Petition for Writ of Certiorari — Kinder Morgan Energy Partners, L.P., et al., Petitioners v. Upstate Forever, et al.

No. ______

In the

Supreme Court of the United States

________________

KINDER MORGAN ENERGY PARTNERS, L.P. and

PLANTATION PIPE LINE COMPANY, INC.,

v.

Petitioners,

UPSTATE FOREVER and SAVANNAH RIVERKEEPER,

________________

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

C. HARKER RHODES IV

LAUREN N. BEEBE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioners

August 28, 2018

QUESTIONS PRESENTED

The Clean Water Act requires a permit for the

“discharge of pollutants” into navigable waters,

defined as “any addition of any pollutant to navigable

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

The Act leaves the States with primary responsibility

to regulate all other forms of pollution, including the

discharge of pollutants into soil and groundwater.

Petitioners own a pipeline that ruptured and spilled

gasoline into the soil and groundwater four years ago.

Within days of discovering the leak, petitioners fully

repaired the pipeline, and have worked with state

authorities ever since to remediate the spill. Some

gasoline that spilled into the soil and groundwater has

been conveyed by groundwater into nearby navigable

waters. In the context of a citizen suit filed two years

after the pipe was repaired, the Fourth Circuit

concluded that this seepage of gasoline through soil

and groundwater constitutes an “ongoing violation” of

the Act’s prohibition on unpermitted discharges of

pollutants from a point source to navigable waters.

The questions presented are:

1. Whether the Clean Water Act’s permitting

requirement is confined to discharges from a point

source to navigable waters, or whether it also applies

to discharges into soil or groundwater whenever there

is a “direct hydrological connection” between the

groundwater and nearby navigable waters.

2. Whether an “ongoing violation” of the Clean

Water Act exists for purposes of the Act’s citizen-suit

provision when a point source has permanently ceased

discharging pollutants, but some of the pollutants are

still reaching navigable water through groundwater.

ii

PARTIES TO THE PROCEEDING

Kinder Morgan Energy Partners, L.P. and

Plantation Pipe Line Company, Inc. are petitioners

here and were defendants-appellees below. Upstate

Forever and Savannah Riverkeeper are respondents

here and were plaintiffs-appellants below.

iii

CORPORATE DISCLOSURE STATEMENT

Kinder Morgan Energy Partners, L.P. is 100%

owned by Kinder Morgan G.P., Inc., which is 100%

owned by Kinder Morgan, Inc. Plantation Pipe Line

Company, Inc. is 51% owned by Kinder Morgan

Energy Partners, L.P. and 49% owned by ExxonMobil

Corporation.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

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

CORPORATE DISCLOSURE STATEMENT ........... iii

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

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

STATUTORY PROVISIONS INVOLVED ................. 4

STATEMENT OF THE CASE ................................... 4

A. The Clean Water Act .................................... 4

B. Proceedings Below ........................................ 9

REASONS FOR GRANTING THE PETITION....... 13

I.

This Court Should Resolve The Circuit Split

Over When, If Ever, The Clean Water Act

Applies To A Discharge Into Soil Or

Groundwater ...................................................... 16

A. Lower Courts Are at Odds over Whether

the Clean Water Act Applies to

Discharges into Soil or Groundwater ........ 16

B. The Decision Below Upends Congress’

Statutory Scheme and Is Completely

Unworkable ................................................ 20

1.

The text, structure, and history of

the CWA confirm that it does not

apply to discharges to soil or

groundwater ......................................... 21

v

2.

The decision below misreads this

Court’s precedent and seeks to solve

a problem that does not exist .............. 25

II. This Court Should Resolve The Circuit Split

Over Whether The Lingering Effects Of A

Long-Ago-Ceased Discharge Can Constitute

An “Ongoing Violation” Of The CWA ............... 29

III. The Questions Presented Are Exceptionally

Important And Have Wide-Ranging Impact .... 34

CONCLUSION ......................................................... 37

APPENDIX

Appendix A

Opinion, United States Court of Appeals for

the Fourth Circuit, Upstate Forever v.

Kinder Morgan Energy Partners, No. 17-1640

(April 12, 2018) ............................................ App-1

Appendix B

Order, United States Court of Appeals for the

Fourth

Circuit,

Upstate

Forever

v.

Kinder Morgan Energy Partners, No. 17-1640

(May 30, 2018) ........................................... App-52

Appendix C

Opinion & Order, United States District

Court of South Carolina, Upstate Forever v.

Kinder Morgan Energy Partners, No. 8:16-cv04003-HMH (April 20, 2017)..................... App-54

Appendix D

Relevant Statutory Provisions .................. App-74

33 U.S.C. § 1251 .................................. App-74

33 U.S.C. § 1311(a).............................. App-77

vi

33 U.S.C. § 1342(a)-(d) ........................ App-77

33 U.S.C. § 1362(7), (11), (12), (14),

(16) ....................................................... App-85

33 U.S.C. § 1365(a)(1), (b)(1), (d) ........ App-86

vii

TABLE OF AUTHORITIES

Cases

26 Crown Assocs., LLC v. Greater New Haven

Reg’l Water Pollution Control Auth.,

No. 3:15-CV-1439 (JAM), 2017 WL 2960506

(D. Conn. July 11, 2017) ........................................ 19

Aiello v. Town of Brookhaven,

136 F. Supp. 2d 81 (E.D.N.Y. 2001) ...................... 33

Cape Fear River Watch, Inc. v. Duke Energy

Progress, Inc.,

25 F. Supp. 3d 798 (E.D.N.C. 2014) ...................... 19

Day, LLC v. Plantation Pipe Line Co.,

No. 2:16-cv-00429-LSC, 2018 WL 2572750

(N.D. Ala. June 4, 2018) ........................................ 33

Exxon Corp. v. Train, 554 F.2d 1310

(5th Cir. 1977) ........................................................ 17

Flint Riverkeeper, Inc. v. S. Mills, Inc.,

276 F. Supp. 3d 1359 (M.D. Ga. 2017) .................. 20

Friends of Santa Fe Cty.

v. LAC Minerals, Inc.,

892 F. Supp. 1333 (D.N.M. 1995) .......................... 33

Gwaltney of Smithfield, Ltd.

v. Chesapeake Bay Found.,

484 U.S. 49 (1987) .......................................... passim

Hamker v. Diamond Shamrock Chem. Co.,

756 F.2d 392 (5th Cir. 1985)............................ 13, 33

Hawai‘i Wildlife Fund v. Cty. of Maui,

886 F.3d 737 (9th Cir. 2018)............................ 19, 26

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

303 F. Supp. 3d 530 (E.D. Ky. 2017) ..................... 18

viii

Rapanos v. United States,

547 U.S. 715 (2006) ........................................ passim

Rice v. Harken Expl. Co.,

250 F.3d 264 (5th Cir. 2001)...................... 11, 17, 23

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

Tribe of Indians,

541 U.S. 95 (2004) .................................................. 24

Sackett v. EPA,

566 U.S. 120 (2012) ................................................ 35

Sierra Club v. Abston Constr. Co.,

620 F.2d 41 (5th Cir. 1980).................................... 18

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

421 F.3d 1133 (10th Cir. 2005)........................ 18, 25

Simsbury-Avon Pres. Soc’y

v. Metacon Gun Club, Inc.,

575 F.3d 199 (2d Cir. 2009) ................................... 18

Solid Waste Agency of N. Cook Cty.

v. U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) .................................................. 5

Tenn. Clean Water Network

v. Tenn. Valley Auth.,

273 F. Supp. 3d 775 (M.D. Tenn. 2017) .......... 20, 36

Tri-Realty Co. v. Ursinus Coll.,

124 F. Supp. 3d 418 (E.D. Pa. 2015) ..................... 19

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

136 S. Ct. 1807 (2016).................................... 3, 7, 35

United States v. Johnson,

437 F.3d 157 (1st Cir. 2006) .................................. 18

Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427 (2014)............................................ 34

ix

Vill. of Oconomowoc Lake

v. Dayton Hudson Corp.,

24 F.3d 962 (7th Cir. 1994)........................ 11, 16, 17

Wilson v. Amoco Corp.,

33 F. Supp. 2d 969 (D. Wyo. 1998) ........................ 33

Statutes

28 U.S.C. §1254 .......................................................... 4

33 U.S.C. §1251 .............................................. 4, 22, 24

33 U.S.C. §1252 ........................................................ 22

33 U.S.C. §1254 ........................................................ 22

33 U.S.C. §1311 .................................................... 5, 29

33 U.S.C. §1319 .......................................................... 8

33 U.S.C. §1329 .............................................. 7, 24, 28

33 U.S.C. §1342 .......................................... 7, 8, 21, 24

33 U.S.C. §1362 ................................................ passim

33 U.S.C. §1365 ...................................................... 8, 9

42 U.S.C. §6901 et seq. ............................................. 28

42 U.S.C. §9601 et seq. ............................................. 28

Regulations

33 C.F.R. §323.2.......................................................... 7

40 C.F.R. §19.4............................................................ 8

40 C.F.R. §122.2........................................................ 21

Other Authorities

118 Cong. Rec. 10,666 (1972) ............................... 6, 23

118 Cong. Rec. 10,669 (1972) .............................. 6, 23

EPA, State Contacts for NPS Pollution

Programs, www.epa.gov/nps/state-contactsnps-programs (last visited Aug. 28, 2018) .............. 7

x

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

1972 U.S.C.C.A.N 3668 ..................................... 6, 22

Water Pollution Control Legislation—1971

(Proposed Amendments to Existing

Legislation): Hearings before the Comm. on

Pub. Works, 92d Cong. (1971) ................................. 6

PETITION FOR WRIT OF CERTIORARI

The Clean Water Act (“CWA”), 33 U.S.C. §1251 et

seq., does not impose federal supervision over any and

all sources of pollution that conceivably could affect

any and all water quality. Instead, Congress created

a federal permitting system targeted at a particular

type of pollution to a specific type of water: the

“discharge of pollutants,” meaning “any addition of

any pollutant to navigable waters from any point

source.” 33 U.S.C. §1362(12). For nonpoint-source

pollution, including the pollution of soil and

groundwater, the CWA respects our federal system by

leaving the States with primary responsibility to

develop appropriate regulatory programs tailored to

local conditions.

For years, lower courts were in agreement that

the CWA’s permitting scheme does not apply to the

discharge of pollutants into groundwater, as Congress

drew a careful line between navigable waters and

groundwater throughout the CWA, and made plain its

intention to regulate only the former. Likewise, for

years, lower courts agreed that groundwater pollution

is not “point source” pollution, as the CWA defines a

“point source” as a “discernible, confined and discrete

conveyance,” 33 U.S.C. §1362(14), which groundwater

manifestly is not. But over the past year, two courts

of appeals, including the Fourth Circuit in the decision

below, have reached the contrary conclusion.

According to the Fourth Circuit, the CWA applies not

only to the discharge of pollutants into navigable

waters, but also to the discharge of pollutants into soil

and groundwater, as long as some of those pollutants

2

migrate from that groundwater into navigable waters

through a “direct hydrological connection.” App.22-24.

That conclusion squarely conflicts with decisions

from the Fifth and Seventh Circuits and numerous

district courts—not to mention the CWA’s text,

structure, and history. As that history reveals, the

omission of “groundwater” from the CWA’s

jurisdictional reach was no accident.

Congress

expressly considered—and expressly rejected—

numerous requests to expand the CWA to create

federal authority to regulate groundwater precisely

because of its “hydrological connection” to navigable

waters. But despite recognizing that jurisdiction over

groundwater would be useful to EPA’s authority to

preserve the water quality of navigable waters,

Congress expressly withheld authority over

groundwater on federalism grounds. As the Fifth and

Seventh Circuits correctly concluded, the statute

simply cannot be interpreted to create precisely the

result Congress so plainly intended to prevent. The

Fourth and Ninth Circuits’ contrary conclusions not

only have dramatically expanded the CWA’s

permitting requirement, but have spawned massive

confusion over jurisdictional lines and permitting

requirements that must be clear to function properly.

The decision below compounds those problems by

embracing a boundless conception of what constitutes

an “ongoing violation” of the CWA. This Court already

answered that question in Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49

(1987), which squarely rejected the notion that a

discharge that is not ongoing, but wholly in the past

can constitute an “ongoing violation” of the CWA. Yet

3

according to the decision below, a pipeline leak that

concededly was repaired years ago constitutes an

“ongoing violation” of the CWA’s permitting

requirement so long as any of the gasoline that leaked

into the soil and groundwater continues to find its way

to navigable waters. That conclusion reflects the

Fourth Circuit’s mistaken focus on whether pollution

reaches navigable waters, rather than on the

discharge from the point source.

The decision

squarely conflicts with Gwaltney and decisions from

the Fifth Circuit and other courts that are faithful to

Gwaltney and that reject the argument that the

lingering effects of a wholly past discharge constitute

an ongoing violation of the CWA.

The decision below not only solidifies two circuit

splits, but contributes to the ever-growing uncertainty

over the scope of the CWA. As several Justices have

recognized, the CWA is a “notoriously unclear” statute

whose “reach and systemic consequences … remain a

cause for concern.” U.S. Army Corps of Eng’rs v.

Hawkes Co., 136 S. Ct. 1807, 1816 (2016) (Kennedy, J.,

joined by Thomas and Alito, JJ., concurring). The

decision below makes that statute substantially less

clear and even more expansive in its potential reach.

Individuals and businesses that discharge pollutants

(even inadvertently) into surrounding soil, which

could then travel through a variety of diffuse,

hydrologically connected systems to navigable water,

cannot know under the current state of the law

whether they must pursue costly permits. Yet if they

refrain from doing so, they risk expensive litigation

and retroactive liability—not to mention attorney

fees—in citizen suits over groundwater and past

violations that Congress never intended to authorize.

4

This Court should grant certiorari to resolve the

divisions of authority that the decision below

exacerbates, and to restore the CWA to the bounds

that Congress intended.

OPINIONS BELOW

The Fourth Circuit’s opinion is reported at 887

F.3d 637 and reproduced at App.1-51. The district

court’s opinion is reported at 252 F.Supp.3d 488 and

reproduced at App.54-73.

JURISDICTION

The Fourth Circuit issued its 2-1 panel decision

on April 12, 2018, and denied rehearing on May 30,

2018 by a divided 7-5 vote. This Court has jurisdiction

under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced at

App.74-88.

STATEMENT OF THE CASE

A. The Clean Water Act

Congress enacted the Clean Water Act to “restore

and maintain the chemical, physical, and biological

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

The statute creates a regulatory scheme that respects

our federal structure by dividing the authority to

regulate water pollution between the federal

government and the States. As Congress intended,

that scheme “protect[s] the primary responsibilities

and rights of the States to prevent, reduce, and

eliminate pollution, [and] to plan the development and

use … of land and water resources,” id. §1251(b),

5

while also providing for direct federal regulation in

certain limited circumstances.

1. The CWA prohibits “the discharge of any

pollutant by any person,” except as otherwise

permitted by the Act. 33 U.S.C. §1311. That provision

is cabined by the statutory term “discharge of any

pollutant,” defined primarily as “any addition of any

pollutant to navigable waters from any point source.”

Id. §1362(12). As relevant here, that definition

establishes two important limitations on the scope of

federal regulation under the CWA.

First, the federal prohibition on the “discharge of

any pollutant” extends only to pollutants discharged

“to navigable waters,” which the CWA defines as “the

waters of the United States.” Id. §1362(7). While the

federal government has sometimes given that phrase

an expansive reading, this Court has repeatedly

cabined federal jurisdiction to maintain the balance

struck by Congress in enacting the CWA. See, e.g.,

Rapanos v. United States, 547 U.S. 715 (2006); Solid

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

Eng’rs (“SWANCC”), 531 U.S. 159 (2001). Moreover,

the statutory focus on navigable waters makes clear

that the CWA leaves the States with primary

authority over discharges of pollution into the soil and

groundwater.

That decision was no accident. In enacting the

CWA, Congress specifically rejected proposals to

extend federal authority to reach discharges into

groundwater. For instance, then-EPA-Administrator

William Ruckelshaus specifically requested statutory

authority to regulate discharges into groundwater in

order to preserve water quality by exercising “control

6

over all the sources of pollution, be they discharged

directly into any stream or through the ground water

table.” Water Pollution Control Legislation—1971

(Proposed Amendments to Existing Legislation):

Hearings before the Comm. on Pub. Works, 92d Cong.

230 (1971) [hereinafter Hearings] (emphasis added);

see also 118 Cong. Rec. 10,666 (1972) (proposal to

extend NPDES permitting to groundwater because

“ground water gets into navigable waters”). While

recognizing the connections between groundwater and

surface-water pollution, Congress repeatedly rejected

those requests, finding regulation of groundwater

pollution a matter better left to the States. S. Rep. No.

92-414, at 73 (1971), reprinted in 1972 U.S.C.C.A.N.

3668, 3739; see also, e.g., 118 Cong. Rec. 10,666, 10,669

(rejecting by a 34-86 vote an amendment to “bring[]

ground water into the subject of the [CWA]”).

Second, the federal prohibition extends only to

discharges from a “point source,” which the CWA

defines as “any discernible, confined and discrete

conveyance … from which pollutants are or may be

discharged,” including but not limited to “any pipe,

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

container, rolling stock, concentrated animal feeding

operation, or vessel or other floating craft.” 33 U.S.C.

§1362(14).

That limitation codifies another

federalism-preserving dichotomy:

Point-source

discharges from discrete, identifiable conveyances to

navigable waters are covered by §1311 and regulated

through the federal permitting system in §1342

(described below).

By contrast, nonpoint-source

discharges such as surface runoff and diffuse

groundwater pollution are left to regulation by state

management programs, which are established by the

7

States subject to federal approval. See 33 U.S.C.

§1329(b). All 50 States have adopted such programs.

See EPA, State Contacts for NPS Pollution Programs,

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

visited Aug. 28, 2018).

The CWA also establishes a federal permitting

program, known as the National Pollutant Discharge

Elimination System (“NPDES”), to allow regulated

discharges that otherwise would be prohibited under

§1311. 33 U.S.C. §1342. Like §1311, the NPDES

permitting requirements apply only to the “discharge

of any pollutant” as the statute defines that phrase—

that is, discharges from point sources to navigable

waters. See §1342(a). Conversely, discharges from

nonpoint sources and discharges into features other

than navigable waters do not require an NPDES

permit. Id. NPDES permits can be issued either

directly by EPA, §1342(a), or by the States through

EPA-approved state permitting programs, §1342(b).

“The costs of obtaining [an NPDES] permit are

significant.” Hawkes, 136 S. Ct. at 1812. For a

“general” permit, used for activities that “cause only

minimal individual and cumulative environmental

impacts,” 33 C.F.R. §323.2(h), applications have

required an average of 313 days and $28,915 to

complete. Hawkes, 136 S. Ct. at 1812. For a

specialized “individual” permit, the average

application time increases to 788 days, and the

average cost of completing the application (not

including the cost of any mitigation or design changes)

jumps nearly tenfold to $271,596. Id.

2. Authority to enforce the CWA rests initially

with EPA, which can seek administrative, civil, or

8

criminal sanctions for past or ongoing discharges

covered by the statute that are made without or in

violation of an NPDES permit. 33 U.S.C. §1319. State

authorities likewise can seek administrative, civil, or

criminal penalties for any past or present violation of

a state-issued NPDES permit. Id. §§1319, 1342(b)(7).

The available remedies in a civil enforcement action

include injunctive relief and penalties of over $50,000

per day for each violation; criminal penalties range

from a minimum fine of $2500 for a negligent

violation, up to a fine of $500,000 and 30 years in

prison (or $2 million for an organization) for a knowing

repeat violation that endangers others. Id. §1319; 40

C.F.R. §19.4 tbl.2.

The Act provides for limited private enforcement

through its citizen-suit provision. 33 U.S.C. §1365.

When neither EPA nor a State “has commenced and is

diligently prosecuting a civil or criminal action” to

remedy an ongoing CWA violation, the statute

authorizes “any citizen” to bring a civil action against

any person who is alleged “to be in violation” of the Act

(including any permits or orders issued under the Act).

Id. §1365(a). As this Court held in Gwaltney, that “to

be in violation” language authorizes private citizens to

sue only when they allege an ongoing “continuous or

intermittent violation” of the Act—that is, “a

reasonable likelihood that a past polluter will continue

to pollute in the future.” 484 U.S. at 57. By contrast,

citizen suits are not available to address “wholly past

violations,” as the very fact that the point-source

discharges have ceased may explain the lack of a

government suit and allowing private suits “could

undermine the supplementary role envisioned for the

citizen suit” and “change the nature of the citizens’

9

role from interstitial to potentially intrusive.” Id. at

60-61.

For remedies, the CWA permits private citizens to

seek injunctive relief, as well as civil penalties payable

to the U.S. Treasury.

33 U.S.C. §1365(a); see

Gwaltney, 484 U.S. at 53. It also permits recovery of

attorney fees, expert witness fees, and other litigation

costs for successful suits. Id. §1365(d).

B. Proceedings Below

1. Petitioners Kinder Morgan Energy Partners,

L.P. and Plantation Pipe Line Company, Inc. (“Kinder

Morgan”) own and operate the Plantation Pipe Line, a

3,100-mile underground pipeline network that runs

from Louisiana to Washington, DC. App.55. In early

December 2014, Kinder Morgan learned that a portion

of its pipeline located in Anderson County, South

Carolina had developed a crack 6 to 8 feet

underground and spilled some 370,000 gallons of

petroleum products comprised of gasoline and diesel

into the surrounding soil and groundwater. App.6.

As soon as it discovered the leak, Kinder Morgan

took immediate action. Within a few days, Kinder

Morgan had fully repaired the pipeline, ending the

discharge of pollutants into the soil and groundwater.

App.27-28. Kinder Morgan took immediate steps to

investigate the extent of the spill and begin

remediation, working under the guidance of the South

Carolina Department of Health and Environmental

Control. App.27-28. To this day, Kinder Morgan

continues to work with state authorities to remove any

remaining leaked gasoline from the site and carry out

further remediation. App.28. For instance, Kinder

Morgan has worked with the South Carolina

10

authorities to develop and implement multiple

Comprehensive Site Assessments and Corrective

Action Plans; installed 98 temporary monitoring

wells, 20 product recovery sumps, and 15 recovery

wells; started up an extensive biosparging system;

removed more than 2,800 tons of contaminated soil;

and recovered more than 222,980 gallons of spilled

petroleum products.

2. In December 2016, approximately two years

after the spill was discovered and the leak fully

repaired, respondents Upstate Forever and Savannah

Riverkeeper (two environmental advocacy groups)

sued Kinder Morgan under the CWA citizen-suit

provision. Although respondents recognized that the

pipeline had spilled gasoline into the soil and

groundwater—not navigable water—they alleged that

the spill violated the CWA because the groundwater

has a “direct hydrological connection” to nearby

navigable water. App.6-7, 9. Respondents also

recognized that the pipeline was no longer discharging

pollutants into the surrounding soil, but claimed there

was a continuing violation because pollutants

continued to seep through hundreds of feet of soil and

groundwater to nearby tributaries and wetlands.

App.6-7.

Dissatisfied with the ongoing statesupervised remediation efforts, respondents sought

damages, declaratory relief, and injunctive relief

requiring Kinder Morgan to take additional measures

to abate the remaining effects of the two-year-old spill.

App.9.

3. The district court dismissed the complaint on

two grounds. First, it rejected respondents’ view that

the CWA covers a discharge of pollutants into

11

groundwater that has a “direct hydrological

connection” to navigable waters. App.67-72. As the

court noted, other district courts “are split on this

issue.” App.68. However, at the time the district court

ruled, “the two circuit courts to address this issue have

concluded that navigable waters do[] not include

groundwater that is hydrologically connected to

surface waters.” App.68 (citing Rice v. Harken Expl.

Co., 250 F.3d 264 (5th Cir. 2001), and Vill. of

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

962 (7th Cir. 1994)). Adopting that approach, the

district court explained that “‘navigable waters’ and

‘ground waters’ are separate and distinct concepts in

the CWA,” and that extending the Act to cover

groundwater that is “hydrologically connected” to

navigable waters would erase that distinction.

App.70.

The court also rejected respondents’ view that

they alleged an ongoing violation because pollution

released from the pipeline before it was repaired in

December 2014 allegedly “continues to make its way”

to navigable waters. App.61. Because there was “no

continuing discharge from the pipeline,” and no

allegation that the pipeline would discharge

pollutants into navigable waters in the future,

respondents could not show the continuing or

intermittent CWA violation that a citizen suit

requires. App.62-63. To the extent any “migration of

pollutants through soil and groundwater” was

continuing to occur, it was “nonpoint source pollution

that is not within the purview of the CWA.” App.62.1

1 The district court likewise rejected respondents’ arguments

that the remaining pollution at the spill site, the “seeps, flows,

12

4. A divided panel of the Fourth Circuit reversed

on both grounds. In an opinion by Judge Keenan,

joined by Chief Judge Gregory, the majority held that

the CWA covers not only discharges of pollutants into

navigable waters (as its text states), but also

discharges of pollutants into groundwater with a

“direct hydrological connection” to navigable waters.

App.23-24. According to the majority, the CWA “does

not require a discharge directly to navigable waters,”

but instead covers discharges into groundwater that

eventually pass into navigable waters—at least, as

long as there is a “clear connection” between the

discharge and the later effect on navigable waters.

App.20-22. The majority acknowledged that this

“assessment of the directness of a hydrological

connection” is necessarily a fact-specific inquiry,

depending on factors such as “time and distance” and

“geology, flow, and slope.” App.23-24. Applying its

new standard, the majority concluded that

respondents adequately alleged a “direct hydrological

connection” between the groundwater around the spill

site and navigable waters. App.24-26.

The majority also held that, even though it was

undisputed that the pipeline was no longer emitting

any pollutants, respondents had adequately alleged

an ongoing violation. While the majority recognized

that the CWA authorizes citizen suits only to redress

“continuous or intermittent” violations, App.12, it held

that requirement satisfied because the CWA “does not

require that the point source continue to release a

pollutant for a violation to be ongoing.” App.15.

and fissures” in the surrounding soil, or the remediation efforts

were point sources. App.63-66.

13

Although the Fifth Circuit had enforced such a

requirement in Hamker v. Diamond Shamrock Chem.

Co., 756 F.2d 392 (5th Cir. 1985), the majority

“decline[d] to adopt the Fifth Circuit’s approach.”

App.18 n.9. Instead, the majority held that the CWA

requires only an “ongoing addition [of pollution] to

navigable waters,” a requirement that it concluded

was met here because the groundwater allegedly

continued to carry pollution from the two-year-old

spill into nearby streams. App.16-17.

Judge Floyd dissented. As he explained, the text,

history, and structure of the CWA compel the

conclusion that “not every addition of pollution

amounts to a CWA violation—much less an ongoing

CWA violation.” App.27. Instead, “for there to be an

ongoing CWA violation, there must be an ongoing

addition of pollutants from a point source into

navigable waters.” App.27. Because “the only point

source at issue—Kinder Morgan’s pipeline—has been

repaired and is not currently adding any pollutants

into navigable waters,” respondents had not alleged

any current, ongoing discharge that could authorize

their citizen suit. App.27; see also App.41-42. The

“ongoing migration” of groundwater contamination,

Judge Floyd explained, is “by definition, nonpoint

source pollution” and thus “outside of the CWA’s

reach.” App.44.

A closely divided Fourth Circuit denied rehearing

en banc by a 7-5 vote. App.52-53.

REASONS FOR GRANTING THE PETITION

The decision below contributes to growing division

among the lower courts on two questions that are

critical to the proper scope of the CWA. First, the

14

Fourth Circuit has joined the Ninth Circuit in holding

that the CWA applies not only to discharges into

navigable waters, but also discharges into soil and

groundwater, so long as there is a “direct hydrological

connection” (or, in the Ninth Circuit’s equally atextual

formulation, a “fairly traceable” connection) between

the groundwater and some navigable water. That

conclusion conflicts with decisions of the Fifth and

Seventh Circuits, as well as decisions from numerous

district courts. Worse still, it contradicts the text,

structure, and history of the CWA, and expands the

statute’s permitting program to cover things that

Congress expressly reserved to the States.

The Fourth Circuit then compounded the problem

by concluding that discharges into soil and

groundwater not only fall within the CWA, but also

can constitute “ongoing violations” long after the

actual point-source discharges have ceased. In the

Fourth Circuit’s view, so long as pollutants continue

to make their way into navigable waters, the CWA

continues to be violated, even if there is no ongoing

discharge from the point source at all.

That

nonsensical result conflicts with decisions from this

Court, the Fifth Circuit, and the many district courts

that have recognized that a long-ceased discharge

cannot plausibly be deemed an “ongoing” violation.

The Fourth Circuit’s contrary conclusion is just

another symptom of the inevitable problems with its

mistaken conception that the CWA is concerned only

with whether pollutants are finding their way into

navigable waters, not whether they get there from an

ongoing discharge from a point source. In reality,

Congress carefully confined the CWA’s permitting

regime to apply only to the discharge of pollutants

15

from a point source to navigable waters. The decision

below radically expands the statute in ways that

Congress plainly did not intend.

The questions presented have enormous practical

impact. As numerous members of this Court have

observed, the CWA is notoriously vague, its

permitting requirements are expensive, and its

potential reach has the capacity to obliterate the

cooperative federalism Congress envisioned.

By

generating massive uncertainty about when, and for

what, a permit is required, the decision below will

force both regulators and the regulated community to

expend considerable resources seeking and trying to

figure out how to craft permits for circumstances that

Congress never intended to cover. And the ultimate

result will be an ever-increasing shift of regulatory

power away from the States (like South Carolina,

which has been actively addressing the long-fixed leak

for years) and into the hands of federal regulators and

late-on-the-scene citizen-suit filers, which is precisely

the result Congress unmistakably sought to avoid

both generally and with respect to groundwater in

particular. The Court should grant certiorari and

restore the balance of power that Congress so carefully

crafted the CWA to achieve.

16

I.

This Court Should Resolve The Circuit Split

Over When, If Ever, The Clean Water Act

Applies To A Discharge Into Soil Or

Groundwater.

A. Lower Courts Are at Odds over Whether

the Clean Water Act Applies to

Discharges into Soil or Groundwater.

The decision below joins a deepening conflict in

the federal courts over whether the CWA and its

NPDES permitting program apply to the discharge of

pollutants through soil and groundwater if the

pollutants ultimately reach navigable waters. As the

district court recognized, when this case was filed, the

circuit court decisions addressing that question had

all adhered to the statutory scheme and held that the

discharge of pollutants into soil and groundwater is

outside the CWA. See App.68. Since then, however,

both the Fourth Circuit (in the decision below) and the

Ninth Circuit have broken from that consensus,

holding that a permit must be obtained for discharges

into soil or groundwater if the groundwater has a

“direct hydrological connection” to navigable waters

(per the Fourth Circuit), or the connection between the

groundwater and navigable waters is “fairly

traceable” (per the Ninth Circuit). District courts

likewise have taken both sides of the issue, leaving the

lower courts in square conflict.

Until recently, no circuit had ever construed the

CWA to apply to discharges into soil or groundwater,

whether or not some of the discharge ultimately

reached navigable water. In Village of Oconomowoc

Lake v. Dayton Hudson Corp., for instance, the

Seventh Circuit considered whether a permit was

17

required for a “retention pond” built to catch runoff

from a warehouse parking lot. 24 F.3d 962, 963 (7th

Cir. 1994). Although the court recognized that water

carrying pollutants could seep from the pond into

nearby groundwater, and thence into navigable

waters, it nonetheless held the retention pond was not

covered by the CWA. As the court explained, the CWA

does not “assert[] authority over ground waters, just

because these may be hydrologically connected with

surface waters.” Id. at 965. That exclusion “is not an

oversight”; on the contrary, legislative proposals to

extend the CWA to reach groundwater “have been

defeated.” Id.

The Fifth Circuit followed the same approach in

Rice v. Harken Exploration, in which plaintiffs alleged

that discharges from oil and gas wells had “seeped

through the ground into groundwater which has, in

turn, contaminated several bodies of surface water.”

250 F.3d 264, 265, 270-71 (5th Cir. 2001).2 The Fifth

Circuit rejected that claim, concluding that it would be

an “unwarranted expansion” of the statute to apply it

to “discharges onto land, with seepage into

groundwater, that have only an indirect, remote, and

attenuated connection with an identifiable body of

‘navigable waters.’” Id. at 271. Extending the federal

scheme to such “remote, gradual, natural seepage”

would ignore Congress’ clear decision “to leave the

regulation of groundwater to the States.” Id. at 272;

see also Exxon Corp. v. Train, 554 F.2d 1310, 1324 (5th

Cir. 1977) (“Congress meant to stop short of

2 Although Rice involved a claim under the Oil Production Act

of 1990 rather than the CWA, the Fifth Circuit made clear that

both statutes have the same scope. 250 F.3d at 267-68.

18

establishing

pollution”).

federal

controls

over

groundwater

Other federal courts of appeals have expressed

support for the same conclusion. See, e.g., Sierra Club

v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1141 & n.4

(10th Cir. 2005) (expressing doubt that CWA would

apply to “migration of pollutants from prior

discharges” through soil or groundwater); United

States v. Johnson, 437 F.3d 157, 161 n.4 (1st Cir. 2006)

(noting that “[t]he CWA does not cover any type of

ground water”), vacated on other grounds, 467 F.3d 56

(1st Cir. 2006). Those decisions respect the principle

that the CWA covers only point-source discharges into

navigable waters—not all discharges that eventually

reach navigable waters. See, e.g., Simsbury-Avon

Pres. Soc’y v. Metacon Gun Club, Inc., 575 F.3d 199,

223-24 (2d Cir. 2009) (firing range that discharged

pollutants to airborne dust and surface runoff that

reached navigable waters not covered by CWA); Sierra

Club v. Abston Constr. Co., 620 F.2d 41, 45 (5th Cir.

1980) (rejecting view that CWA applies “regardless of

how the pollutant found its way from th[e] original

source to the waterway”).

Numerous district courts likewise have held that

a discharge into soil or groundwater is not covered by

the CWA, even if that groundwater is “hydrologically

connected” to navigable waters (as almost all

groundwater is). See, e.g., Ky. Waterways All. v. Ky.

Utils. Co., 303 F. Supp. 3d 530, 543-45 (E.D. Ky. 2017),

appeal pending, No. 18-5115 (6th Cir. argued Aug. 2,

2018); 26 Crown Assocs., LLC v. Greater New Haven

Reg’l Water Pollution Control Auth., No. 3:15-CV-1439

(JAM), 2017 WL 2960506, at *1 (D. Conn. July 11,

19

2017), appeal pending, No. 17-2426 (2d Cir. argued

Apr. 18, 2018); Tri-Realty Co. v. Ursinus Coll., 124 F.

Supp. 3d 418, 459 (E.D. Pa. 2015); Cape Fear River

Watch, Inc. v. Duke Energy Progress, Inc., 25 F. Supp.

3d 798, 810 (E.D.N.C. 2014).

The Fourth and Ninth Circuits have now

disagreed with those courts (and with each other),

adopting two different tests under which a discharge

into soil or groundwater may be covered by the CWA.

In the Fourth Circuit, under the decision below, a

discharge into soil or groundwater is subject to the

CWA and its permitting program so long as it passes

through groundwater that has a “direct hydrological

connection” to navigable waters. App.26. And the

Ninth Circuit adopted a similar (but not identical)

approach, breaking from its sister circuits by holding

that the CWA applies to a discharge from a point

source into groundwater that then finds its way to

navigable waters so long as the discharge is “fairly

traceable from the point source to a navigable water”

and pollutants eventually reach the navigable water

at “more than de minimis” levels. Hawai‘i Wildlife

Fund v. Cty. of Maui, 886 F.3d 737, 749 (9th Cir.

2018). Needless to say, neither formulation has any

grounding in the statutory text.3

Deepening the conflict, several district courts

have applied varying tests under which discharges

into soil or groundwater may be covered, with some

3 Although the Fourth Circuit saw no difference between its

“direct hydrological connection” standard and the Ninth Circuit’s

“fairly traceable” rule, see App.24 n.12, the Ninth Circuit

disagreed, as it explicitly rejected the direct-hydrologicalconnection test. Hawai‘i Wildlife Fund, 886 F.3d at 749 n.3.

20

adopting a “direct hydrological connection” standard,

others a “traceability” standard, and still others some

different formulation. See, e.g., Flint Riverkeeper, Inc.

v. S. Mills, Inc., 276 F. Supp. 3d 1359, 1366-68 (M.D.

Ga. 2017) (denying motion to dismiss complaint

alleging discharge into groundwater with a “direct

hydrological connection” to navigable water); Tenn.

Clean Water Network v. Tenn. Valley Auth. (“TVA”),

273 F. Supp. 3d 775 (M.D. Tenn. 2017) (plaintiff must

be able to “trace pollutants from their source to

[navigable] waters”), appeal pending, No. 17-6155 (6th

Cir. argued Aug. 2, 2018); Hernandez v. Esso

Standard Oil Co. (P.R.), 599 F. Supp. 2d 175, 181

(D.P.R. 2009) (groundwater must be “hydrologically

connected” to navigable water). In short, the federal

courts are in deep disagreement over whether (and if

so how) the CWA applies to discharges into soil or

groundwater when pollutants eventually make their

way to navigable waters.

B. The Decision Below Upends Congress’

Statutory Scheme and Is Completely

Unworkable.

The decision below not only adds to a growing

conflict in the lower courts, but is contrary to the text,

structure, and legislative history of the CWA and this

Court’s precedent. The CWA reflects a deliberate

choice by Congress to limit direct federal regulation

under the statute to point-source discharges into

navigable waters, and to leave the regulation of

groundwater to the States. The decision below

eviscerates that deliberate and fundamental

distinction, and indeed embraces the very result

Congress explicitly refused to authorize.

21

1.

The text, structure, and history of

the CWA confirm that it does not

apply to discharges to soil or

groundwater.

The statutory analysis begins, as always, with the

text. The CWA limits the scope of its permitting

requirement by expressly defining the “discharge of a

pollutant” to mean only the “addition of any pollutant

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

§1362(12) (emphasis added).

Under the plain

language of that definition, a discharge into soil or

groundwater (whatever it is hydrologically connected

to) falls outside the scope of the CWA because neither

soil nor groundwater constitutes “navigable waters.”

The CWA defines “navigable waters” as “the waters of

the United States,” a term whose “only plausible

interpretation … includes only those relatively

permanent, standing or continuously flowing bodies of

water forming geographic features that are described

in ordinary parlance as streams, oceans, rivers, and

lakes.” Rapanos, 547 U.S. at 739 (plurality opinion)

(brackets and ellipsis omitted).

While “waters of the United States” may

encompass some features that would not be

conventionally described as “navigable”—such as

permanent wetlands abutting on rivers or lakes, see

id. at 734-35—it most certainly does not encompass

soil. Nor does it include water percolating through the

soil deep underground. On the contrary, the NPDES

permitting program regulates only discharges into

“navigable waters” and makes no mention whatsoever

of discharges into groundwater. 33 U.S.C. §1342; see

also 40 C.F.R. §122.2 (for purposes of the CWA,

22

“waters

of

the

United

States”

excludes

“groundwater”). That exclusion is telling, as several

provisions of the statute expressly distinguish

between “ground waters” and “navigable waters.” See,

e.g., 33 U.S.C. §1252(a) (“navigable waters and ground

waters”); §1254(a)(5) (same).

The omission of groundwater from the definition

of “discharge” is no oversight. The distinction between

groundwater and navigable waters is key to the

structure of the CWA, and to the balance Congress

struck between federal and state authority. As the

statute itself says, the “policy of the Congress” in

enacting the CWA was “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 … of land and

water resources.” 33 U.S.C. §1251(b) (emphasis

added). To that end, Congress considered and rejected

proposals to bring the seepage of pollutants through

groundwater within the scope of the CWA.

For

instance,

then-EPA-Administrator

Ruckelshaus specifically asked Congress to revise the

proposed statute to grant EPA “control over all the

sources of pollution, be they discharged directly into

any stream or through the ground water table.”

Hearings, supra, at 230 (emphasis added). And after

the

Committee

declined

to

“adopt

th[e]

recommendation” of several members to “provide[]

authority to establish Federally approved standards

for groundwaters which permeate rock[,] soil, and

other subsurface formations,” S. Rep. No. 92-414, at

73, a House member proposed an amendment “to

bring[] “ground water into the subject of the bill”

23

because “ground water gets into navigable waters.”

118 Cong. Rec. 10,666 (1972). The House rejected the

proposal overwhelmingly, by a 34-86 vote. 118 Cong.

Rec. 10,669.

The proposal was rejected not because anyone

denied the connection between groundwater and

navigable waters or that jurisdiction over

groundwater would be useful in regulating navigable

waters, but to preserve federalism. Congress “was

aware that there was a connection between ground

and surface waters,” yet unequivocally “[left] the

regulation of groundwater to the States.” Rice, 250

F.3d at 271-72. Particularly given that history, the

CWA cannot be read to achieve precisely the result

Congress worked so carefully to avoid based largely on

arguments Congress considered and rejected.

Interpreting the statute to reach discharges into soil

and groundwater would bring “virtually all planning

of the development and use of land and water

resources by the States under federal control,” and

“result in a significant impingement of the States’

traditional and primary power over land and water

use.” Rapanos, 547 U.S. at 737-38 (plurality opinion)

(quoting SWANCC, 531 U.S. at 174) (brackets and

ellipsis omitted). Congress manifestly did not intend

to effect such an “unprecedented intrusion into

traditional state authority.” Id. at 738.

Reading the CWA to cover the seepage of

pollutants through soil and groundwater also would

disrupt the statute’s fundamental and federalismpreserving distinction between point- and nonpointsource pollution. In addition to confining the CWA’s

permitting scheme to discharges into navigable

24

waters, Congress carefully confined the scheme to

discharges “from any point source,” defined as a

“discernible, confined and discrete conveyance” like a

pipe or tunnel. 33 U.S.C. §1362(12), (14). Like the

distinction between groundwater and navigable

water, the distinction between point and nonpoint

sources is pervasive throughout the CWA. The statute

expressly and repeatedly distinguishes between pointsource pollution, which it regulates, and nonpointsource pollution, which it leaves to the States and

other statutes.

For point sources, the CWA

establishes the NPDES permitting program, see 33

U.S.C. §1342; for nonpoint sources, the CWA gives the

States guidance on how to monitor such pollution, but

ultimately leaves the States free to undertake that

monitoring and remediation, id. §1329; see id.

§1251(a)(7) (urging States to adopt “programs for the

control of nonpoint sources of pollution”).

As this Court has made clear, the defining feature

of a point source is that it “transport[s]” or “convey[s]

the pollutant to navigable waters.” S. Fla. Water

Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S.

95, 105 (2004). The diffuse movement of pollutants

through groundwater plainly does not fit that bill. To

the extent discharges into soil or groundwater find

their way to navigable waters, the only thing that

“conveys” them is the groundwater itself. But for the

fact that groundwater moves, the discharge would

stay put. But diffuse groundwater is hardly a

“discernible, confined and discrete conveyance,” which

is why no court has embraced the position that

groundwater itself is a point source. To the contrary,

numerous courts have recognized that “[g]roundwater

seepage” is “nonpoint source pollution, which is not

25

subject to NPDES permitting.” El Paso Gold Mines,

421 F.3d at 1140 n.4; see also, e.g., App.62 (“The

migration of pollutants through soil and groundwater

is nonpoint source pollution that is not within the

purview of the CWA.”).

2.

The decision below misreads this

Court’s precedent and seeks to solve

a problem that does not exist.

Ignoring these critical distinctions, the decision

below reached a conclusion that cannot be squared

with the text, structure, or clear intent of the statute.

The majority below concluded that a discharge that

passes from a point source into groundwater, and then

passes on through a “direct hydrological connection”

into navigable waters, is covered by the CWA. App.26.

That is the equivalent of saying zero plus zero equals

one, and it makes no more sense as a legal proposition

than a mathematical one. The initial discharge from

the point source into groundwater is not covered by

the CWA because it is not a discharge “to navigable

waters.” 33 U.S.C. §1362(12). And the subsequent

migration of contaminated groundwater into

navigable waters is not covered either because it is not

a discharge “from any point source.” Id. It defies

reason to conclude that Congress carefully cabined the

CWA to disclaim federal jurisdiction over the first or

second step in this process, but imposed federal

regulation whenever the two steps happen in sequence

(as they almost always will).

Unsurprisingly, the decision below cannot be

squared with the statutory text. The CWA prohibits

discharges “to navigable waters,” not to “any water

with a direct hydrological connection to navigable

26

waters.” Id. It is no accident that both the Fourth and

Ninth Circuits had to introduce language into the

statute.4

Absent such limiting language, EPA’s

authority would truly be boundless. But Congress

omitted that language for a reason. The statute

properly read simply does not extend to groundwater

or give EPA every tool that might be useful in

regulating navigable waters. It provides authority to

regulate point-source discharges to navigable waters,

which was enough for Congress. Indeed, anything

more was deemed too much and too disruptive of the

States. By expanding the statute to embrace the very

proposal Congress rejected in passing the CWA, the

decision below upends the federal-state balance

Congress set and effects an “unprecedented intrusion

into traditional state authority.” Rapanos, 547 U.S. at

738 (plurality opinion).

Contrary to the Fourth Circuit’s contentions,

Rapanos does not support that result. In Rapanos,

this Court considered whether the “waters of the

United States” governed by the CWA included certain

wetlands. The Sixth Circuit found those wetlands

covered because there were “hydrological connections

between all three sites and corresponding adjacent

tributaries of navigable waters.” Id. at 730. This

Court reversed, with a four-Justice plurality

concluding that only wetlands with a “continuous

surface connection” to navigable waters are covered by

Even the Ninth Circuit recognized that a “direct hydrological

connection” standard “reads two words into the CWA (‘direct’ and

‘hydrological’) that are not there.” Hawai‘i Wildlife Fund, 886

F.3d at 749 n.3. But the Ninth Circuit’s “fairly traceable”

standard suffers from the exact same flaw.

4

27

the CWA, id. at 757, and Justice Kennedy concluding

that a “significant nexus” is required, id. at 759

(Kennedy, J., concurring in the judgment). The

plurality opinion explained that its narrower

interpretation was required by the statutory text, as

well as the need to preserve the federal-state balance

Congress intended. Id. at 731-39. The plurality also

explained that there was “no reason to suppose” its

interpretation would undermine enforcement of the

CWA because lower courts had read the statute to

apply “even if the pollutants discharged from a point

source do not emit ‘directly into’ covered waters, but

pass ‘through conveyances’ in between.” Id at 743.

As the context makes clear, the plurality was

making only the unremarkable point that a discharge

is covered by the CWA not only when the point source

discharges directly into navigable waters, but also

when the discharge travels through a series of

“conveyances”—i.e.,

other

point

sources—into

navigable waters. Id. A pipe that discharges to a

culvert that discharges to a ditch that discharges to

navigable water is still covered by the CWA, even

though that pipe itself does not discharge into the

stream. See id. (citing examples of discharges from

point sources into point-source conveyances leading to

navigable waters). That is manifestly not the same

thing as saying that discharges into soil or

groundwater—which are neither navigable waters nor

discrete conveyances into navigable waters—are

covered. On the contrary, the holding of Rapanos—

which reversed the Sixth Circuit for holding that

“hydrological connections” to nearby navigable waters

were enough to subject wetlands to the CWA—

forecloses the Fourth Circuit’s near-identical “direct

28

hydrological connection” test. Id. at 730-31, 757; id. at

784 (Kennedy, J., concurring in the judgment)

(rejecting “hydrologic connection” test).

The conclusion that discharges into soil and

groundwater are outside the scope of the CWA

certainly does not mean that polluters can evade

responsibility for their actions “by ensuring that all

discharges pass through soil and ground water before

reaching navigable waters.” App.25. Discharges into

soil and groundwater are subject to abundant

regulation. The CWA envisions that the States should

take the lead role in regulating soil and groundwater

pollution, instructing them to adopt programs (subject

to federal approval) to “control[] pollution added from

nonpoint sources to the navigable waters within the

State,” which all 50 States have done. 33 U.S.C.

§1329(b)(1); see supra pp.6-7. State regulation is

complemented by federal regulation as well: Both the

Resource Conservation and Recovery Act (“RCRA”), 42

U.S.C. §6901 et seq., and the Comprehensive

Environmental

Response,

Compensation,

and

Liability Act (“CERCLA”), 42 U.S.C. §9601 et seq.,

specifically address the control and remediation of

groundwater pollution.

See 42 U.S.C. §6903(3)

(“disposal” under RCRA includes discharge “into any

waters, including ground waters”); id. §9601(8)

(discharge into the “environment” under CERCLA

includes discharges into “ground water”). Faithfully

interpreting the CWA thus will not create any

loophole for creative polluters, as there is simply no

regulatory gap in need of filling.

By contrast, applying the CWA to discharges into

soil and groundwater will inject massive confusion

29

into an already-complex regulatory scheme. The

decision below provides no reliable definition of what

constitutes a “direct hydrological connection,” making

it impossible for regulated entities to know in advance

if any given discharge will need an NPDES permit.

Moreover, it is not at all clear how the NPDES

permitting scheme would work as applied to

discharges into soil or groundwater. The objective of

the permit is to set “effluent limitations” for how much

of a given pollutant may be discharged into navigable

waters. 33 U.S.C. §1311(b)(1)(A). That makes sense

in the context of discharges from point sources to

navigable waters, as effluent levels can easily be

measured at the point of discharge. But how does the

requirement apply when there is no point at which

pollutants are discharged into navigable waters—or,

as in this case, when there is not even an identifiable

discharge to measure? The obvious practical problems

with trying to impose the NPDES permitting program

on groundwater pollution confirm that Congress never

intended to fit that square peg into this round hole.

II. This Court Should Resolve The Circuit Split

Over Whether The Lingering Effects Of A

Long-Ago-Ceased Discharge Can Constitute

An “Ongoing Violation” Of The CWA.

The Fourth Circuit compounded the problems

with its “direct hydrological connection” test by

embracing a boundless “ongoing violation” rule.

According to the Fourth Circuit, a long-ceased

discharge into soil or groundwater constitutes an

“ongoing violation” of the CWA’s permitting

requirement so long as pollutants are continuing to

find their way into navigable waters. That conclusion

30

is flatly at odds with this Court’s decision in Gwaltney,

dramatically expands the CWA’s citizen-suit provision

far beyond what Congress intended, and ultimately is

just another illustration of the inevitable problems

with the Fourth Circuit’s mistaken focus on where

pollution ends up, rather than where and when it is

discharged.

This Court confronted the question of what

constitutes an “ongoing violation” of the CWA in

Gwaltney, a citizen suit by two environmental

advocacy groups against a meatpacking plant that had

repeatedly violated the terms of its NPDES permit in

the past. 484 U.S. at 53-54. There too, the Fourth

Circuit held the suit could proceed, reading the CWA

to authorize a citizen suit even when the unlawful

discharge “occurred only prior to the filing of [the]

lawsuit.” Id. at 56.

This Court reversed. By authorizing citizen suits

only when the defendant is alleged “to be in violation”

of the Act, the Court held, Congress intentionally

restricted private enforcement to situations involving

a “continuous or intermittent violation—that is, a

reasonable likelihood that a past polluter will continue

to pollute in the future.” Id. at 57. That interpretation

flowed not only from the statutory text, but from the

structure of the CWA as a whole, and its primary

reliance on the federal government and the States for

enforcement. Private suits are authorized only when

state or federal officials are not actively pursuing

matters, and when those officials are not suing

because the discharges have ceased, there is no valid

role for private suits. As the Court recognized,

allowing private citizens to sue for “wholly past

31

violations of the Act” would “undermine the

supplementary role envisioned for the citizen suit,”

turning it from a backstop measure for stopping

ongoing violations into an expansive license to

prosecute long-ago spills, and “would change the

nature of the citizens’ role from interstitial to

potentially intrusive.” Id. at 60-61. That result is

simply not what Congress intended. Id. at 61.

That result, however, is exactly what the decision

below invites. The majority recognized that under

Gwaltney, the CWA authorizes a citizen suit “only to

abate a ‘continuous or intermittent’ violation,” and

authorizes “‘prospective relief’ that only can be

attained while a violation is ongoing and susceptible

to remediation.” App.12-13 (quoting Gwaltney, 484

U.S. at 57, 64). That standard is manifestly not

satisfied here, as the leak here was fixed years before

respondents sued. To get around that problem, the

Fourth Circuit radically reconceptualized what

constitutes a violation of the CWA, insisting that the

CWA “does not require that the point source continue

to release a pollutant for a violation to be ongoing.”

App.15. Instead, the court concluded, the “relevant

violation” continues as long as there is an ongoing

“addition [of pollutants] to navigable waters”—that is,

as long as contaminants from the initial discharge

continue to percolate through groundwater to

navigable water, even if the discharge itself ceased to

be “ongoing” years earlier. App.15-16.

That marvel of linguistic gymnastics not only

flunks as a textual matter, but ignores all the

structural considerations that led the Gwaltney Court

to conclude the CWA does not countenance citizen

32

suits based on past violations. Allowing citizens to sue

for any past discharge as long as they can find some

trace of contamination that is still moving into

navigable waters would again “undermine the

supplementary role envisioned for the citizen suit.”

Gwaltney, 484 U.S. at 60. It would allow citizen suits

in situations where government officials are not

pursuing remedies, not for any lack of vigilance, but

for the rather obvious reason that the discharge has

ceased. That is not what this Court envisioned when

it decided Gwaltney, and is certainly not what

Congress envisioned when it enacted the CWA.

More fundamentally, the Fourth Circuit’s

dramatic expansion of what constitutes an ongoing

violation of the CWA is just a symptom of its radical

expansion of the CWA’s jurisdictional reach. It is

precisely because the “direct hydrological connection”

test eliminates the need for any actual discharge from

a point source into navigable waters that the Fourth

Circuit was able to find an “ongoing violation” without

any ongoing discharge. In the Fourth Circuit’s view,

so long as pollutants are “reaching navigable waters,”

the CWA applies. App.19, 26. That, of course, is not

remotely the statutory scheme Congress enacted.

Congress’ scheme prohibits only the unpermitted

“discharge of any pollutant … to navigable waters

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

lingering seepage through soil and groundwater of

pollutants from a long-ago-ceased spill cannot

plausibly be understood as an “ongoing discharge”

from the only plausible point source (the pipeline) to

navigable waters.

33

In addition to being flatly inconsistent with both

Gwaltney and the CWA, the decision below conflicts

with the Fifth Circuit’s decision in Hamker, as the

panel majority acknowledged. App.17-18 & n.9.

Hamker held that “a past discharge of oil … with

continuing negative effects,” does not constitute an

ongoing violation of the CWA. 756 F.2d at 394. Other

federal courts have taken the same view of the

“continuous or intermittent violation” requirement.

See, e.g., App.41-42 (citing cases); Day, LLC v.

Plantation Pipe Line Co., No. 2:16-cv-00429-LSC, 2018

WL 2572750, at *12 (N.D. Ala. June 4, 2018); Aiello v.

Town of Brookhaven, 136 F. Supp. 2d 81, 120-21

(E.D.N.Y. 2001); Wilson v. Amoco Corp., 33 F. Supp.

2d 969, 975 (D. Wyo. 1998) (acknowledging division of

authority, and holding that “migration of residual

contamination from previous releases does not

constitute an ongoing discharge”); accord Friends of

Santa Fe Cty. v. LAC Minerals, Inc., 892 F. Supp.

1333, 1354 (D.N.M. 1995).

Gwaltney and the decisions faithfully applying

that precedent have it right. Indeed, the decision

below creates an “even more disturbing anomaly” than

the one this Court refused to create in Gwaltney. 484

U.S. at 60. For the reasons explained, the CWA should

not be interpreted to extend to discharges into soil or

groundwater at all. See supra pp.15-29. But if the

statute is to stretch that far, then at the very least it

must be limited to cases where the point source is

actually discharging pollutants, not extended to any

and every past discharge where some pollutant may

still linger near a stream.

34

III. The Questions Presented Are Exceptionally

Important And Have Wide-Ranging Impact.

The questions presented have implications far

beyond this case. If left intact, the Fourth Circuit’s

decision will expand the NPDES permitting program

to countless sources that have operated for years

without any suggestion that they might require an

NPDES permit. And the owners of those suddenly

regulated

sources—including

businesses

and

municipalities running wastewater treatment plants,

infrastructure projects that use stormwater or

recycled water to restore depleted groundwater levels,

and even the millions of homeowners with septic tank

systems—could face crippling civil penalties for failing

to obtain a costly and never-before-required permit.

That “immense expansion of federal regulation” to

millions of previously unregulated parties, without

any clear congressional authorization or fair warning

to the parties affected, readily warrants this Court’s

review. Rapanos, 547 U.S. at 722 (plurality opinion);

cf. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427,

2444 (2014) (reversing decision that would work “an

enormous and transformative expansion in EPA’s

regulatory authority without clear congressional

authorization”).

The decision below also creates enormous

uncertainty for individuals and entities attempting to

determine whether sources they own are covered. The

decision provides little if any practical guidance on

how to determine whether an alleged “hydrological

connection” between a point source and a navigable

water is sufficiently “direct.” See App.22-26. Instead

of providing the “clarity and predictability” that is

35

vitally important in this regulatory context, see

Sackett v. EPA, 566 U.S. 120, 133 (2012) (Alito, J.,

concurring), the standard adopted below will ensure

the only certainty is increased regulatory confusion.

That is especially problematic in this context, since

obtaining an NPDES permit imposes substantial

burdens and costs. See Hawkes, 136 S. Ct. at 1812,

1815. Immediate review will end that uncertainty and

save potentially regulated parties from being forced to

choose between obtaining a costly permit they should

not need and risking massive penalties for things the

CWA was not meant to cover.

Granting review also will avoid incalculable

amounts of unnecessary work for regulators in

attempting to devise new NPDES permits to regulate

groundwater pollution. As Judge Floyd observed in

dissent, the NPDES permitting program is hopelessly

“ill-equipped to address … nonpoint source pollution.”

App.36. The permits are designed to impose “effluent

limitations” on “discernible, confined and discrete

conveyance[s],” 33 U.S.C. §1362(12), not to regulate

discharges into groundwater followed by seepage

through diffuse underground geological channels. It

is likewise unclear how courts can craft appropriate

remedies for the alleged seepage of pollutants through

groundwater under the CWA—particularly when the

CWA is radically expanded to treat that seepage as an

“ongoing violation” even in the absence of any ongoing

discharge. This is a case in point. How exactly Kinder

Morgan is supposed to apply for a permit for the

lingering seepage of long-ago-spilled gasoline through

soil and groundwater, respondents have never

explained.

36

The answer, of course, is that respondents have

not invoked the CWA in hopes of requiring Kinder

Morgan to obtain a permit. They have invoked the

CWA in hopes of getting a federal court to seize control

over the ongoing state-supervised remediation of the

spill, despite having already exercised their

opportunity to provide input into the remediation

through the state-provided comment period. The

recent TVA case is also instructive. There, too,

plaintiffs brought suit under the CWA complaining

about the adequacy of state efforts to address the

seepage of pollutants through groundwater in the

absence of any ongoing discharge—in that case, the

seepage of lingering pollutants underneath a long-agoclosed dry ash disposal site that is now a heavily

vegetated plot of land. After the district court sided

with the plaintiffs, the court did not order TVA to get

an NPDES permit; it instead ordered TVA to

“excavate the coal ash waste” from the soil and

groundwater entirely. 273 F. Supp. 3d at 848. That

may be an appropriate remedy under RCRA,

CERCLA, or their state-law analogs, but it makes no

sense whatsoever under the NPDES permitting

program.

The decision below thus not only will force

regulated entities to waste substantial resources

applying for NPDES permits in circumstances that

Congress never intended, but ultimately will allow the

NPDES permitting scheme to swallow whole the

myriad other state and federal regulatory schemes

designed to address environmental remediation.

Congress never intended the CWA’s permitting

requirement to solve all the nation’s pollution

problems. It intended that scheme to address one—

37

and only one—type of pollution: the discharge of

pollutants from a point source into navigable waters.

This Court should grant certiorari to resolve the

conflicts to which the decision below contributes and

to restore the CWA to its intended scope.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

ERIN E. MURPHY

C. HARKER RHODES IV

LAUREN N. BEEBE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

paul.clement@kirkland.com

Counsel for Petitioners

August 28, 2018