of millions of

landowners run the risk of incurring enormous costs

for activities as simple as maintaining a home septic

tank. This Court should correct this unconstitutional

overreach and limit the CWA’s scope to protect the

constitutional rights of landowners.

17

A. Regulating Groundwater Under the Act

Violates Landowners’ Due Process

Rights.

Due process requires that landowners have fair

notice of whether their ordinary land use activities are

subject to CWA regulation. See Johnson v. United

States, 135 S. Ct. 2551, 2556 (2015) (Government

action violates due process if it “take[s] away

someone’s life, liberty, or property under a criminal

law so vague that it fails to give ordinary people fair

notice of the conduct it punishes, or so standardless

that it invites arbitrary enforcement.”). Experience

shows that the CWA and its implementing regulations

are plagued with vagueness problems. See, e.g., Nat’l

Ass’n of Mfrs., 138 S. Ct. 617; Hawkes Co., 136 S. Ct.

1807; Sackett, 566 U.S. 120; Rapanos, 547 U.S. 715.

Given this vagueness, even before the lower

courts’ expansion of the CWA to impose federal control

of groundwater, landowners were forced to play a

constant high-stakes guessing game in hopes of

complying with the CWA. See, e.g., Sackett, 566 U.S.

at 132 (Alito, J., concurring) (“[T]he uncertain reach of

the Clean Water Act and the draconian penalties

imposed for the sort of violations alleged in this case

still leaves most property owners with little practical

alternative but to dance to the EPA’s tune.”). The

“draconian penalties” they face include steep civil

fines, up to $37,500 per day for unpermitted pollutant

discharges, as well as criminal liability. See 40 C.F.R.

§ 19.4 Table 1 (2011) (maximum fine list); 33 U.S.C.

§ 1319(c) (criminal provisions). Under the liability

expansion accepted by the Ninth and Fourth Circuits,

landowners are swept further into confusion and

uncertainty as to whether their normal, everyday

18

activities are subject to these penalties. Due process

does not tolerate such lack of notice.

B. The Clean Water Act’s Regulation

of Groundwater Pollution Places

Unacceptable Burdens on Landowners.

Prior to groundwater regulation entering the

picture, the CWA already caused significant confusion

and risk for landowners seeking to engage in normal

activities. Take, for example, the petition for writ of

certiorari in Robertson, which this Court recently

granted to vacate and remand. 2019 WL 1590229.

That case involved an elderly veteran who served 18

months in prison and was fined $130,000 for building

fire protection ponds on land situated 40-plus miles

from the closest navigable water. See Pet. for Cert. i,

Robertson v. United States, No. 18-609, 2018 WL

5978094 (Nov. 7, 2018). Yet the Ninth Circuit upheld

Mr. Robertson’s conviction because the ponds were

dug in and around a narrow channel carrying two or

three garden hoses’ worth of flow, rendering them (in

the Ninth Circuit’s view) subject to CWA regulation.

United States v. Robertson, 875 F.3d 1281, 1286,

1290–92 (9th Cir. 2017).

In another CWA case, the Army Corp of Engineers

prohibited a small business owner in North Pole,

Alaska, from relocating his business to a plot of land

that contained permafrost (frozen ground). Tin Cup,

LLC v. U.S. Army Corps of Eng’rs, 904 F.3d 1068, 1072

(9th Cir. 2018), cert. denied, 2019 WL 1886046

(Apr. 29, 2019). Although the Corps had earlier

concluded that permafrost was not subject to the

CWA, it subsequently changed its approach to

delineating wetlands, subjecting the property owner

to significant regulatory burdens. Id. Tin Cup and

19

Robertson are but a few examples of the chaos and

confusion under the CWA that existed even before the

Ninth and Fourth Circuits decided to add

groundwater to its scope.

Expanding the Act to impose federal regulation of

groundwater only compounds the CWA headache for

landowners. As the lower courts have entertained

extending the CWA’s reach to groundwater pollution,

several proposed tests have emerged regarding how to

enforce such regulations, including the tests adopted

by the Ninth and Fourth Circuits. See Damien Schiff,

Keep the Clean Water Act Cooperatively Federal—Or,

Why the Clean Water Act Does Not Directly Regulate

Groundwater Pollution, 42 Wm. & Mary Envtl. L. &

Pol’y Rev. 447, 451 (2018) (discussing the potential

theories for regulation of groundwater under the

CWA). But under any of the proposed theories,

expanding the CWA to federally regulate

groundwater pollution would substantially increase

the already heavy burdens on landowners.

For example, under the Fourth Circuit’s “direct

hydrological connection” test, landowners would have

an incredibly difficult time determining whether their

land use activity qualifies. Ascertaining whether a

direct hydrological connection exists between a point

source and a navigable water “is generally very

difficult, very expensive, and potentially impossible.”

James W. Hayman, Comment, Regulating PointSource Discharges to Groundwater Hydrologically

Connected to Navigable Waters: An Unresolved

Question of Environmental Protection Agency

Authority Under the Clean Water Act, 5 Barry L. Rev.

95, 126 (2005). Factors that must be considered

include “the nature of the aquifer, the distance and

20

flow path the groundwater must travel, the time

required for travel, and fate of the pollutants during

travel.” Id. at 124. While wealthy corporations and

experienced government agencies can perhaps

“reasonably be expected to hire [an] army of

hydrologists, engineers, and lawyers to determine

[their] liability,” it is unthinkable that most

landowners would have the resources necessary to

make this determination. Jonathan Wood, Property &

Environ. Research Center, Environmental Markets

Work Better than Indecipherable Regulations, Apr. 2,

2018, https://bit.ly/2IXY7CY. And neither the test

proposed by the district court in this case (the “conduit

theory”) nor that proposed by the Ninth Circuit in this

case (the “functional equivalent” test) fares any better

in terms of moderating unpredictability or compliance

costs.

The complexity of determining whether land use

activities trigger federal regulation under the CWA is

just one of the problems with the Act’s expansion to

groundwater pollution. The myriad ways that small

amounts of groundwater pollution may occur also

demonstrate the toll that such an expansion would

take on landowners. Any number of run-of-the-mill

land use activities—such as maintaining septic tanks,

fertilizing crops or lawns, and using road salts—may

cause groundwater pollution. See Groundwater

Foundation, Groundwater Contamination, https://

bit.ly/2qafuVL (last visited May 9, 2019). In the

United States, more than one in five households use a

septic tank to dispose of their wastewater. See EPA,

Septic Systems Overview, https://bit.ly/2hg6AUU (last

visited May 9, 2019). Each year, local governments

and property owners in the United States use about

15 to 20 million tons of salt to de-ice the roads. See

21

Catherine Houska, Stainless Steel Helps Prevent

Deicing Salt Corrosion, International Molybdenum

Association, https://bit.ly/2H2B8Vg (last visited

May 9, 2019). And in 2014, commercial fertilizer

consumption in the United States reached 23.2

million tons annually.8 See EPA, Report on the

Environment: Agricultural Fertilizer, https://bit.ly/

2LoV7BA (last visited May 9, 2019). If the CWA now

imposes federal regulation on groundwater pollution,

tens of millions of people will be obligated to

determine whether their ordinary land use activities

discharge pollutants into groundwater that is a

“conduit,” or is “fairly traceable,” or has a sufficiently

“direct hydrological connection” to surface water, to

require a permit under the CWA.

Even then, determining that a federal permit is

necessary is just the first step. After all, once property

owners determine that their land use activities are

subject to the CWA’s permitting requirements, they

then must expend the time and money necessary to

obtain a permit. And those costs can be staggering and

time consuming, well beyond the reach of ordinary

landowners. See Rapanos, 547 U.S. at 721 (“The

average applicant for an individual permit spends 788

days and $271,596 in completing the process … not

counting costs of mitigation or design changes.”); see

also Hawkes Co., 136 S. Ct. at 1812 (noting that

“‘general’ permits took applicants, on average, 313

days and $28,915 to complete”). Obtaining a permit

under the CWA is no small burden, one which will fall

Traditionally, these discharges have not been subject to

federal regulation under the CWA. See EPA, Basic Information

about Nonpoint Source Pollution, https://bit.ly/2QsWmOg (last

visited May 9, 2019).

8

22

hardest on small landowners who cannot write off

their time and money as the cost of doing business.

C. Overzealous Enforcement Makes the

Statute’s Defects Intolerable.

Perhaps the most egregious aspect of this CWA

expansion is the overzealous enforcement that

landowners face. In addition to the Agencies’

enforcement authority, CWA gives private citizens

and environmental groups the ability to enforce the

Act through its citizen-suit provision. See 33 U.S.C.

§ 1365(a); Oliver A. Houck, Standing on the Wrong

Foot: A Case for Equal Protection, 58 Syracuse L. Rev.

1, 15 n.91 (2007) (“Two of the most citizen-enforced

programs in environmental law are the Clean Air and

Clean Water Acts.”). Consider California, which leads

the country in the number of CWA citizen suits filed.

From 2010 to 2016, citizen and environmental groups

in California on average filed more CWA enforcement

cases than the EPA filed nationwide. See California

Coastkeeper Alliance, A Solution to California Water

Pollution: The benefits of citizen lawsuits and their

value for clean water enforcement in California,

https://bit.ly/2vIrLnw (last visited May 9, 2019). And

with the surge of donations certain nonprofit groups

received after the 2016 election, they have

unprecedented resources to vigorously pursue CWA

enforcement actions. See Jennifer Bissell, Donations

to charitable groups surge after Trump victory,

Financial Times, Nov. 11, 2016, https://on.ft.com/

2gtNztB (“The Sierra Club has nearly quadrupled its

monthly donation record in the days following the

election, adding 4,000 monthly donors, worth about an

estimated $2m over the course of their donations.”).

23

Moreover, under the CWA a prevailing party can

obtain an award of litigation costs, including attorney

fees. See 33 U.S.C. § 1365(d). The prospect of

collecting five- or six-figure awards in CWA

enforcement suits allows for a business model that

invites litigation abuse and turns private actors into

ambulance

chasers.

See

Marc

Robertson,

Environmental Ambulance Chasing: DOJ Urges Court

to Scrutinize Clean Water Citizen-Suit Settlements,

Forbes, June 26, 2018, https://bit.ly/2Jepubh. In fact,

the Department of Justice objected last year to several

settlement agreements that appear to have been

“designed to shake down defendants for attorneys fees

rather than address environmental concerns.”

Jonathan Wood, Property & Environ. Research

Center, Environmental Crusaders or Ambulance

Chasers?, May 31, 2018, https://bit.ly/2Y2Gup5. In

short, private actors not only have the resources

necessary to pursue CWA enforcement actions against

landowners, they have a financial incentive under the

CWA to do so. Expanding the CWA to groundwater

will only magnify these concerns.

When faced with an enforcement action,

landowners often find themselves saddled with the

burden of trying to show that the pollution in question

is not connected to their activities. Given that “few

groundwater-borne pollutants ... are unique,” tracing

a specific source of pollutants that appear in surface

water is very difficult. Hayman, supra, at 124. This is

especially true for pollutants discharged by livestock.

Id. As a result, often the only defense available to

landowners such as those who run livestock is to show

that someone else’s activity likely generated the same

non-unique pollutants. Thus, under the CWA,

24

landowners bear the brunt of enforcement actions at

every turn.

CWA regulation “continues to raise troubling

questions regarding the Government’s power to cast

doubt on the full use and enjoyment of private

property throughout the Nation.” Hawkes Co., 136 S.

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

persists with the Ninth and Fourth Circuits’ decisions

to expand federal regulation under the CWA to reach

groundwater pollution. Such expansion would

undercut the property rights of tens of millions of

landowners by subjecting them to significant

regulatory burdens and unjustifiable costs.

CONCLUSION

This Court should reverse the Ninth Circuit below

and the Fourth Circuit in Kinder Morgan and hold

that there is no federal CWA jurisdiction over

pollutant discharges into groundwater.

DATED: May 2019.

Respectfully submitted,

DAMIEN M. SCHIFF

MOLLIE R. WILLIAMS

Pacific Legal Foundation

930 G Street

Sacramento, CA 95814

Telephone: (916) 419-7111

dschiff@pacificlegal.org

mwilliams@pacificlegal.org

GLENN E. ROPER

Counsel of Record

Pacific Legal Foundation

1745 Shea Ctr. Dr., Suite 400

Highlands Ranch, CO 80129

Telephone: (916) 419-7111

geroper@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation