Amicus Curiae Brief — Kinder Morgan Energy Partners, L.P., et al., Petitioners v. Upstate Forever, et al.

No. 18-268

In the Supreme Court of the United States

KINDER MORGAN ENERGY PARTNERS, L.P. and

PLANTATION PIPE LINE COMPANY, INC.,

PETITIONERS,

v.

UPSTATE FOREVER and SAVANNAH RIVERKEEPER,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF WEST

VIRGINIA, 18 OTHER STATES, AND THE

GOVERNORS OF KENTUCKY AND

MISSISSIPPI IN SUPPORT OF PETITIONERS

PATRICK MORRISEY

Attorney General

LINDSAY S. SEE

Solicitor General

Counsel of Record

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

STATE CAPITOL COMPLEX

BUILDING 1, ROOM E-26

CHARLESTON, WV 25305

LINDSAY.S.SEE@WVAGO.GOV

(304) 558-2021

ZACHARY A. VIGLIANCO

THOMAS T. LAMPMAN

Assistant Attorneys

General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed at end]

QUESTION PRESENTED

Whether the Clean Water Act’s prohibition on the

discharge of pollutants and associated permitting

regime apply only to discharges conveyed from a point

source into “the waters of the United States,” or

whether they also apply to discharges into

groundwater or soil that eventually migrate to

jurisdictional waters?

ii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

INTRODUCTION AND INTERESTS

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

REASONS FOR GRANTING

THE PETITION ....................................................5

I.

The Decision Below Thwarts Congress’s

Intent In The CWA To Maintain The States’

Primary Authority Over Intrastate Water

Resources...............................................................5

A. This Court’s review is necessary to

restore the CWA’s textual and structural

limitations. ......................................................5

B. The decision below will impose

significant and unworkable bureaucratic

burdens on state environmental

protection agencies. ...................................... 11

II. Only This Court Can Resolve Lower Courts’

Disagreement Whether The CWA Reaches

Discharges That Migrate To Navigable

Waters Through Groundwater. .......................... 16

III. Proper Interpretation Of The CWA Will Not

Leave Groundwater or Connected Surface

Water Unprotected. ............................................ 21

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

iii

TABLE OF AUTHORITIES

Cases

Page(s)

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

Water Pollution Control Auth.,

2017 WL 2960506 (D. Conn. July 11, 2017) ...........9

Am. Farm Bureau Fed’n v. E.P.A.,

792 F.3d 281 (3d Cir. 2015) .....................................9

Appalachian Power Co. v. Train,

545 F.2d 1351 (4th Cir. 1976)..................................9

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ................................................ 2, 5

Cappaert v. United States,

426 U.S. 128 (1976) ................................................ 10

Exxon Corp. v. Train,

554 F.2d 1310 (5th Cir.1977)....................... 7, 10, 19

Georgia v. Pruitt,

2018 WL 2766877 (S.D. Ga. June 8, 2018) .............6

Hawai’i Wildlife Fund v. County of Maui,

886 F.3d 737 (9th Cir. 2018).............. 2, 8, 10, 16, 17

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ..................................................8

Kansas v. Nebraska,

135 S. Ct. 1042 (2015)..............................................1

iv

TABLE OF AUTHORITIES

(continued)

Ky. Waterways Alliance v. Ky. Utils Co.,

--- F.3d. ---, 2018 WL 4559315 (6th Cir. Sept. 24,

2018) ..................................... 8, 12, 15, 16, 17, 18, 22

Martin v. Waddell’s Lessee,

41 U.S. 367 (1842) ....................................................1

Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007) ................................................ 12

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

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

Rapanos v. United States,

547 U.S. 715 (2006) ............................................ 7, 11

Rice v. Harken Expl. Co.,

250 F.3d 264 (5th Cir. 2001).................. 7, 16, 19, 20

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

--- F.3d. ---, 2018 WL 4343513 (4th Cir. Sept. 12,

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

Simsbury-Avon Pres. Club, Inc. v. Metacon Gun

Club, Inc.,

575 F.3d 199 (2d Cir. 2009) .....................................9

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers

531 U.S. 159 (2001) ............................................... 11

v

TABLE OF AUTHORITIES

(continued)

State ex rel. Smith v. Kermit Lumber & Pressure

Treating Co.,

200 W. Va. 221, 488 S.E.2d 901 (1997) ................. 21

Tennessee Clean Water Network v. Tennessee Valley

Authority,

--- F. 3d. ---, 2018 WL 4559103 (6th Cir. Sept. 24,

2018) ................................................................. 16, 17

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

136 S. Ct. 1807 (2016)...................................... 12, 14

United States v. Alaska,

521 U.S. 1 (1997)......................................................1

United States v. Cooper,

482 F.3d 658 (4th Cir. 2007)....................................6

Upstate Forever v. Kinder Morgan Energy Partners,

L.P.,

887 F.3d 637 (4th Cir. 2018).................... 2, 8, 16, 17

Vill. of Oconomowoc Lake v. Dayton Hudson Corp.,

24 F.3d 962 (7th Cir. 1994)................ 7, 8, 16, 18, 19

Waterways Alliance v. Ken. Utils Co.,

303 F. Supp.3d 530 (E.D. Ky. 2017) ........................8

Statutes

33 U.S.C. §2701 ......................................................... 19

33 U.S.C. § 1251 .............................. 1, 2, 5, 6, 9, 11, 12

vi

TABLE OF AUTHORITIES

(continued)

33 U.S.C. § 1342 ........................................................ 12

33 U.S.C. § 1362 ...................................................... 6, 8

33 U.S.C. § 1370 ........................................................ 22

33 U.S.C § 1311 ...........................................................6

42 U.S.C. § 300f ......................................................... 21

42 U.S.C. § 300h ........................................................ 21

42 U.S.C. § 6973 ........................................................ 22

42 U.S.C. § 9604 ........................................................ 22

Ariz. Rev. Stat. § 49-203 ........................................... 23

Ariz. Rev. Stat. § 49-223 ........................................... 23

Ariz. Rev. Stat. § 49-224 ........................................... 23

Colo. Rev. Stat. §25-8-501 ......................................... 23

Colo. Rev. Stat. § 25-8-103 ....................................... 23

Ky. Rev. Stat. § 224.1-300 ......................................... 24

Ky. Rev. Stat. § 224.70-110 ....................................... 24

Mich. Comp. Laws § 324.3101 .................................. 24

Mich. Comp. Laws § 324.3109 .................................. 24

S.C. Code § 48-1-90 ................................................... 25

vii

TABLE OF AUTHORITIES

(continued)

W. Va. Code § 22-11-3 ............................................... 23

W. Va. Code § 22-11-8 ............................................... 23

W. Va. Code § 22-12-4 ............................................... 23

Regulations

40 C.F.R. § 144.12 ..................................................... 21

71 Fed. Reg. 65,509 ................................................... 20

81 Fed. Reg. 31,344 ................................................... 12

1

INTRODUCTION AND

INTERESTS OF AMICI CURIAE 1

Preserving, regulating, and maintaining the

natural bounty within their borders is a primary

responsibility of every State. Although true for any

natural resource, that duty (and attendant power) is

particularly acute with respect to water. This Court

has repeatedly held, for instance, that the States’

“power to control . . . fishing, and other public uses of

water” is “an essential attribute of [their]

sovereignty.” United States v. Alaska, 521 U.S. 1, 5

(1997); Kansas v. Nebraska, 135 S. Ct. 1042, 1067

(2015) (“Authority over water is a core attribute of

state sovereignty”); see also Martin v. Waddell’s

Lessee, 41 U.S. 367, 410 (1842) (explaining that as

successors to the English crown in the wake of the

American Revolution, “each state became themselves

sovereign; and in that character hold[s] the absolute

right to all their navigable waters, and the soils under

them, for their own common use”).

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

seq., was designed to complement—not usurp—the

States’ role as primary stewards of the environment.

While the overall purpose of the CWA is to “restore

and maintain the chemical, physical, and biological

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

Congress also expressly “recognize[d], preserve[d],

and protect[ed]” the “primary responsibilities and

1 Pursuant to Supreme Court Rule 37.2(a), amici have timely

notified counsel of record of their intent to file an amicus brief in

support of the Petitioners.

2

rights of [the] States” in this realm, 33 U.S.C.

§ 1251(b) (emphasis added). Thus, at the same time

Congress established the CWA’s federal regulatory

framework, it made clear that the States retained

their traditional authority “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). The CWA therefore reflects a “careful

balanc[ing] [of] competing policies and interests”

specifically designed to protect the “sovereign

interests of the States.” Arkansas v. Oklahoma, 503

U.S. 91, 106-07 (1992).

Left uncorrected, the decision below, Upstate

Forever v. Kinder Morgan Energy Partners, L.P., 887

F.3d 637 (4th Cir. 2018), together with the Ninth

Circuit’s similar, recent decision in Hawai’i Wildlife

Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018),

would upend a critical component of this balance. The

Fourth Circuit’s decision—based on a standard

divorced from the CWA’s text, structure, and intent—

would greatly expand the scope of waters subject to

federal jurisdiction and the CWA’s regulatory

requirements. This decision deepens a growing divide

among lower courts, and infringes on the sovereign

prerogative of States to manage their water

resources—especially those such as groundwater that

are often wholly intrastate. It also threatens to

impose an unnecessary and unworkable bureaucratic

burden on state environmental protection agencies at

the expense of those entities’ important, ongoing

conservation efforts.

3

Amici curiae—the States of West Virginia,

Alabama, Arkansas, Colorado, Georgia, Idaho,

Indiana, Kansas, Kentucky, Louisiana, Michigan,

Nebraska, Nevada, Oklahoma, South Carolina,

Texas, Utah, Wisconsin, and Wyoming, and the

Governors of Kentucky and Mississippi—have

important interests in both ensuring the safety and

quality of their water resources and in preventing

unlawful incursions upon their sovereignty. Each

amici State enforces its own statutory and regulatory

regimes designed to protect, conserve, and develop its

water resources for the public good. The Fourth

Circuit’s unjustified expansion of the CWA’s

jurisdictional breadth will significantly burden—if

not effectively displace—those protective measures.

Amici recognize that the CWA is a vital tool for

protecting the health and utility of our nation’s water

resources. But it is far from the only regulatory

regime that combats water pollution, and it

represents an unwieldy and impractical mechanism

by which to regulate and protect groundwater and

other intrastate water resources. Amici urge this

Court to grant certiorari, repudiate the flawed and

overreaching decision below, and restore the proper

balance between state and federal regulation that the

CWA—correctly read—demands.

SUMMARY OF ARGUMENT

Certiorari is warranted for at least the following

three reasons:

4

First, the text and structure of the CWA reflect

Congress’s intent to implement a regulatory

framework that respects the primary responsibility of

States to manage and preserve their water resources.

By limiting the jurisdictional reach of the CWA to

pollutants discharged from “point sources” into “the

waters of the United States,” Congress left largely

undisturbed the States’ traditional power to regulate

and combat pollution of intrastate water resources,

such as groundwater. The decision below threatens

this textually enshrined balance of state and federal

authority, expanding the CWA’s jurisdictional reach

beyond recognition. And because the vast majority of

States have assumed responsibility for implementing

the CWA’s permitting regime that regulates

discharges conveyed by point sources, the burdens

imposed by this expansion will fall predominantly on

the States and their environmental protection

agencies—and in all likelihood, drain resources that

would otherwise be available for enforcing other statelevel environmental laws.

Second, despite universal agreement that

groundwater does not itself fall within the ambit of

“the waters of the United States,” there is a growing

split of authority on whether discharges into nonqualifying waters may nonetheless be swept up by the

CWA if they pass through groundwater and

eventually reach jurisdictional waters. The decision

below—like the Ninth Circuit’s County of Maui

decision—flouts the CWA’s textual limits by holding

that they can. Only this Court can correct this

5

unwarranted expansion of the CWA and restore

uniformity as to its proper scope.

Finally, the flawed approach of the court below is

unnecessary to protect our nation’s water resources—

either surface or ground. There is no denying the

connection between groundwater and surface waters.

Nevertheless, consistent with the “cooperative

federalism” framework baked into the CWA, the

States extensively regulate groundwater pollution,

thereby helping to protect all the waters into which

they flow as well. Additionally, other federal statutes

are specifically tailored to combat and regulate

potential groundwater contamination. Allowing the

decision below to stand undermines these protective

measures and adds new, unncessary strain on the

limited resources of the States.

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Thwarts Congress’s

Intent In The CWA To Maintain The States’

Primary Authority Over Intrastate Water

Resources.

A. This Court’s review is necessary to

restore the CWA’s textual and structural

limitations.

The Fourth Circuit’s decision is both textually and

precedentially unmoored.

As this Court has

explained, “[t]he Clean Water Act anticipates a

partnership between the States and the Federal

Government, animated by a shared objective:

[R]estor[ation] and maintain[ence] [of] the chemical,

6

physical, and biological integrity of the Nation’s

waters.” Arkansas, 503 U.S. at 101 (citing 33 U.S.C.

§ 1251(a)). This partnership makes the CWA one of

the

paradigmatic

examples

of

“cooperative

federalism.” See, e.g., United States v. Cooper, 482

F.3d 658, 667 (4th Cir. 2007). Indeed, this conclusion

is unavoidable in light of the statute’s plain text,

where Congress expressly affirmed the “primary

responsibilities and rights of [the] States” to regulate

pollution and preserve both “land and water

resources.” 33 U.S.C § 1251(b).

The language and structure of the CWA illustrate

how Congress intended this cooperative, two-tiered

regulatory framework to work. As the centerpiece of

the federal portion of this scheme, the National

Pollutant Discharge Elimination System (“NPDES”)

establishes a general prohibition on the discharge of

pollutants into the nation’s waters.

33 U.S.C

§ 1311(a) (providing that “[e]xcept as in compliance

[with various other sections of the CWA] . . . the

discharge of any pollutant by any person shall be

unlawful”). Critically, however, the jurisdictional

breadth of this program is limited in at least two ways

that flow from the statutory definition of “discharge of

a pollutant,” which is “any addition of any pollutant to

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

§ 1362(12).

First, a “discharge of a pollutant” occurs only

when a qualifying substance is added to “navigable

waters,” 33 U.S.C. § 1362(12), which, in turn, is

defined as “the waters of the United States,” 33 U.S.C.

7

§ 1362(7). The precise breadth of “the waters of the

United States” is an open question. See, e.g., Georgia

v. Pruitt, 2018 WL 2766877 (S.D. Ga. June 8, 2018)

(granting preliminary injunction against enforcement

of 2015 definition of “the waters of the United States”);

83 Fed. Reg. 32,227 (July 12, 2018) (supplemental

notice of proposed rulemaking regarding the

definition of “Waters of the United States”).

Nevertheless, this Court has been clear that “the

waters of the United States” does not “refer to water

in general,” but instead encompasses only “relatively

permanent, standing or flowing bodies of water” such

as “streams, oceans, rivers, lakes, and bodies of water

forming geographical features.” Rapanos v. United

States, 547 U.S. 715, 732-33 (2006) (Scalia, J.,

plurality op.); id. at 778 (Kennedy, J., concurring)

(rejecting conception of “navigable waters” that would

“permit federal regulation [of water] alongside a ditch

or drain, however remote and insubstantial, that

eventually may flow into traditional navigable

waters”); see also Vill. of Oconomowoc Lake v. Dayton

Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994)

(“‘Waters of the United States’ must be a subset of

‘water’; otherwise why insert the qualifying clause in

the statute?”).

Notably, groundwater—which encompasses as

much as 98% of the Earth’s “accessible fresh water”2—

falls outside this definition. See, e.g., Rice v. Harken

2 Vandas, Winter & Battaglin, Water and the Environment 4,

American Geological Institute (2002), available at http://

www.agiweb.org/environment/publications/water.pdf.

8

Expl. Co., 250 F.3d 264, 269 (5th Cir. 2001) (citing

Exxon Corp. v. Train, 554 F.2d 1310, 1322 (5th

Cir.1977)); Oconomowoc Lake, 24 F.3d at 965; Ken.

Waterways Alliance v. Ken. Utils Co., 303 F. Supp.3d

530, 542 (E.D. Ky. 2017) (collecting authority and

explaining that “[c]ourts have overwhelmingly found

that groundwater, even if hydrologically connected to

navigable waters, is not itself a navigable water under

the CWA”). Cf. Int’l Paper Co. v. Ouellette, 479 U.S.

481, 486 (1987) (“the [CWA] applies to virtually all

surface water in the country”) (emphasis added). Not

even the court below—nor the Ninth Circuit in County

of Maui—purports to cross this statutory line. See

Kinder Morgan, 887 F.3d at 652 (“We do not hold that

the CWA covers discharges to ground water itself.”);

Cty. of Maui, 886 F.3d at 746 n.2 (“We assume

without deciding the groundwater here is neither a

point source nor a navigable water under the CWA.”).

Second, a discharge must be conveyed to

jurisdictional waters by a “point source,” that is, “any

discernible, confined and discrete conveyance.” 33

U.S.C. § 1362(14). Each of these descriptors matter.

Every example in the statute’s nonexhaustive list of

point sources—“any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure, container, rolling stock,

concentrated animal feeding operation, or vessel or

other floating craft, from which pollutants are or may

be discharged,” 33 U.S.C § 1362(14)—is a readily

identifiable and discrete object or feature capable of

channeling and transporting pollutants to navigable

waters. Groundwater is none of these things; instead

of being “discernible, confined and discrete,” by its

9

very nature it is diffuse and amorphous.

Ky.

Waterways Alliance v. Ky. Utils Co., --- F.3d. ---, 2018

WL 4559315, at *6 (6th Cir. Sept. 24, 2018) (“By its

very nature, groundwater is a ‘diffuse medium’ that

seeps in all directions”); 26 Crown Assocs., LLC v.

Greater New Haven Reg’l Water Pollution Control

Auth., 2017 WL 2960506, at *8 (D. Conn. July 11,

2017) (“It is basic science that ground water is widely

diffused by saturation within the crevices of

underground rocks and soil.”) (citation omitted).

As courts routinely recognized before the recent

Fourth and Ninth Circuit decisions, in the CWA

“Congress consciously distinguished between point

source and nonpoint source discharges, giving EPA

authority under the Act to regulate only the former.”

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

(4th Cir. 1976) (emphasis added). To be sure, the

CWA reaches some indirect discharges into navigable

waters, such as where a pollutant (whatever its

origin) is conveyed by a series of point sources—a pipe,

for example, then a drainage ditch, and so on—before

eventually reaching “the waters of the United States.”

Pollution that is conveyed to jurisdictional water by a

nonpoint source, however, is outside the scope of the

NPDES permitting regime: The CWA “clearly

indicates that there is a category of nonpoint source

pollution,” and leaves its regulation “to the states.”

Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club,

Inc., 575 F.3d 199, 219 (2d Cir. 2009) (citing 33 U.S.C.

§ 1251(a)(7)) (emphasis added); see also Oregon Nat.

Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 780

(9th Cir. 2008) (“The CWA’s disparate treatment of

10

discharges from point sources and nonpoint sources is

an organizational paradigm of the Act.”); Am. Farm

Bureau Fed’n v. E.P.A., 792 F.3d 281, 299 (3d Cir.

2015) (“[T]he [CWA] assigns the primary

responsibility for regulating point sources to the EPA

and nonpoint sources to the states.”).

Individually and in concert, these two textual

limits cabin the CWA’s jurisdiction. By default,

discharges into groundwater do not require NPDES

permits, because groundwater is not part of “the

waters of the United States.” Neither do discharges

that seep into the ground and are eventually conveyed

to navigable waters via migration through

groundwater—because groundwater is also not a

point source.

The standard announced by the Fourth Circuit

would replace this text-based reading with an

infinitely elastic theory of CWA jurisdiction. As this

Court recognized almost half a century ago, it is

readily apparent that “[s]urface water and

groundwater systems are connected in most

landscapes.” Vanas et. al., supra n.2, at 26; see

Cappaert v. United States, 426 U.S. 128, 142 (1976);

see also Exxon Corp. v. Train, 554 F.2d 1310, 1325

(5th Cir. 1977) (discussing material in the CWA’s

legislative history documenting the “essential link

between ground and surfaces waters”). The practical

effect of the analysis below—that federal jurisdiction

attaches whenever a “direct hydrological connection”

can be established between groundwater and

“navigable waters,” Kinder Morgan, 887 F.3d at 651—

11

is thus to extend the reach of the CWA not only to

virtually all of the nation’s waters, but to any land

capable of absorbing water as well.

This sprawling jurisdictional creep has no

grounding in either the statute or this Court’s

precedent. In Rapanos, for instance, Justice Scalia’s

plurality opinion rejected the “expansive theory” of

federal jurisdiction advanced by the Army Corps of

Engineers in part because adopting it would have

placed “virtually all” planning as to the “development

and use . . . of land and water resources” under federal

control. 547 U.S. at 737. As Justice Scalia explained,

such a result would be at odds with Congress’s express

intent to preserve “the primary rights and

responsibilities of the States” under the CWA. 33

U.S.C. § 1251(b). The same concern animated this

Court’s decision in Solid Waste Agency of Northern

Cook County v. U.S. Army Corps of Engineers, where

it rejected another unduly far-reaching formulation of

“the waters of the United States” that would have

“result[ed] in a significant impingement of the States’

traditional and primary power over land and water

use.” 531 U.S. 159, 174 (2001). As it did in both those

instances, this Court should intervene here to reverse

an unwarranted expansion of the CWA.

B. The

decision

below

will

impose

significant

and

unworkable

bureaucratic

burdens

on

state

environmental protection agencies.

This Court’s intervention is also needed because

the Fourth Circuit’s misreading of the CWA has

12

significant consequences for the States. Although

NPDES permitting is the centerpiece of the CWA’s

federal regulatory framework, as a practical matter,

the States largely implement that program. See 33

U.S.C. § 1342(b); Nat’l Ass’n of Home Builders v. Defs.

of Wildlife, 551 U.S. 644, 650 (2007) (explaining that

although the EPA has the initial responsibility for

administering the NPDES permitting system, a

“State may apply for a transfer of permitting

authority to state officials”). Congress expressly

designed the CWA to operate this way, explaining its

goal that the States should “implement the [NPDES]

permit programs.” 33 U.S.C. § 1251(b). And that

intent has been largely realized: 46 States have

sought and received authority to implement the

NPDES permitting regime pursuant to Section

1342(b). 81 Fed. Reg. 31,344-01; see also 71 Fed. Reg.

65,509-01 (table outlining when each State obtained

EPA approval to issue and oversee NPDES

permitting); see also Kentucky Waterways, --- F.3d

---, 2018 WL 4559315, at *2 n.1.

Because the vast majority of States have assumed

primary responsibility over NPDES, the burdens from

expanding that regime’s scope would fall directly on

the States and state environmental protection

agencies. This Court has previously acknowledged

that the NPDES permitting process is “arduous,

expensive, and long.” U.S. Army Corps of Eng’rs v.

Hawkes Co., 136 S. Ct. 1807, 1815 (2016). As it

stands, state environmental protection agencies

already spend nearly 1.6 million hours and nearly 70

13

million dollars each year processing NPDES permits.3

Those numbers are likely to increase by several orders

of magnitude if this Court allows the Fourth Circuit’s

“direct hydrological connection” test to stand.

As one example, home septic systems typically

discharge pollutants (as the term is broadly defined in

the CWA) into groundwater, but homeowners have

not historically been required to apply for an NPDES

permit.

Under the Fourth Circuit’s standard,

however, a home septic system could qualify as a point

source requiring an NPDES permit wherever it can be

shown that its discharges migrate through

groundwater and eventually reach jurisdictional

waters. The potential scope of such liability is vast.

Given the EPA’s estimate that approximately 25% of

American homes rely on septic systems,4 adoption of

the Fourth Circuit’s standard could increase the

number of NPDES permits by roughly 220,000 in

West Virginia alone.5

This represents an

astronomical 35,000% increase over the number of

NPDES permits—607—issued by West Virginia in

3 See EPA ICR No. 0229.21 Supporting Statement, Information

Collection Request for National Pollutant Discharge Elimination

System (NPDES) Program (Renewal), EPA ICR at *17, tbl. 12.1

(Dec. 2015), available at https://www.reginfo.gov/public/do/

DownloadDocument?objectID=60917402.

4 EPA, Do your Part—Be SepticSmart! 2 (Sept. 2012), available

at https://www.epa.gov/sites/production/files/2015-06/documents

/septicsmart_longhomeownerguide_english508_0.pdf.

5 See United States Census Bureau, QuickFacts West Virginia,

https://www.census.gov/quickfacts/fact/table/wv/PST045217

(estimating current population of West Virginia to be 1,815,857).

14

fiscal year 2017,6 and that accounts for only one

potential new category of point sources that would, for

the first time, be subject to the NPDES permitting

regime.

The same result could hold for wastewater

treatment plants and other relatively common

underground injection wells. Municipalities and

other entities use more than 650,000 wells nationwide

in the process of purifying and reusing wastewater,

and around 180,000 wells to facilitate oil and gas

mining. See generally EPA, Protecting Underground

Sources of Drinking Water from Underground

Injection (UIC), available at https://www.epa.gov/uic.

Even though both categories of wells are already

subject to a variety of state and federal regulations,

see id., under the Fourth Circuit’s standard they could

be required to obtain NPDES permits or face liability.

See Pet. for Cert., 6-7, 10, 13-14, Cty. of Maui v.

Hawai’i Wildlife Fund, No. 18-260. The Fourth

Circuit’s approach could extend the jurisdictional

scope of the CWA to untold other sources as well—

irrigation systems, underground storage tanks that

spring a leak, mine sites undergoing voluntary state

cleanup programs, and others.

What is more, the diffuse nature of groundwater

dispersal means that States likely would not be able

to complete this torrent of new NPDES permitting

6 West Virginia Department of Environmental Protection, Fiscal

Year 2016-17 Annual Report 2, available at https://dep.wv.gov/

pio/Documents/2016-17%20Annual%20Report.pdf.

15

tasks with any clarity, and certainly not without

considerable, unjustifiable cost. Groundwater may (or

may not) seep through many feet of soil and take

multiple directions before ultimately reaching

jurisdictional waters, and the direction and speed of

flow depend on geography and gravity, not design. Cf.

Kentucky Waterways, --- F.3d ---, 2018 WL 4559315, at

*6 (“One cannot look at groundwater and discern its

precise contours as can be done with traditional point

sources like pipes, ditches, or tunnels”). These factors

would make it extremely challenging to draft a permit

with precise discharge parameters, much less monitor

compliance. It is one thing to measure outflow from a

pipe into navigable waters to ensure discharge levels

are compliant with an NPDES permit; it is quite

another to track the volume of pollutants that reach

navigable waters after seeping into the ground and

joining the subsurface network of groundwater flows.

At a minimum, States overseeing an NPDES regime

that applies to groundwater would likely need to

repeatedly produce or procure, at considerable time

and expense, the environmental impact studies

necessary to develop the data that might (or might

not) enable them to regulate with any kind of

precision, coherence, and scientific integrity.

All told, the Fourth Circuit’s standard threatens

to drown state environmental protection agencies in a

myriad of new and technologically challenging

NPDES permit requirements from a novel source of

federal liability, and leech away scarce resources from

other programs better equipped to address

groundwater pollution. See Part III, infra. Congress

16

did not intend to foist such burdens on the States, and

this Court should not countenance them either.

II. Only This Court Can Resolve Lower Courts’

Disagreement Whether The CWA Reaches

Discharges That Migrate To Navigable

Waters Through Groundwater.

The decision below is the second time this year

that a federal appellate court has held that the CWA’s

regulatory framework applies to discharges that only

indirectly reach navigable waters via groundwater

migration. Kinder Morgan, 887 F.3d at 650-51; Cty.

of Maui, 886 F.3d at 747, 749. These conclusions

conflict with at least two earlier decisions from the

Seventh and Fifth Circuits. See Oconomowoc Lake,

24 F.3d at 964 (Seventh Circuit); Rice, 250 F.3d at 269

(Fifth Circuit). And division among the lower courts

has only continued to grow: Since the Petition was

filed, the Sixth Circuit issued decisions in a pair of

companion cases expressly rejecting the Ninth and

Fourth Circuits’ analysis. Kentucky Waterways, --F.3d ---, 2018 WL 4559315; Tennessee Clean Water

Network v. Tennessee Valley Authority, --- F. 3d. ---,

2018 WL 4559103 (6th Cir. Sept. 24, 2018). The Court

should grant the Petition to resolve this disagreement

over the meaning of a statute with critical

implications for the States and the nation as a whole.

Below, the Fourth Circuit held that the CWA

“does not require a discharge [to be] directly to

navigable waters”; it is enough if “a point source is the

starting point or cause of a discharge” and a “direct

hydrological connection” exists between the point

17

source and jurisdictional waters. Kinder Morgan, 887

F.3d at 650-51 (emphasis added). Similarly, in County

of Maui, the Ninth Circuit held that the jurisdictional

scope of the CWA encompasses “an indirect discharge

from a point source to a navigable water” when that

discharge is “fairly traceable from the point source to

a navigable water.” 886 F.3d at 747, 749.

Just last week, the Sixth Circuit unequivocally

repudiated both approaches. Kentucky Waterways,

--- F.3d ---, 2018 WL 4559315, at *5 (“[W]e disagree

with the decisions from our sister circuits in Kinder

Morgan and County of Maui”) (citations omitted).

Both Kentucky Waterways and Tennessee Clean Water

involved a claim that discharges from power plant coal

ash collection ponds traveled through groundwater to

jurisdictional waters. Kentucky Waterways, --- F.3d

---, 2018 WL 4559315 at *3-5, Tennessee Clean Water,

--- F.3d ---, 2018 WL 4559103 at *2-4. The plaintiffs

in Kentucky Waterways argued that groundwater

qualified as a point source and alternatively embraced

the “hydrological connection” view to establish CWA

jurisdiction over the collection ponds; the Tennessee

Clean Water plaintiffs relied solely on the

“hydrological connection” theory.

Kentucky

Waterways, --- F.3d ---, 2018 WL 4559315 at *5;

Tennessee Clean Water, --- F.3d ---, 2018 WL 4559103

at *5 n.5.

The Sixth Circuit flatly rejected these claims.

“[T]he text and statutory context of the CWA make [it]

clear” that “the CWA does not extend its reach” to

discharges into groundwater. Kentucky Waterways,

18

--- F.3d ---, 2018 WL 4559315 at *5; see also id. at *7

(“The CWA’s text also forecloses the hydrological

connection theory”). The court explained that the

power plant at issue was discharging pollutants into

groundwater and that the groundwater, in turn, was

“adding pollutants to [jurisdictional waters].” Id. --F.3d ---, 2018 WL 4559315 at *7. Nevertheless, the

court further explained, “groundwater is not a point

source.” Id. Thus, the court conclude, “when the

pollutants [enter] the [waters of the United States],

they are not coming from a point source; they are

coming from groundwater, which is a nonpoint-source

conveyance. The CWA has no say over [such] conduct.”

Id.

The Sixth Circuit conclusion follows in the wake

of the Seventh and Fifth Circuits’ earlier decisions. In

Oconomowoc Lake, the Seventh Circuit refused to

extend CWA jurisdiction to a retention pond collecting

“oil, grease, and other pollutants” where the “water

seep[ed] into the ground—carrying hydrocarbons and

other unwelcome substances.” 24 F.3d at 963-64.

Although the court’s primary holding turned on

whether the retention pond was part of “the waters of

the United States,” id. at 964, the court also expressly

rejected the “hydrological connection” theory, id. at

965. Even granting the premise that “water from the

pond will enter the local ground waters, and thence

underground aquifers that feed lakes and streams

that are part of the ‘waters of the United States,’” the

court nonetheless held that the CWA does not

“assert[] authority over ground waters, just because

these may be hydrologically connected with surface

19

waters.” Id. (emphasis added). The court found

instead that Congress’s “omission of ground waters”

from the CWA was “not an oversight,” id., even if

these discharges eventually reach “waters of the

United States.”

The Fifth Circuit has consistently adopted a

similar position. For instance, in Exxon Corp. v.

Train, it identified and discussed a “clear pattern of

congressional intent with respect to groundwaters,”

namely “the encouragement of state efforts to control

groundwater pollution [and] not of direct federal

control.” 554 F.2d at 1322. Engaging in a thorough

analysis of the CWA’s text and legislative history, it

emphasized that Congress had rejected an

amendment that would have brought all groundwater

(hydrologically connected to surface water or not)

within the jurisdictional ambit of the CWA. See id. at

1328-30.

The holding in Exxon was, in turn, a critical

component of the Fifth Circuit’s later decision in Rice.

See 250 F.3d at 269. There, the court rejected a claim

that a petroleum company illegally discharged oil into

“navigable waters”7 based on a theory that the

7 Rice involved a claim brought under the Oil Pollution Act of

1990 (“OPA”), 33 U.S.C. §2701 et seq., rather than the CWA. 250

F.3d at 265. Both statues, however, regulate discharge of

pollutants into “navigable waters,” defined identically as “the

waters of the United States,” and the OPA’s legislative history

“strongly indicate[s] that Congress generally intended the term

‘navigable waters’ to have the same meaning in both the OPA

and the CWA.” Id. at 267-68.

20

“discharges have seeped through the ground into

groundwater which has, in turn, contaminated

several bodies of surface water” “through subsurface

flow from the contaminated groundwater . . . into [a]

river.” Id. at 265, 270-71. The court explained that

liability extends only to “discharges . . . into or upon

the navigable waters,” not indirect discharges

through groundwater that reach jurisdictional waters

“by gradual, natural seepage.” Id. at 271. “In light of

Congress’s decision not to regulate ground waters

under the CWA/OPA,” the court refused to extend

OPA jurisdiction so far, emphasizing instead its duty

to “construe the OPA in such a way as to respect

Congress’s decision to leave the regulation of

groundwater to the States.” Id. at 272 (emphasis

added).

Only this Court can resolve the fundamental

question animating this growing division: Does the

CWA apply to discharges that reach “the waters of the

United States” only by migration through

nonjurisdictional groundwater?

Granting the

Petition would allow this Court to reject the flawed

analysis below, and instead affirm—as the statutory

text and principles of cooperative federalism require—

that groundwater is neither navigable water nor a

point source, and ultimately beyond the CWA’s reach.

21

III. Proper Interpretation Of The CWA Will Not

Leave Groundwater or Connected Surface

Water Unprotected.

This Court should also grant the petition because

there is no need for the atextual overreach in the

decision below. The CWA was never intended to allow

the EPA to regulate every possible aspect of water

contamination, and any concern to the contrary about

leaving groundwater (and any hydrologically

connected surface water) unprotected is unfounded.

See, e.g., Sierra Club v. Virginia Elec. & Power Co.,

--- F.3d. ---, 2018 WL 4343513, at *6 (4th Cir. Sept. 12,

2018) (“[T]he fact that [some groundwater] pollution

falls outside the scope of the Clean Water Act’s

regulation does not mean that it slips through the

regulatory cracks.”). States take seriously their

responsibility to protect the natural resources within

their borders, see, e.g., State ex rel. Smith v. Kermit

Lumber & Pressure Treating Co., 200 W. Va. 221, 488

S.E.2d 901 (1997), and other federal statutes are

better-tailored to address the problem of groundwater

contamination in certain circumstances.

As an initial matter, while the CWA does not

authorize direct federal regulation of groundwater

pollution, other federal statutes are better tailored to

do so. For example, the Safe Drinking Water Act, 42

U.S.C. § 300f et seq., requires States to set minimum

standards for the “subsurface emplacement of fluids”

that include a prohibition on such discharges without

a state permit. See 42 U.S.C. § 300h(b), (d)(1); 40

C.F.R. § 144.12. Further, the Resource Conservation

and Recovery Act (“RCRA”) permits enforcement

22

action against entities responsible for groundwater

contamination in appropriate circumstances, as well

as authorizing ameilorative and other remedial

actions. See, e.g., 42 U.S.C. § 6973(2) (RCRA permits

an action against “any person” whose “handling,

storage, treatment, transportation or disposal of any

solid waste or hazardous waste may present an

imminent and substantial endangerment to health or

the environment.”). Indeed, although the Sixth

Circuit in Kentucky Waterways rejected plaintiffs’

claim regarding discharges from coal ash ponds under

the CWA, it held that such claims are cognizable

under RCRA. 2018 WL 4559315, at *9-11.

More importantly, States have long exercised

their authority to regulate in this space. The CWA

itself expressly provides that States retain power the

power to “adopt or enforce” any environmental

protection they deem necessary to protect their land

and water resources. 33 U.S.C. § 1370. The amici

States have each enacted statutory protections

designed to protect and conserve their groundwater

resources, and by extension the surface waters they

often feed. Examples of such laws include—but are by

no means limited to—the following:



In West Virginia, “[i]t is unlawful for any

person,” without a state permit, to “[a]llow

sewage, industrial wastes or other wastes, or

the effluent therefrom, produced by or

emanating from any point source, to flow into

the waters of this state.” W. Va. Code § 22-118(b); see also W. Va. Code § 22-11-3(23)

(defining “water” to include “all water on or

23

beneath the surface of the ground”). Similarly,

West Virginia’s Department of Environmental

Protection

“establish[es]

maximum

contaminant

levels

permitted

for

groundwater,” which must “recognize the

degree to which groundwater is hydrologically

connected with surface water and other

groundwater” and “provide protection for such

surface water and other groundwater.” W. Va.

Code § 22-12-4(b)-(c).



The law of Arizona, in light of its arid climate,

is especially focused on the protection of its

groundwaters through its comprehensive

aquifer protection permit and water quality

standards programs. Ariz. Rev. Stat. §§ 49203(A)(4), 223, 224(B).



In Colorado, it is unlawful to discharge any

statutorily defined pollutant into any state

waters without first having obtained the

necessary permit by state authorities. Colo.

Rev. Stat. §25-8-501(1). “State waters” include

any and all “subsurface waters which are

contained in or flow in or through” the State.

Colo. Rev. Stat. § 25-8-103 (19).



Kentucky directly prohibits the discharge of

pollutants into groundwater, providing that

“no person shall, directly or indirectly . . .

discharge into any of the waters of the

Commonwealth . . . any pollutant, or any

substance that shall cause or contribute to the

24

pollution of the waters of the Commonwealth”

except as authorized by state regulatory

authorities. Ky. Rev. Stat. § 224.70-110.

“Waters of the Commonwealth” is defined to

include “all . . . bodies or accumulations of

water, surface and underground, natural or

artificial, which are situated wholly or partly

within, or border upon, this Commonwealth, or

are within its jurisdiction, except those private

waters which do not combine or effect a

junction with natural surface or underground

waters.” Ky. Rev. Stat. § 224.1-300(6).



Michigan law provides that a “person shall not

directly or indirectly discharge into the waters

of the state a substance that is or may become

injurious” to a broad array of interests,

including public health, commercial, industrial

and agricultural land uses, and the protection

of wild flora and fauna. Mich. Comp. Laws

§ 324.3109(1). The term “waters of the state”

is

explicitly

defined

to

include

“groundwaters . . . within the jurisdiction of

this state.” Mich. Comp. Laws § 324.3101(aa).



In South Carolina, it is “unlawful for a person,

directly or indirectly, to throw, drain, run,

allow to seep, or otherwise discharge into the

environment of the State organic or inorganic

matter” without a permit. S.C. Code § 48-190(A)(1) (emphasis added).

25

Where, as here, the States have taken up the

mantle of protecting groundwater and nonpoint

source pollution within their borders, it would be

particularly inappropriate to allow the decision

below—and the circuit split it deepens—to stand. The

States deeply appreciate the value of their natural

resources and the danger posed to all waters from

groundwater contamination. Reaffirming the CWA’s

textual limits will not undermine these important

state-level protections. To the contrary, curbing the

potential tsunami of compliance costs the Fourth

Circuit’s explansive theory of CWA jurisdiction invites

will allow States to focus their efforts and resources

on enforcing laws better tailored to ensuring the

purity of their waters—both surface and ground.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Patrick Morrisey

Attorney General

Lindsay S. See

Solicitor General

Counsel of Record

Zachary A. Viglianco

Thomas T. Lampman

Assistant Attorneys General

26

OFFICE OF THE WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

Lindsay.S.See@wvago.gov

(304) 558-2021

Counsel for Amicus Curiae

State of West Virginia

[Additional signatures on

following page]

27

STEVE MARSHALL

Attorney General

State of Alabama

JEFF MARTIN LANDRY

Attorney General

State of Louisiana

LESLIE RUTLEDGE

Attorney General

State of Arkansas

BILL SCHUETTE

Attorney General

State of Michigan

CYNTHIA H. COFFMAN

Attorney General

State of Colorado

DOUG PETERSON

Attorney General

State of Nebraska

CHRISTOPHER M. CARR

Attorney General

State of Georgia

ADAM PAUL LAXALT

Attorney General

State of Nevada

LAWRENCE G. WASDEN

Attorney General

State of Idaho

MIKE HUNTER

Attorney General

State of Oklahoma

CURTIS T. HILL, JR.

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

DEREK SCHMIDT

Attorney General

State of Kansas

KEN PAXTON

Attorney General

State of Texas

ANDY BESHEAR

Attorney General

Commonwealth of

Kentucky

SEAN REYES

Attorney General

State of Utah

28

BRAD SCHIMEL

Attorney General

State of Wisconsin

PETER K. MICHAEL

Attorney General

State of Wyoming

MATT BEVIN

Governor

Commonwealth

of Kentucky

PHIL BRYANT

Governor

State of Mississippi