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

Supreme Court briefOct 23, 2018

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No. 18-268

In the

Supreme Court of the United States

_________

KINDER MORGAN ENERGY PARTNERS, L.P. and

PLANTATION PIPE LINE COMPANY, INC.,

Petitioners,

UPSTATE FOREVER and SAVANNAH RIVERKEEPER,

Respondents.

_________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

_________

BRIEF IN OPPOSITION

_________

Frank S. Holleman III

Counsel of Record

Nicholas S. Torrey

Leslie Griffith

SOUTHERN ENVIRONMENTAL LAW CENTER

601 West Rosemary Street, Suite 220

Chapel Hill, North Carolina 27516-2356

(919) 967-1450

fholleman@selcnc.org

Christopher K. DeScherer

SOUTHERN ENVIRONMENTAL LAW CENTER

463 King Street, Suite B

Charleston, South Carolina 29403

October 23, 2018

QUESTIONS PRESENTED

Did the Conservation Groups properly state a

claim under the Clean Water Act by alleging

that Petitioners are adding petroleum pollutants

through groundwater to waters of the United

States from a buried pipe near the waterway?

Did the Conservation Groups properly allege an

ongoing violation of the Clean Water Act where

petroleum pollutants from Petitioners’ ruptured

pipe continue to be added to waters of the United

States after the pipe was repaired?

TABLE OF CONTENTS

Page

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

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

RULE 29.6 STATEMENT ...........................................1

INTRODUCTION ........................................................1

Discharges of Pollutants from a Point

Source to Navigable Waters via

Groundwater .................................................... 1

II.

Ongoing Violation ............................................ 4

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

Clean Water Act ............................................... 4

II.

Facts ................................................................. 5

III. Proceedings Below ........................................... 6

REASONS FOR DENYING THE PETITION ............8

Certiorari Is Not Warranted on the

Clean Water Act’s Application to

Discharges to Surface Waters Through

Groundwater. ................................................... 9

A. The Fourth Circuit Joined Courts

Nationwide. ...............................................9

1. For Decades, Courts Have

Agreed that the Act Does Not

Exempt Discharges to Surface

Waters Through

Groundwater. ....................................9

iii

2. The Fourth Circuit Followed

the Statute and this Court’s

Precedent.........................................18

3. Petitioners Misconstrue the

Holding Below. ................................25

B. An Ongoing EPA Process Makes

Certiorari Inappropriate. .......................26

C. Further Review Would

Unnecessarily Disrupt Existing

Clean Water Act Regulation of

Indirect Discharges. ................................28

II.

Certiorari Is Not Warranted on

Petitioners’ Ongoing Discharge of

Pollutants to Waters of the United

States. ............................................................ 32

A. The Fourth Circuit’s Holding

Adheres to Gwaltney and the

Statutory Text. ........................................33

B. There Is No Circuit Split. .......................35

C. Whether Petitioners’ Discharge of

Pollutants to Navigable Waters Is

Ongoing Is a Fact-Bound Question

of Limited Importance. ...........................36

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

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Aiello v. Town of Brookhaven,

136 F. Supp. 2d 81 (E.D.N.Y. 2001).................... 36

Ass’n Concerned Over Res. & Nature,

Inc. v. Tenn. Aluminum Processors,

Inc.,

No. 1:10-00084, 2011 WL 1357690

(M.D. Tenn. April 11, 2011) ................................ 13

Ass’n to Protect Hammersley v. Taylor

Res., Inc.,

299 F.3d 1007 (9th Cir. 2002) ............................. 37

Cape Fear River Watch, Inc. v. Duke

Energy Progress, Inc.,

25 F. Supp. 3d 798 (E.D.N.C. 2014).................... 16

Coldani v. Hamm,

No. 2:07-CV-0660 JAM EFB, 2008

WL 4104292 (E.D. Cal. Aug. 16,

2007) .................................................................... 13

Concerned Area Residents for the Env’t

v. Southview Farm,

34 F.3d 114 (2d Cir. 1994)..............................12, 16

Cordiano v. Metacon Gun Club, Inc.,

575 F.3d 199 (2d Cir. 2009)................................. 15

Crown Assocs., LLC v. Greater New

Haven Reg’l Water Pollution Control

Auth.,

No. 3:15-cv-1439, 2017 WL 2960506

(D. Conn. July 11, 2017)...................................... 17

Day, LLC v. Plantation Pipe Line Co.,

315 F. Supp. 3d 1219 (N.D. Ala.

2018) .................................................................... 36

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

276 F. Supp. 3d 1359 (M.D. Ga.

2017) .................................................................... 13

Friends of Santa Fe Cty. v. LAC

Minerals, Inc.,

892 F. Supp. 1333 (D.N.M. 1995) ..................11, 36

Graham Cty. Soil & Water Conservation

Dist. v. United States,

559 U.S. 280 (2010) ............................................. 22

Greater Yellowstone Coal. v. Larson,

641 F. Supp. 2d 1120 (D. Idaho 2009) ................ 13

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ........................ 4, 5, 7, 33, 34, 35

Hamker v. Diamond Shamrock Chem.

Co.,

756 F.2d 392 (5th Cir. 1985) ..........................35, 36

Haw. Wildlife Fund v. Cty. of Maui,

886 F.3d 737 (9th Cir. 2018) ...... 3, 8, 11, 12, 14, 22

Hernandez v. Esso Std. Oil Co.,

599 F. Supp. 2d 175 (D.P.R. 2009) ...................... 13

Idaho Rural Council v. Bosma,

143 F. Supp. 2d 1169 (D. Idaho 2001) ................ 13

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

No. 18-5115, 2018 WL 4559315 (6th

Cir. Sept. 24, 2018) .....................................2, 18, 24

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

No. 5:17-292-DCR, 2017 WL

6628917 (E.D. Ky. Dec. 28, 2017) ....................... 16

League of Wilderness Defs. v. Forsgren,

309 F.3d 1181 (9th Cir. 2002) ........................11, 21

McClellan Ecological Seepage Situation

v. Weinberger,

707 F. Supp. 1182 (E.D. Cal. 1988) .................... 14

Mut. Life Ins. Co. of N.Y. v. Mobil Corp.,

No. CIVA96CV1781RSP/DNH, 1998

WL 160820 (N.D.N.Y. Mar. 31, 1998) ................ 13

N. Cal. River Watch v. Mercer Fraser

Co.,

No. C-04-4620 SC, 2005 WL 2122052

(N.D. Cal. Sept. 1, 2005) ..................................... 13

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

138 S. Ct. 617 (2018) ........................................... 18

Nat’l Cotton Council of Am. v. EPA,

553 F.3d 927 (6th Cir. 2009) ............................... 34

vii

New York v. United States,

620 F. Supp. 374 (E.D.N.Y. 1985)....................... 14

Nw. Envtl. Def. Ctr. v. Grabhorn, Inc.,

No. CV-08-548-ST, 2009 WL

3672895 (D. Or. Oct. 30, 2009) ........................... 13

Ohio Valley Envtl. Coal. Inc. v.

Pocahontas Land Corp.,

No. 3:14-11333, 2015 WL 2144905

(S.D.W. Va. May 7, 2015) .................................... 13

Peconic Baykeeper, Inc. v. Suffolk Cty.,

600 F.3d 180 (2d Cir. 2010)............................11, 15

Quivira Mining Co. v. EPA,

765 F.2d 126 (10th Cir. 1985) ........................11, 15

Rapanos v. United States,

547 U.S. 715 (2006) ..............................7, 10, 17, 19

Raritan Baykeeper, Inc. v. NL Indus.,

Inc.,

No. 09-cv-4117 (JAP), 2013 WL

103880 (D.N.J. Jan. 8, 2013)............................... 13

Rice v. Harken Expl. Co.,

250 F.3d 264 (5th Cir. 2001) ............................... 14

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

Tribe of Indians,

541 U.S. 95 (2004) ............................................... 19

S.F. Herring Ass’n v. Pac. Gas & Elec.

Co.,

81 F. Supp. 3d 847 (N.D. Cal. 2015) ................... 13

viii

Sierra Club, Lone Star Chapter v. Cedar

Point Oil Co., Inc.,

73 F.3d 546 (5th Cir. 1996) ................................. 37

Sierra Club v. Abston Constr. Co.,

620 F.2d 41 (5th Cir. 1980) ............................12, 16

Sierra Club v. Colo. Ref. Co.,

838 F. Supp. 1428 (D. Colo. 1993) ...................... 14

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

421 F.3d 1133 (10th Cir. 2005) ........................... 15

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

903 F.3d 403 (4th Cir. 2018) ............................... 20

Tenn. Clean Water Network v. Tenn.

Valley Auth.,

No. 17-6155, 2018 WL 4559103 (6th

Cir. Sept. 24, 2018) ................................................ 2

Tenn. Riverkeeper, Inc. v. HensleyGraves Holdings, LLC,

No. 2:13-CV-877-LSC, 2013 WL

12304022 (N.D. Ala. Aug. 20, 2013) ................... 13

Tri-Realty Co. v. Ursinus Coll.,

No. 11-5885, 2013 WL 6164092 (E.D.

Pa. Nov. 21, 2013) ..........................................16, 17

U.S. Steel Corp. v. Train,

556 F.2d 822 (7th Cir. 1977) ....................10, 22, 29

United States v. Johnson,

437 F.3d 157 (1st Cir. 2006)................................ 15

United States v. Lucas,

516 F.3d 316 (5th Cir. 2008) ............................... 31

United States v. Ortiz,

427 F.3d 1278 (10th Cir. 2005) ........................... 37

Vill. of Oconomowoc Lake v. Dayton

Hudson Corp.,

24 F.3d 962 (7th Cir. 1994) ................................. 14

Wash. Wilderness Coal. v. Hecla Mining

Co.,

870 F. Supp. 983 (E.D. Wash. 1994) ................... 14

Waterkeeper All., Inc. v. EPA,

399 F.3d 486 (2d Cir. 2005)................10, 15, 17, 32

Williams Pipe Line Co. v. Bayer Corp.,

964 F. Supp. 1300 (S.D. Iowa 1997) ................... 13

Wilson v. Amoco Corp.,

33 F. Supp. 2d 969 (D. Wyo. 1998) .................... 36

Yadkin Riverkeeper, Inc. v. Duke Energy

Carolinas, LLC,

141 F. Supp. 3d 428 (M.D.N.C. 2015) ................. 13

Federal Statutes

Clean Water Act

33 U.S.C. § 1251(a) ................................................ 4

33 U.S.C. § 1251(a)(1) ......................................... 34

33 U.S.C. § 1311(a) ...........................................4, 18

33 U.S.C. § 1362(12) ...........................1, 3, 4, 18, 33

33 U.S.C. § 1362(12)(A) ......................................... 7

33 U.S.C. § 1362(14) ...............................3, 4, 18, 22

33 U.S.C. § 1365(a) ................................................ 6

33 U.S.C. § 1365(a)(1) ......................................5, 32

33 U.S.C. § 1365(b)(1)(A) ...................................... 6

33 U.S.C. § 1365(f)(1) ............................................ 5

Resource Conservation and Recovery

Act, 42 U.S.C. § 6903(27) .................................... 23

Administrative Materials

40 C.F.R. § 261.4(a)(2) .............................................. 23

Amendments to the Water Quality

Standards Regulation That Pertain

to Standards on Indian

Reservations, 56 Fed. Reg. 64,876

(Dec. 12, 1991) ..................................................... 27

Clean Water Act Coverage of

“Discharges of Pollutants” via a

Direct Hydrologic Connection to

Surface Water, 83 Fed. Reg. 7,126

(Feb. 20, 2018) ..................................................... 28

NPDES Permit Application Regulations

for Storm Water Discharges; Final

Rule, 55 Fed. Reg. 47,989 (Nov. 16,

1990) .................................................................... 27

NPDES Permit Regulation and Effluent

Limitations Guidelines and

Standards for CAFOs, 66 Fed. Reg.

2,960 (Jan. 12, 2001) ................................21, 24, 26

Reissuance of NPDES General Permits

for Storm Water Discharges From

Construction Activities, 63 Fed. Reg.

7,858 (Feb. 17, 1998) ........................................... 27

Revised NPDES Permit Regulation and

Effluent Limitations Guidelines for

Concentrated Animal Feeding

Operations in Response to the

Waterkeeper, 73 Fed. Reg. 70,417

(Nov. 20, 2008)..................................................... 27

Legislative Materials

H.R. Rep. No. 93-1185 (1974) ................................... 22

Other Authorities

EPA, History of the Clean Water Act,

https://www.epa.gov/lawsregulations/history-clean-water-act ................... 22

EPA Office of Water, Nonpoint Source

Guidance (1987),

https://nepis.epa.gov/Exe/ZyPURL.cg

i?Docket=910217GL.TXT .................................... 21

xii

EPA Region 6, NPDES General Permit

for CAFOs in New Mexico (Sept. 1,

2016),

https://19january2017snapshot.epa.g

ov/sites/production/files/201607/documents/nmg010000_final_per

mit_nm_cafo-signed.pdf ...................................... 29

EPA Region 10, Taholah Village

Wastewater Treatment Plant, No.

WA0023434,

https://www.epa.gov/sites/production

/files/2017-09/documents/410-npdestaholah-wa0023434-final-permit2015.pdf ..........................................................29, 30

EPA, Response to Comments—Topic 10

Legal Analysis, 386 (June 30, 2015),

https://19january2017snapshot.epa.g

ov/sites/production/files/201506/documents/cwr_response_to_com

ments_10_legal.pdf.........................................27, 29

EPA, Response to Congress on Use of

Decentralized Wastewater

Treatment Systems (Apr. 1997),

https://nepis.epa.gov/Exe/ZyPURL.cgi

?Dockey=200047VF.TXT ..................................... 30

Questa Mine Final Permit Decision

(May 31, 2016),

https://www.env.nm.gov/swqb/NPDE

S/Permits/NM0022306-ChevronQuesta.pdf ........................................................... 30

xiii

Texas General Permit No. TXG920000

(July 9, 2009),

nttps://www.tceq.texas.gov/assets/pu

blic/permitting/wastewater/general/t

xg920000.pdf ....................................................... 30

RULE 29.6 STATEMENT

Respondents Upstate Forever and Savannah

Riverkeeper have no parent corporations and have

issued no stock to any publicly held company.

INTRODUCTION

The Clean Water Act (the “Act” or “CWA”)

prohibits the unpermitted discharge of pollutants:

“any addition of any pollutant to navigable waters

from any point source.”

33 U.S.C. § 1362(12).

Congress did not confine this prohibition only to

pollution flowing “immediately” or “directly into”

navigable waters. Accordingly, courts and agencies

have recognized for decades that the Act applies to

pollutants from point sources that flow over land,

through the air, and via groundwater to navigable

waters.

Petitioners misstate the holding below and the

holdings of other courts across the country to project

an illusion of chaos in the Clean Water Act’s

protections for surface waters of the United States.

In reality, the Fourth Circuit’s ruling is consistent

with the long-established—and long-implemented—

scope of the Act and this Court’s decisions.

Discharges of Pollutants from a Point

Source to Navigable Waters via

Groundwater

Petitioners claim the Act exempts unpermitted

discharges to navigable waters that travel any

distance underground before entering navigable

waters, and tell the Court that the Fourth Circuit

applied the Act to “discharges of pollutants into

groundwater.” Pet.12. But that is false. The court

explained: “We do not hold that the CWA covers

discharges to ground water itself. Instead, we hold

only that an alleged discharge of pollutants, reaching

navigable waters located 1000 feet or less from the

point source by means of ground water with a direct

hydrological connection to such navigable waters,

falls within the scope of the CWA.”

App.26

(emphasis added).

The decision below does not

expand the meaning of “navigable waters” to include

groundwater. Rather, the Fourth Circuit properly

applied the statutory definition of “discharge of a

pollutant” to conclude that the Clean Water Act does

not exempt this particular kind of discharge to

surface waters.

Petitioners also claim the ruling below

contributes to a circuit split on discharges through

groundwater to navigable waters—but no case they

identify contradicts the Fourth Circuit’s decision.

The circuits that have ruled on the issue, with one

weeks-old exception decided after the petition, have

reached the same conclusion as the Fourth Circuit.

Numerous district courts across the country have

held the same, throughout four decades.

The just-issued pair of decisions by a divided

Sixth Circuit panel does not undermine this

consistent trend among the lower courts, and

petitions for rehearing are pending in both cases.

Tenn. Clean Water Network v. Tenn. Valley Auth.,

No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24,

2018); Ky. Waterways All. v. Ky. Utils. Co., No. 185115, 2018 WL 4559315 (6th Cir. Sept. 24, 2018).

The Sixth Circuit majority’s position (and

1 References to App. are to Petitioners’ appendix.

Petitioners’, see Pet.24) that the Clean Water Act

covers only discharges “directly into” navigable

waters is incompatible with the statutory text, which

states that the Act covers “any addition” “to

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

§ 1362(12). This definition includes pollution from

“container[s],”

“concentrated

animal

feeding

operation[s],” and “well[s],” id. § 1362(14), all of

which Congress designated as point sources and

none of which discharges directly into navigable

waters. For example, pollution flowing from a well to

navigable waters necessarily travels through soil or

groundwater.

Petitioners claim the Fourth Circuit’s decision,

along with the Ninth Circuit’s decision in Hawai‘i

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

Cir. 2018), has “spawned massive confusion,” Pet.2—

but in fact, federal and state agencies have been

administering permitting programs for such

discharges for many years, across many industries

including feedlots, oil and gas facilities, chemical

plants, and sewer systems. The fact that the Act

applies to discharges to surface waters via

groundwater flows is well-established.

The United States Environmental Protection

Agency (“EPA”) recently sought comment on whether

it should reconsider its position on this issue, which

is another reason for this Court to deny the petition.

Though the statutory language is plain, review by

this Court is not warranted when the agency may

adjust how the statute is implemented and provide

any clarification it concludes is needed.

II.

Ongoing Violation

As Petitioners’ question presented admits,

petroleum from their pipeline continues to enter

tributaries of the Savannah River. These facts

satisfy every element of the Act’s “discharge of a

pollutant” definition and constitute an ongoing

violation enforceable by citizen suit. No circuit has

decided otherwise. The Fourth Circuit’s decision

follows the plain text of the statute and preserves the

limited but important role for citizen suits this Court

recognized in Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987).

Because the decision below is consistent with

the plain text of the Act and the longstanding rulings

of this Court, the lower courts, and EPA, certiorari is

not warranted.

STATEMENT OF THE CASE

Clean Water Act

To “restore and maintain ... the Nation’s

waters,” the Clean Water Act prohibits the

unpermitted “discharge of any pollutant by any

person.” 33 U.S.C. §§ 1251(a), 1311(a). Congress

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

any pollutant to navigable waters from any point

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

discernible, confined and discrete conveyance.” Id.

§ 1362(14). This includes, but is not limited to, “any

pipe, ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, [or] concentrated

animal feeding operation ... from which pollutants

are or may be discharged.” Id.

Citizens may enforce the Clean Water Act

against any person “alleged to be in violation of” the

fundamental prohibition against unpermitted

discharges.

Id. §§ 1365(a)(1), (f)(1).

A citizen

plaintiff must allege “a state of either continuous or

intermittent violation” to establish jurisdiction over

the citizen suit. Gwaltney, 484 U.S. at 57.

II.

Facts

Petitioners’ Plantation Pipeline runs near

wetlands and tributaries of the Savannah River in

Anderson County, South Carolina. App.6. Browns

Creek—a tributary and headwater of the Savannah

River—and Cupboard Creek flow within several

hundred feet of the pipeline. App.6–7.

In late 2014, local residents discovered dead

plants, smelled gas, and saw gasoline pooled near the

pipeline. App.6. Several feet underground, over

369,000 gallons of petroleum were spilling from the

pipeline where an aged patch had failed. App.6, 55.

The petroleum quickly began entering Browns

Creek, as water testing confirmed. App.7–8. Though

Petitioners later patched the pipe, Petitioners never

stopped petroleum flowing to Browns Creek and the

surrounding surface waters. Gasoline flows to this

stream through groundwater and via seeps that

emerge and flow aboveground to the waterway.

App.6–7, 9.

Testing in Browns Creek since the spill has

consistently found petroleum pollutants including

benzene, toluene, ethylbenzene, and xylenes. App.7,

62. Testing nearly two years after the spill showed

increasing pollutant levels.

App.8.

Petroleum

continues to flow to the nearby creeks and wetlands.

III. Proceedings Below

Respondents Upstate Forever and the Savannah

Riverkeeper (the “Conservation Groups”), are

nonprofit membership public interest organizations

working to protect the waters of Anderson County

and the Savannah River Basin. App.6. Recognizing

that Petitioners would keep polluting the

surrounding waterways, the Conservation Groups

gave the statutorily required notice in late 2016 that

Petitioners were violating the Clean Water Act and

that the Conservation Groups intended to enforce the

Act. 33 U.S.C. § 1365(b)(1)(A).

After sixty days without action from Petitioners

or the state, the Conservation Groups filed this

citizen suit in the District of South Carolina. The

complaint stated that Petitioners were violating the

Act by discharging petroleum products from their

pipeline to Browns Creek and other nearby creeks

and wetlands without a permit. App.8–9.

The district court granted Petitioners’ motion to

dismiss. App.72. It ruled that gasoline entering

creeks and wetlands from Petitioners’ pipeline was

not a continuing discharge because the pipeline was

now repaired and did not discharge “directly into

navigable waters.” App.62–63. It also refused to

apply the Clean Water Act to discharges to navigable

waterways through groundwater. App.72.

The Fourth Circuit reversed. App.2. It held

that “citizens may bring suit under 33 U.S.C.

§ 1365(a) for discharges of pollutants that derive

from a ‘point source’ and continue to be ‘added’ to

navigable waters.” Id. The Fourth Circuit noted

“that the CWA, like other environmental statutes,

authorizes ‘prospective relief’ that only can be

attained while a violation is ongoing and susceptible

to remediation.” App.13 (quoting Gwaltney, 484 U.S.

at 57). “[T]he relevant violation here is the discharge

of a pollutant, defined in the Act as ‘any addition of

any pollutant to navigable waters from any point

source.’” App.15 (quoting 33 U.S.C. § 1362(12)(A)).

Applying that statutory definition, the Fourth

Circuit held that the Conservation Groups alleged an

ongoing unpermitted discharge because pollutants

from the pipeline continue to enter Browns Creek

and other navigable waters. It rejected the idea that

“pollution becomes ‘nonpoint source pollution’ not

covered by the CWA at the moment when the point

source no longer actively releases the pollutant.”

App.15 n.7. Whether or not the pipeline is repaired,

the “pollution is traceable not to dispersed activities

and nonpoint sources but to Kinder Morgan’s

pipeline, a discrete source.” Id.

The Fourth Circuit also held that the Clean

Water Act’s prohibition on unpermitted discharges

covers discharges where pollutants travel from a

point source less than 1,000 feet through

groundwater to navigable waters. In light of Justice

Scalia’s plurality opinion in Rapanos v. United

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

observed that the Clean Water Act by its plain text

prohibits discharges “from” a point source, not just

discharges “directly from” a point source. App.20

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

dictionary definition of “from” indicates a “starting

point,” the Fourth Circuit determined that a point

source “need not also convey the discharge directly to

navigable waters.” App.21.

The Fourth Circuit emphasized that it was not

applying the Clean Water Act to discharges into

groundwater itself, but rather to discharges passing

through groundwater to navigable waters: “Had the

plaintiffs alleged that ground water, of itself, falls

within the meaning of navigable waters under the

CWA, we would be confronting a distinctly different

question here.” App.12 n.5.

The Fourth Circuit adopted the position

“consistently” taken by EPA “that the Act applies to

discharges ‘from a point source via ground water that

has a direct hydrologic connection to surface water.’”

App.23 (citations omitted). There is “no functional

difference” between this standard and that adopted

by the Ninth Circuit in Hawai‘i Wildlife Fund, 886

F.3d at 749. App.24 n.12.

Judge Floyd dissented, finding no ongoing

discharge because the pipeline “is not currently

leaking or releasing any pollutants.”

App.40.

However, he did not disagree that the Clean Water

Act prohibits unpermitted point source discharges to

navigable waters through groundwater.

The Fourth Circuit denied Petitioners’ petition

for rehearing en banc.

REASONS FOR DENYING THE PETITION

The Fourth Circuit’s ruling that the Clean

Water Act applies to pollution flowing a short

distance through groundwater to reach navigable

waters is consistent with the statutory language and

the well-established scope of the Clean Water Act as

it has been implemented by courts, regulation, and

permitting agencies throughout the nation for

decades. With the consistent weight of precedent set

against one very recent outlier, there is no developed

circuit split and no need for Court intervention.

Certiorari is also inappropriate because EPA is

currently reviewing its position on the Clean Water

Act’s coverage of such discharges. The Court should

not intervene while this EPA process is ongoing.

Because the ongoing violation question is based

on an unusual fact pattern—on which no other

circuit has ruled—it is inappropriate for the Court.

Because it goes to subject matter jurisdiction, so too

is the case as a whole.

Certiorari Is Not Warranted on the Clean

Water Act’s Application to Discharges to

Surface Waters Through Groundwater.

The Fourth Circuit Joined Courts

Nationwide.

The Fourth Circuit’s decision reaffirms courts’

nearly unanimous acknowledgment and approval of

Clean Water Act regulation of these discharges,

adheres to this Court’s precedents, and derives

directly from the text of the Act. Further review is

unwarranted.

For Decades, Courts Have Agreed that

the Act Does Not Exempt Discharges to

Surface Waters Through Groundwater.

Since the passage of the Act, the circuits and the

overwhelming majority of district courts to have

ruled on this issue have agreed that the Clean Water

Act applies to discharges of pollutants from a point

source to waters of the United States through a short

distance of groundwater. This consensus includes

decisions from circuits the Petition wrongly suggests

disagree with the Fourth Circuit. The circuit split

the Petition identifies is nonexistent.

Instead, in upholding permits, permitting

programs, and citizen suits, circuits have recognized

that the Clean Water Act covers discharges from a

point source to navigable waters that are conveyed

via groundwater flows. These decisions—and others

recognizing additional kinds of indirect discharges—

are consistent with the Court’s statement in Rapanos

that the Act’s protections are not limited to point

source discharges “directly” into navigable waters.

The Second Circuit upheld EPA’s regulation of

pollutant discharges from concentrated animal

feeding operations (“CAFOs”) to surface waters “via

groundwater.” Waterkeeper All., Inc. v. EPA, 399

F.3d 486, 515 (2d Cir. 2005). The CAFO regulation

the Second Circuit upheld has been in place for some

fifteen years, and CAFOs around the country comply

with

Clean

Water

Act

discharge

permits

implementing it. See infra 29–30.

The Seventh Circuit upheld Clean Water Act

permitting requirements for underground injection

wells, explaining that the Act covers discharges to

surface waters through those wells. U.S. Steel Corp.

v. Train, 556 F.2d 822, 852 (7th Cir. 1977), overruled

on other grounds by City of W. Chi. v. U.S. Nuclear

Regulatory Comm’n, 701 F.2d 632, 644 (7th Cir.

1983). The court noted that when Congress was

considering the Safe Drinking Water Act, it

recognized that the Clean Water Act already covered

such discharges. Id. at 852 n.61.

The Tenth Circuit, in a challenge to National

Pollutant Discharge Elimination System (“NPDES”)

permits regulating discharges from uranium mining

facilities to a dry arroyo and creekbed that flowed

underground to navigable waters, upheld Clean

Water Act coverage of flows carrying pollutants

“through underground acquifers [sic]. . . into

navigable-in-fact streams.” Quivira Mining Co. v.

EPA, 765 F.2d 126, 130 (10th Cir. 1985). Tenth

Circuit precedents “foreclose any argument” that

would exempt discharges to surface waters through

groundwater flows. Friends of Santa Fe Cty. v. LAC

Minerals, Inc., 892 F. Supp. 1333, 1358 (D.N.M.

1995).

The Ninth Circuit unanimously ruled that the

Clean Water Act applied to pollutants from a sewage

treatment facility’s underground wells that were

“fairly traceable from the point source to a navigable

water such that the discharge is the functional

equivalent of a discharge into the navigable water.”

Haw. Wildlife Fund, 886 F.3d at 749. As the Ninth

Circuit explained, the Act is not limited to

circumstances “where the point source itself directly

feeds into the navigable water.” Id. at 748. The

court held that the Act bars a polluter “from doing

indirectly that which it cannot do directly.” Id. at

752.

This reasoning follows other decisions over

nearly four decades recognizing that the Clean Water

Act does not exempt “indirect” discharges from a

point source that flow over the land, or pass through

the air, before entering navigable waters. Peconic

Baykeeper, Inc. v. Suffolk Cty., 600 F.3d 180, 188–89

(2d Cir. 2010) (pesticide sprayers discharging

through the air to surface waters); League of

Wilderness Defs. v. Forsgren, 309 F.3d 1181, 1185

(9th Cir. 2002) (same); Concerned Area Residents for

the Env’t v. Southview Farm, 34 F.3d 114, 119 (2d

Cir. 1994) (recognizing vehicle spraying manure on

fields as point source and subsequent runoff to

navigable waters as discharge subject to the Act);

Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45

(5th Cir. 1980) (“collection, and subsequent

percolation” of waters in mine pits, along with

pollutants carried from manmade sediment basins to

navigable waters “by gravity flow of rainwater,” are

covered by the Act).

The Ninth Circuit noted that restricting the Act

to cover only direct discharges “would necessarily

preclude liability” in these longstanding decisions.

Haw. Wildlife Fund, 886 F.3d at 748. Its decision

avoided, rather than created, a circuit split.

The Fourth Circuit’s ruling is entirely consistent

with these prior decisions. The Fourth Circuit held

that “the plain language of the CWA requires only

that a discharge come ‘from’ a ‘point source,’” as its

“starting point,” App.20–21, and that pollution from

a point source need not be “seamlessly channeled” to

navigable water to fall within the Act. App.21.

Instead, the Act applies where a clear groundwater

connection conveys pollutants from a point source to

navigable waters. App.22. The majority found “no

merit” to the concern that the court’s holding “will

result in unintended coverage under the CWA,”

App.16, but pointed out that if “the presence of a

short distance of soil and ground water were enough

to defeat a claim,” such a holding would “greatly

undermine” the Act. App.25.

Overwhelmingly, the district courts agree. Far

from a “consensus” supporting Petitioners’ artificially

narrow reading of the Act, Pet.16, the vast majority

have held that the Clean Water Act applies to

discharges such as Petitioners’ that originate from a

point source and enter nearby surface waters via

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

276 F. Supp. 3d 1359, 1367 (M.D. Ga. 2017), aff’d,

261 F. Supp. 3d 1345 (M.D. Ga. 2017); Yadkin

Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141

F. Supp. 3d 428, 445 (M.D.N.C. 2015); Ohio Valley

Envtl. Coal. Inc. v. Pocahontas Land Corp., No. 3:1411333, 2015 WL 2144905, at *8 (S.D.W. Va. May 7,

2015); S.F. Herring Ass’n v. Pac. Gas & Elec. Co., 81

F. Supp. 3d 847, 863 (N.D. Cal. 2015); Raritan

Baykeeper, Inc. v. NL Indus., Inc., No. 09-cv-4117

(JAP), 2013 WL 103880, at *15 (D.N.J. Jan. 8, 2013);

Tenn. Riverkeeper, Inc. v. Hensley-Graves Holdings,

LLC, No. 2:13-CV-877-LSC, 2013 WL 12304022, at

*6 (N.D. Ala. Aug. 20, 2013); Ass’n Concerned Over

Res. & Nature, Inc. v. Tenn. Aluminum Processors,

Inc., No. 1:10-00084, 2011 WL 1357690, at *17–18

(M.D. Tenn. April 11, 2011); Greater Yellowstone

Coal. v. Larson, 641 F. Supp. 2d 1120, 1138 (D. Idaho

2009); Nw. Envtl. Def. Ctr. v. Grabhorn, Inc., No. CV08-548-ST, 2009 WL 3672895, at *11 (D. Or. Oct. 30,

2009); Hernandez v. Esso Std. Oil Co., 599 F. Supp.

2d 175, 181 (D.P.R. 2009); Coldani v. Hamm, No.

2:07-CV-0660 JAM EFB, 2008 WL 4104292, at *7–8

(E.D. Cal. Aug. 16, 2007); N. Cal. River Watch v.

Mercer Fraser Co., No. C-04-4620 SC, 2005 WL

2122052, at *3 (N.D. Cal. Sept. 1, 2005); Idaho Rural

Council v. Bosma, 143 F. Supp. 2d 1169, 1180 (D.

Idaho 2001); Mut. Life Ins. Co. of N.Y. v. Mobil Corp.,

No. CIVA96CV1781RSP/DNH, 1998 WL 160820, at

*3 (N.D.N.Y. Mar. 31, 1998); Williams Pipe Line Co.

v. Bayer Corp., 964 F. Supp. 1300, 1319–20 (S.D.

Iowa 1997); Wash. Wilderness Coal. v. Hecla Mining

Co., 870 F. Supp. 983, 990 (E.D. Wash. 1994); Sierra

Club v. Colo. Ref. Co., 838 F. Supp. 1428, 1434 (D.

Colo. 1993); McClellan Ecological Seepage Situation

v. Weinberger, 707 F. Supp. 1182, 1195–96 (E.D. Cal.

1988), vacated on other grounds, 47 F.3d 325 (9th

Cir. 1995); New York v. United States, 620 F. Supp.

374, 381 (E.D.N.Y. 1985).

Petitioners’ reliance on Fifth and Seventh

Circuit cases only shows how they have misread the

decision here.

These cases merely held that

groundwater itself is not a water of the United

States—a point with which the Fourth Circuit

agreed. Rice v. Harken Expl. Co., 250 F.3d 264, 269

(5th Cir. 2001) (the “definition [of ‘navigable waters’]

is not so expansive as to include groundwater”); Vill.

of Oconomowoc Lake v. Dayton Hudson Corp., 24

F.3d 962, 965 (7th Cir. 1994). As the Ninth Circuit

explained:

We are not suggesting that the CWA

regulates all groundwater.

Rather, in

fidelity to the statute, we are reinforcing

that the Act regulates point source

discharges to a navigable water, and that

liability may attach when a point source

discharge is conveyed to a navigable water

through groundwater.

Our holding is

therefore consistent with Rice, where the

Fifth Circuit required some evidence of a

link between discharges and contamination

of navigable waters, and with Dayton

Hudson.

Haw. Wildlife Fund, 886 F.3d at 746 n.2 (citation

omitted).

The undisputed proposition that

groundwater is not a jurisdictional water of the

United States does not exempt point source pollution

added via groundwater to nearby navigable waters.

Petitioners’ other attempts to overstate a

conflict are similarly unavailing. Consistent with its

decision in Quivira, the Tenth Circuit in Sierra Club

v. El Paso Gold Mines upheld Clean Water Act

coverage of discharges of pollutants from a point

source mine shaft “which flow[] through other

[underground] conveyances to navigable waters,” as

in this case. 421 F.3d 1133, 1141 (10th Cir. 2005).

In United States v. Johnson, 437 F.3d 157 (1st

Cir. 2006), vacated, 467 F.3d 56 (1st Cir. 2006), the

court considered whether the U.S. Army Corps of

Engineers had jurisdiction under Section 404 of the

Act over certain wetlands “hydrologically connected”

to navigable waters, and merely stated in a footnote

that the Act “covers only surface water” and not

groundwater. Id. at 161 n.4. This unremarkable

proposition is not in dispute.

Cordiano v. Metacon Gun Club, Inc. is similarly

irrelevant: contamination conveyed by groundwater

was not an issue because there was no evidence that

the pollutants leached into the groundwater. 575

F.3d 199, 222–23 (2d Cir. 2009). Moreover, that

decision referred to and should be read in light of

Waterkeeper Alliance, Inc. v. EPA, where the Second

Circuit upheld Clean Water Act coverage of

discharges from a point source to navigable waters

through groundwater. 399 F.3d at 515. The Second

Circuit also has upheld coverage of other indirect

discharges to navigable waters through the air or

flowing overland. Peconic Baykeeper, 600 F.3d at

188–89; Concerned Area Residents for the Env’t, 34

F.3d at 119.

Like the Second Circuit, the Fifth Circuit’s

Sierra Club v. Abston Construction ruling held that

the Act applies to discharges from a point source that

flow over the surface of the land before entering

navigable waters. 620 F.2d at 45. The Fifth Circuit

explained that the Act’s prohibition on unpermitted

point source discharges does not apply to “natural

rainfall drainage over a broad area” from fields or

roads, which are classic nonpoint sources. Id. at 44.

However, it recognized that an initial point source is

enough: “if the miner at least initially collected or

channeled the water and other materials” then

overland “gravity flow, resulting in a discharge into a

navigable body of water, may be part of a point

source discharge” covered by the Act. Id. (emphasis

added). The decision below likewise recognizes that

to be covered by the plain language of the Act, point

sources need not discharge directly into U.S. waters.

Against the myriad decisions supporting the

Fourth Circuit’s ruling, supra 13–14, Petitioners cite

just four district court cases. Two misconstrued

Congress’s choice to exclude groundwater from

“waters of the United States” as a license to pollute

protected surface waters through groundwater, and a

petition for rehearing in the Kentucky appeal is now

pending. Ky. Waterways All. v. Ky. Utils. Co., No.

5:17-292-DCR, 2017 WL 6628917, at *9 (E.D. Ky.

Dec. 28, 2017); Cape Fear River Watch, Inc. v. Duke

Energy Progress, Inc., 25 F. Supp. 3d 798, 810

(E.D.N.C. 2014). Two others erroneously assumed

that a point source discharge directly into surface

waters was required. Tri-Realty Co. v. Ursinus Coll.,

No. 11-5885, 2013 WL 6164092, at *8 (E.D. Pa. Nov.

21, 2013); 26 Crown Assocs., LLC v. Greater New

Haven Reg’l Water Pollution Control Auth., No. 3:15cv-1439, 2017 WL 2960506, at *7 (D. Conn. July 11,

2017) (dictum), appeal pending. But the undisputed

proposition that groundwater is not a point source

does not exempt pollution from a point source that

travels a short distance through groundwater, just as

it does not exempt pollution from a point source that

flows over land or through the air to navigable

waters. As Justice Scalia explained in Rapanos and

the Second Circuit explained in Waterkeeper

Alliance, the Act’s protections are not restricted to

discharges that travel exclusively through point

sources. Rapanos, 547 U.S. at 743; Waterkeeper All.,

399 F.3d at 510–11; see infra at 19.

The Sixth Circuit’s recent divided decision

stands alone among the circuits. But with rehearing

petitions pending and the vast weight of authority

coming down on the other side, that decision gives no

reason to review the Fourth Circuit’s conclusion

here. In addition, the Sixth Circuit’s approach is

new to the Courts of Appeals, and other circuits have

not had an opportunity to consider it.

The novelty of the Sixth Circuit majority’s

conclusion is unsurprising, because its textual

analysis chose the wrong text.

Rather than

evaluating the relevant statutory text—prohibiting

the unpermitted “discharge of a pollutant,” which is

“any addition of any pollutant to navigable waters

from any point source”—the Sixth Circuit fixated on

a separate term, “effluent limitation.” But this term

applies only to certain permitted discharges and, as

the dissent noted, is “simply irrelevant to this

lawsuit.” Ky. Waterways All., 2018 WL 4559315, at

*14 (Clay, J., dissenting). Looking at one word,

“into,” from the definition of that inapposite term,

the majority hypothesized that “‘into’ indicates

directness.” Id. at *7 (majority opinion). That the

Sixth Circuit had to abandon the relevant statutory

text to reach this anomalous conclusion shows just

how far from the rest of the courts it diverged.

Moreover, its atextual “direct” discharge theory

contradicts the statute’s definition of “point source,”

which includes point sources like wells that can only

discharge to surface waters through groundwater,

along with CAFOs and containers, none of which

discharges directly into surface waters. 33 U.S.C.

§ 1362(14).

Unlike the Sixth Circuit’s outlier

position, the Fourth Circuit’s decision applies the

relevant statutory language and the logic of other

circuits.

The Fourth Circuit Followed the

Statute and this Court’s Precedent.

The Fourth Circuit took Congress at its word.

The text of the Clean Water Act prohibits the

unpermitted “discharge of any pollutant by any

person.” 33 U.S.C. § 1311(a). “[D]ischarge of a

pollutant” means “any addition of any pollutant to

navigable waters from any point source.”

Id.

§ 1362(12).

This broad language applies to

pollutants “from” any point source. It is not limited

to point sources that empty “directly into” navigable

waters, nor is it limited to additions of pollution “by”

the point source—“those are not the words that

Congress wrote.” Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617, 629 (2018).

As Justice Scalia explained in Rapanos, “[t]he

Act does not forbid the ‘addition of any pollutant

directly to navigable waters from any point source,’

but rather the ‘addition of any pollutant to navigable

waters,’” and courts “from the time of the CWA’s

enactment” have enforced the Act “even if the

pollutants discharged from a point source do not emit

‘directly into’ covered waters, but pass ‘through

conveyances’ in between.” 547 U.S. at 743 (citations

omitted).

Such conveyances need not be point

sources that discharge directly into navigable waters,

contrary to Petitioners’ amicus. Am. Br. Pac. Legal

Found. 7–8.

Instead, the Rapanos plurality recognized and

preserved two separate paths to Clean Water Act

coverage under existing precedent: chains of point

sources, and discharges from a point source that are

otherwise conveyed to navigable waters. 547 U.S. at

743–44. Because the relevant statutory language—

“any addition ... to navigable waters”—is not limited

to discharges “directly into” navigable waters, the

plurality concluded that “any addition” means “any

addition,” direct or indirect. Id. at 743. Indeed, no

Justice disagreed with this portion of the opinion.

This reasoning is consistent with South Florida

Water Management District v. Miccosukee Tribe of

Indians, which held that point sources are covered by

the Act even if they are not the original source. 541

U.S. 95, 105 (2004). It did not hold (as Petitioners

would have it) that the Act covers only point sources

that convey pollutants directly into navigable waters.

Id.

Consequently, as EPA and the Department of

Justice have stated, the Act covers “not only

discharges directly to navigable waters, but also

discharges of pollutants that travel from a point

source to navigable waters over the surface of the

ground or through underground means.” Brief for

the United States as Amicus Curiae, Haw. Wildlife

Fund v. Cty. of Maui, No. 15-17447 (9th Cir.)

(attached to Mtn. for Leave to File Supp. Materials,

Dkt. 16 (order granted, Dkt. 91)), at 10.

By contrast, Petitioners’ argument would insert

a requirement that only discharges from a point

source “directly” into navigable waters are covered.

But the text contains no such requirement. To be

covered by the Act, a discharge must originate “from”

a discernible, confined, and discrete conveyance, like

Petitioners’ pipe, and must be added “to” navigable

waters—but the Act is not confined to pollution by

one or more point sources feeding directly into the

navigable water. On this point the panel was

unanimous. Though Petitioners cite Judge Floyd’s

dissent, Pet.35, the dissent merely reasoned that “to

constitute a CWA violation, a point source must have

been involved in the discharging activity.” App.41

(emphasis added). And the Fourth Circuit recently

reaffirmed that “the addition of a pollutant into

navigable waters via groundwater” is subject to the

Act, although it concluded that the pollution in that

case did not originate from a point source—unlike

the statutorily enumerated point source pipe here.

Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403,

409 (4th Cir. 2018).

Petitioners would exempt pollution from a point

source to navigable waters by artificially segmenting

it into a so-called “initial discharge” and “subsequent

migration” through groundwater, labeling the latter

nonpoint source pollution. Pet.25; Am. Br. Am.

Petroleum Inst. 12. But nonpoint source pollution

“arises from many dispersed activities over large

areas, and is not traceable to any single discrete

source.” League of Wilderness Defs., 309 F.3d at

1183. As EPA explained, “nonpoint source pollution

does not result from a discharge at a specific, single

location (such as a single pipe).” EPA Office of

Water, Nonpoint Source Guidance at 3 (1987). 2

Petitioners’ pipe is the undisputed source of the

pollutants here, so the nonpoint source label cannot

apply.

Moreover, although the plain text of the Clean

Water Act dictated the Fourth Circuit’s holding, its

conclusion also honors the statutory scheme

Congress designed, balances other state and federal

regulatory regimes, and provides a practical

standard for courts to apply. As the Fourth Circuit

recognized, App.12 n.5, its decision respects

Congress’s decision not to include groundwater as a

“water of the United States,” which no party

disputes. Petitioners’ foray into legislative history,

Pet.22–23, only underscores this agreed-upon point.

But Congress also understood that surface

water discharges through groundwater can be

regulated by the Act: far from “creat[ing] a ground

water loophole through which the discharges of

pollutants could flow, unregulated, to surface water

…. Congress expressed an understanding of the

hydrologic cycle and an intent to place liability on

those responsible for discharges which entered the

‘navigable waters.’” NPDES Permit Regulation and

2 https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=910217GL.TXT.

Effluent Limitations Guidelines and Standards for

CAFOs, 66 Fed. Reg. 2,960, 3,016 (Jan. 12, 2001).

Indeed, Congress expressly noted when it passed the

Safe Drinking Water Act in 1977 that the Clean

Water Act already regulated underground deep

water wells when there is an associated “discharge

into navigable waters.” H.R. Rep. No. 93-1185, at

6457 (1974).

But the truest measure of Congress’s intent is

“the text of the enrolled bill that became law.”

Graham Cty. Soil & Water Conservation Dist. v.

United States, 559 U.S. 280, 302 (2010) (Scalia, J.,

concurring in part and concurring in judgment). In

addition to broadly defining “discharge of a

pollutant,” Congress defined a “point source” to

include a “container,” a “concentrated animal feeding

operation,” and a “well.” 33 U.S.C. § 1362(14).

Pollutants discharged through injection wells, like

those at issue in Hawai‘i Wildlife Fund, can reach

surface waters only through groundwater. See U.S.

Steel Corp., 556 F.2d at 852 (Act regulates

‘“pollutants’

when

injected

into

wells”

circumstances other than “‘production of oil or gas’”).

Additionally, pollutants discharged to navigable

waters from containers and CAFOs must also travel

some distance through or over other media before

reaching the navigable water.

Congress’s

designation of wells, containers, and CAFOs as point

sources reflects its intent that the Act regulate all

discharges from point sources to navigable waters,

direct and indirect, including discharges through

groundwater.

Congress has amended the Act

multiple times without refuting the courts’ and

EPA’s longstanding application of the statutory text

to such discharges. See EPA, History of the Clean

Water

Act,

https://www.epa.gov/lawsregulations/history-clean-water-act (last visited Oct.

14, 2018).

Allowing an exception to Clean Water Act

coverage

for

indirect

discharges

through

groundwater would create a gap in water protections

that Congress never intended. Petitioners and Amici

cite as an alternative the Resource Conservation and

Recovery Act (“RCRA”), among other statutes, but

they contend only that these statutes “address ...

groundwater pollution,” not that they prevent

surface water pollution like that prompting this

citizen suit. Pet.28, accord Am. Br. Chamber Comm.

7. For example, RCRA expressly excludes point

source discharges to surface waters. 42 U.S.C.

§ 6903(27); 40 C.F.R. § 261.4(a)(2) cmt. Petitioners’

argument is a red herring: Congress enacted the

Clean Water Act to address pollution of navigable

waters from point sources like Petitioners’ pipe, and

the Fourth Circuit correctly applied the Act to this

unlawful pollution of surface waters.

Likewise, this case illustrates that only the

Clean Water Act, not state groundwater regulation

that Petitioners and Industry amici tout, is directed

at stopping the ongoing addition of pollutants to

navigable waters. Pet.28; Am. Br. Chamber Comm.

5–6. The fact that state regulations apply to the spill

site but have failed to stop Petitioners’ ongoing

discharges to navigable waters demonstrates the

unique role Congress established for the Clean Water

Act: to eliminate illegal discharges of pollutants to

the nation’s waters.

Courts and agencies are adequately equipped to

apply the Act’s protection against such discharges—

and they already do.

EPA has explained that

applying the Act to discharges via a groundwater

connection to surface waters is “a factual inquiry like

all point source determinations.” 66 Fed. Reg. at

3,017. “A general hydrological connection between

all groundwater and surface waters is insufficient.”

Am. Br. U.S., Haw. Wildlife Fund, Dkt. 16 at 24.

Instead, what matters is whether pollutants

“proceed[] from the point of injection to the surface

water without significant interruption. Relevant

evidence includes the time it takes for a pollutant to

move to surface waters, the distance it travels, and

its traceability to the point source.” Id. at 26 (citing

66 Fed. Reg. at 3,017).

Consistent with the statute and EPA’s position,

the Fourth Circuit explained that covered discharges

“must be sufficiently connected to navigable waters”

and “traceable” in “measurable quantities” to the

point source based on a site-specific factual inquiry.

App.22, 25. Only those discharges flowing to surface

waters from an identifiable point source are subject

to the Clean Water Act.

While the Fourth Circuit and Ninth Circuit used

slightly different language to describe their analysis

of the covered discharges, the Fourth Circuit

acknowledged that there is no functional difference

in the factual inquiry: whether the pollutants being

added to surface waters are from the defendant’s

point source. App.24 n.12. As the Sixth Circuit

dissent stated, the plaintiff must “prove the existence

of pollutants in the navigable waters and ... persuade

the factfinder that the defendant’s point source is to

blame.” Ky. Waterways All., 2018 WL 4559315, at

*14. Indeed, courts must make this determination in

any unpermitted discharge case under the Clean

Water Act, regardless of whether it involves

groundwater.

Petitioners Misconstrue the Holding

Below.

Petitioners’ question presented misstates the

Fourth Circuit’s holding and makes plain that

certiorari is not appropriate.

Petitioners imply that the decision below

applied the Clean Water Act to “discharges into soil

or groundwater whenever there is a ‘direct

hydrological connection’ between the groundwater

and nearby navigable waters.” Pet. at i. But the

Fourth Circuit did no such thing. It ruled that the

Act applies to discharges to surface waters, not soil

or groundwater. The decision does not expand

“navigable waters” to include soil or groundwater,

nor does it eliminate the requirement for a point

source. The Conservation Groups will have to prove

at trial that petroleum pollutants from a point

source, Petitioners’ pipeline, are discharging to

Browns Creek and other surface waters after passing

a short distance over or under ground.

Petitioners’ first question also asks “[w]hether

the Clean Water Act’s permitting requirement is

confined to discharges from a point source to

navigable waters,” as if that approach contradicted

the Fourth Circuit’s ruling. But in fact, the Fourth

Circuit applied the Act only to discharges from a

point source (Petitioners’ pipe) to navigable waters.

What it refused to do was artificially confine the Act

to point sources that discharge “directly” or

“immediately” into navigable waters, because the Act

contains no such limitation.

Finally, the question frames the issue in terms

of a “permitting requirement,” implying that

discharges must be eligible for a permit in order to be

subject to the Act.

But the Act prohibits the

unpermitted discharge of pollutants and imposes

strict liability regardless of whether a permitting

program exists. See infra 37.

An Ongoing EPA Process Makes

Certiorari Inappropriate.

EPA currently is reviewing its position on the

scope of the Clean Water Act’s coverage of discharges

to surface waters via groundwater, further weighing

against certiorari. The Fourth Circuit’s reading of

the Act’s plain text parallels decades of EPA policy.

But with the agency now revisiting that

understanding, this Court’s involvement would be

premature.

Over four decades, through the administrations

of both parties, EPA consistently affirmed—by

regulation, guidance, and permitting practice—that

the Clean Water Act applies to discharges of

pollutants to navigable waters via groundwater

flows. EPA’s CAFO rulemaking summarized this

longstanding conclusion, recognized that whether

such a discharge “constitutes an illegal discharge to

waters of the U.S. if unpermitted is a fact specific

one,” and analogized it to other routine, fact-based

determinations under the Act. 66 Fed. Reg. at 3,018.

EPA clarified subsequently that “nothing in the 2003

[final] rule was to be construed to expand, diminish,

or otherwise affect the jurisdiction of the [Act] over

discharges to surface water via groundwater that has

a direct hydrologic connection to surface water.”

Revised NPDES Regulation and Effluent Limitations

Guidelines for CAFOs in Response to the

Waterkeeper Decision, 73 Fed. Reg. 70,417, 70,420

(Nov. 20, 2008). In 2015, EPA again reaffirmed its

“longstanding and consistent interpretation” and

noted that it is unaffected by “the exclusion of

groundwater from the definition of ‘waters of the

United States.’” EPA, Response to Comments—Topic

10 Legal Analysis 386 (June 30, 2015),

https://19january2017snapshot.epa.gov/sites/producti

on/files/201506/documents/cwr_response_to_comments_10_legal.p

df.

Long before its CAFO rulemaking, EPA

recognized that the Act covers such discharges.

Reissuance of NPDES General Permits for Storm

Water Discharges from Construction Activities, 63

Fed. Reg. 7,858, 7,881 (Feb. 17, 1998) (“EPA

interprets the CWA’s NPDES permitting program to

regulate discharges to surface water via groundwater

where there is a direct and immediate hydrologic

connection”); Amendments to the Water Quality

Standards Regulation that Pertain to Standards on

Indian Reservations, 56 Fed. Reg. 64,876, 64,892

(Dec. 12, 1991) (“the Act requires NPDES permits for

discharges to groundwater where there is a direct

hydrological connection between groundwaters and

surface waters.”); NPDES Permit Application

Regulations for Storm Water Discharges, 55 Fed.

Reg. 47,990, 47,997 (Nov. 16, 1990) (stormwater

rules cover discharges through hydrologically

connected groundwater).

EPA reiterated this

position in its Ninth Circuit amicus brief, and

explained that “EPA and states have been issuing

permits for this type of discharge” across many

industries. Am. Br. U.S., Haw. Wildlife Fund, Dkt.

16 at 30.

However, EPA is currently evaluating “whether

the Agency should consider clarification or revision”

of the Agency’s previous statements on this issue.

Clean Water Act Coverage of “Discharges of

Pollutants” via a Direct Hydrologic Connection to

Surface Water, 83 Fed. Reg. 7,126, 7,126 (Feb. 20,

2018). EPA has solicited public comment on its

previous statements and the issue of Clean Water

Act coverage of discharges via groundwater flows.

Id.

EPA’s current process may result in new

guidance or regulations. Although the Act’s text is

plain, and the Fourth Circuit’s decision turned on

that plain text, it would be premature for the Court

to intervene while this executive activity is in

process.

Further Review Would Unnecessarily

Disrupt Existing Clean Water Act

Regulation of Indirect Discharges.

Petitioners claim the decision below changed the

law. But in fact, Clean Water Act coverage of

discharges

through

groundwater

has

been

implemented for decades. Petitioners would upend

well-established Clean Water Act permitting practice

covering such discharges. Given the longstanding

and widespread application of the Act to these

discharges, a rush to certiorari is unwarranted.

Without any evidence, the state amici posit dire

consequences they claim might follow a decision by

this Court. But they fail to acknowledge that Clean

Water Act coverage of surface water discharges via

groundwater is already recognized in jurisdictions

spanning dozens of states, see supra at 10–14, and in

many instances has been for decades. At the same

time, they ignore the upheaval that would result if

this pollution of the Nation’s waters were removed

from the scope of the Clean Water Act.

Petitioners’ desired result would not only

contradict the plain language of the Act, but also

would dismantle Clean Water Act permitting

programs across the country that agencies have

administered for years. These protections have been

implemented by EPA consistently for four decades,

reaching back to EPA’s injection well permitting in

the 1970s. See U.S. Steel Corp., 556 F.2d at 852. As

EPA recently explained, “EPA and states have been

issuing permits for this type of discharge [through a

groundwater connection] from a number of

industries, including chemical plants, concentrated

animal feeding operations, mines, and oil and gas

waste-treatment facilities.” Am. Br. U.S., Haw.

Wildlife Fund, Dkt. 16 at 30.

For example, EPA’s standard permits for

CAFOs regulate discharges “to surface waters of the

United States through groundwater with a direct

hydrologic connection to surface waters.”

EPA

Region 6, NPDES General Permit for CAFOs in New

Mexico, Part III.D.1 (Sept. 1, 2016); 3 EPA Region 10,

NPDES Permit for CAFOs in Idaho, No. IDG010000

3 https://19january2017snapshot.epa.gov/sites/production/files/2016-

07/documents/nmg010000_final_permit_nm_cafo-signed.pdf.

at 30 (Mar. 29, 2012) 4 (requiring synthetic liner, leak

detection system, or other measures if “the potential

exists for the contamination of surface waters or

ground water with a direct hydrologic connection to

surface water”). CAFO permits in delegated state

programs around the country also regulate such

discharges.

E.g., Texas General Permit, No.

TXG920000 at 33–34 (July 9, 2009) 5 (requiring new

modified

“retention

control

structure”

impoundments to “meet the requirements for lack of

hydrologic connection or have a liner”).

NPDES permits also regulate discharges to

navigable waters through groundwater for, among

others, mining operations, wastewater treatment

plants,

and—contradicting

amici’s

fears

burdensome new permitting—the very few septic

systems that discharge to surface waters. E.g., EPA

Region 6, Questa Mine Final Permit Decision, Part

II.D (May 31, 2016)6 (prohibiting discharges through

groundwater “to the Red River of pollutants

traceable to point source mine operations except in

trace amounts”); EPA Region 10, Taholah Village

Wastewater Treatment Plant, No. WA0023434 7

(June 4, 2015) (wastewater treatment basins

discharging to Quinault River through groundwater);

EPA, Response to Congress on Use of Decentralized

4 https://www.epa.gov/sites/production/files/2017-12/documents/r10-

npdes-idaho-cafo-gp-id010000-final-permit-2012.pdf.

5https://www.tceq.texas.gov/assets/public/permitting/wastewate

r/general/txg920000.pdf.

6 https://www.env.nm.gov/swqb/NPDES/Permits/NM0022306-

Chevron-Questa.pdf.

7 https://www.epa.gov/sites/production/files/2017-09/documents/r10npdes-taholah-wa0023434-final-permit-2015.pdf.

Wastewater Treatment Systems 8 at 5 (Apr. 1997),

(the rare septic systems “which discharge to a

surface water must, and can,” meet requirements of

NPDES permitting program); accord United States v.

Lucas, 516 F.3d 316, 332 (5th Cir. 2008)

(underground septic systems discharging to

jurisdictional wetlands require NPDES permits).

All these existing permitting programs regulate

only the pollution of surface waters from point

sources, just as the Fourth Circuit’s decision does.

The Fourth Circuit’s decision maintains the Act’s

limited scope, prohibiting unpermitted discharges

from point sources to navigable waters. However, to

exempt discharges that are not “directly into”

navigable waters would gut these existing permitting

programs, throwing the settled practice of agencies

and industries into uncertainty.

Such a limitation would also undo still other

permitting programs dealing with surface flows of

pollution. When manure from a CAFO is sprayed on

a field and runs off to nearby navigable waters,

nothing exempts this discharge from the Clean

Water Act merely because it is not channeled or

confined continuously:

[W]hether the land application run-off has

been “collected” or “channelized” at the

land application area is irrelevant to the

determination regarding whether such runoff constitutes a CAFO discharge .... [A]

CAFO is, itself, a “channel” under the

Act—it is, of course, expressly included in

the list of examples of the types of “point

8 https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=200047VF.TXT.

sources” the EPA may regulate. Thus, any

discharge “from” a CAFO is already a point

source discharge. Requiring that manure,

litter, or process wastewater be separately

channelized at the land application site

before any runoff could be considered a

“point source discharge” would be, in effect,

to impose a requirement not contemplated

by the Act: that pollutants be channelized

not once but twice before the EPA can

regulate them.

Waterkeeper All., 399 F.3d at 510–11. Petitioners’

argument that only discharges “directly into”

navigable waters should be covered, if adopted on

further review, would undo EPA’s regulation of

pollution from these overland CAFO discharges just

as it would the regulation of pollution through

groundwater.

Far from supporting the existing

regulatory scheme, Petitioners’ argument would

overturn it. The Court should decline Petitioners’

invitation to do so.

II.

Certiorari Is Not Warranted on

Petitioners’ Ongoing Discharge of

Pollutants to Waters of the United

States.

Because the Conservation Groups properly

alleged Petitioners were “in violation” of the Clean

Water Act, the Fourth Circuit correctly found subject

matter jurisdiction over this citizen suit. 33 U.S.C.

§ 1365(a)(1). Indeed, if the Court reviewed the

Fourth Circuit’s decision and disagreed on this

question, it would lack jurisdiction to decide the

discharge through groundwater question on which

Petitioners focus.

The Fourth Circuit’s decision, on unusual facts,

that the Conservation Groups alleged an ongoing

violation did not create a circuit split. Rather, its

holding followed directly from the statutory

language, this Court’s holding in Gwaltney, and the

facts of the case.

The Fourth Circuit’s Holding Adheres

to Gwaltney and the Statutory Text.

The Conservation Groups’ complaint set out

each element of Petitioners’ ongoing violation of the

Act’s prohibition against the unpermitted “addition

of any pollutant to navigable waters from any point

source,” 33 U.S.C. § 1362(12): the ongoing addition

(through a short stretch of soil and groundwater) of a

pollutant (petroleum) to navigable waters (creeks

and wetlands) from a point source (Petitioners’ pipe).

Petitioners fail to identify a single element of the

statutory definition of “discharge” that the

Conservation Groups have not alleged.

Petitioners’ question presented misunderstands

the text and structure of the Clean Water Act.

Petitioners did not violate the Act when their pipe

broke; they violated the Act only when they added

petroleum to the navigable waters from that pipe.

Likewise, Petitioners did not stop adding pollutants

to the waterway when they patched the pipe; they

have

not

“permanently

ceased

discharging

pollutants” when their “pollutants are still reaching

navigable water through groundwater.” Pet. at i.

That addition of pollutants to the navigable waters is

the unlawful discharge and the ongoing violation.

Petitioners’ argument that the discharge

stopped once it fixed the pipe has no basis in the text

of the Act or Gwaltney. As the Fourth Circuit

explained, Congress intended that “‘the discharge of

pollutants into the navigable waters be eliminated,’

33 U.S.C. § 1251(a)(1), not that the originating

source of pollutants be corrected.”

App.17.

Petitioners’ theory would ignore the statutory text

and apply the Act only to “immediate discharges,”

where pollutants are added from a point source to

navigable waters instantaneously. But as the Sixth

Circuit has explained, “temporally tying the

‘addition’ (or ‘discharge’) of the pollutant to the ‘point

source’ does not follow the plain language of the

Clean Water Act.” Nat’l Cotton Council of Am. v.

EPA, 553 F.3d 927, 939 (6th Cir. 2009). The court

refused to “[i]nject[] a temporal requirement to the

‘discharge of a pollutant’”; such a rewrite was

“unsupported by the Act.” Id.

Under the Clean Water Act’s plain language, a

break in a pipe is not a violation in itself. Indeed, if

Petitioners prevented their spilled petroleum from

entering navigable waters, there would be no

unpermitted discharge even if the pipe had not been

fixed. But the continuing addition of the pipe’s

pollutants to navigable waters does violate the Act,

and repairing the pipe does not stop this violation.

Finding an ongoing discharge on the facts pled

is faithful to Gwaltney. In Gwaltney, the polluter

had stopped exceeding its permit limits weeks before

plaintiffs filed suit and was no longer discharging “in

violation of” its permit. 484 U.S. at 53–55. Here,

Petitioners’ continuing violation—their unpermitted

addition of pollutants to the waterway—is in no

sense “wholly past,” id. at 67, but is occurring today.

The decision below also heeds this Court’s

recognition in Gwaltney of the important but limited

role citizen suits play in enforcing the Act. Citizen

suits “permit[] citizens to abate pollution when the

government cannot or will not command compliance.”

Id. at 62. Petitioners have never stopped the flow of

petroleum to Browns Creek. South Carolina has not

“command[ed] compliance” by compelling Petitioners

to stop the addition of pollutants to the navigable

water. Id. at 60. Accordingly, the Conservation

Groups’ action “supplement[s] rather than …

supplant[s] governmental action.” Id.

If Petitioners or South Carolina had stopped

this addition of pollutants to navigable waters, the

violation would have ceased. Petitioners would not

have faced a Clean Water Act citizen suit, no matter

how much they contaminated groundwater, because

the Act does not protect groundwater. But because

Petitioners continue to add pollutants to navigable

waters, the plain text of the Act and this Court’s

precedent make clear that the ongoing discharge is a

continuing violation subject to citizen enforcement.

There Is No Circuit Split.

Petitioners have cited no other Court of Appeals

decision, including Hamker v. Diamond Shamrock

Chemical Co., that addresses ongoing pollution of

navigable waters from a point source that has

stopped emitting pollutants. 756 F.2d 392 (5th Cir.

1985). The Court should not address a question that

has not divided the courts of appeals.

The Fourth Circuit’s decision aligns with

Hamker. Both decisions agree that citizen suits

require a continuing violation, and a continuing

violation requires an ongoing discharge to navigable

waters. They differ on the facts. The plaintiffs in

Hamker pled only that oil “is leaking into ground

water and has left lasting damage to grasslands”—

they did “not allege a continuing discharge” to

navigable waters.

Id. at 397.

Here, as the

Conservation Groups allege, Petitioners’ massive

petroleum spill produced a flow of pollutants

discharging to the waterway that continues today.

App.6–7. As the Fourth Circuit recognized when it

found the two decisions consistent, the allegations

crucially missing in Hamker are present here.

App.17–18.

Likewise, in Day, LLC v. Plantation Pipe Line

Co., residents harmed by another recent Plantation

Pipeline spill identified the “continued presence of

petroleum” on their properties, but no continuing

addition to navigable waters. 315 F. Supp. 3d 1219,

1236, 1236 (N.D. Ala. 2018). And like Petitioners’

question presented, Day assumes “discharge” means

the release of pollutants, not the “addition” to

navigable waters as the Act defines it. Id. at 1239.

Nor is this a case where leaks from long-abandoned

facilities have migrated slowly or where there are

only residual effects from events of years before. See,

e.g., Aiello v. Town of Brookhaven, 136 F. Supp. 2d

81, 85 (E.D.N.Y. 2001); Wilson v. Amoco Corp., 33 F.

Supp. 2d 969, 975 (D. Wyo. 1998); Friends of Santa

Fe Cty., 892 F. Supp. at 1359.

Whether Petitioners’ Discharge of

Pollutants to Navigable Waters Is

Ongoing Is a Fact-Bound Question of

Limited Importance.

This decision is based on unusual factual

circumstances—a spill large enough and close

enough to the waterway that it continues discharging

after the point source is patched—that are unworthy

of this Court’s review.

This ongoing discharge decision does not affect

any permitting program for everyday industrial

discharges or the Act’s strict liability prohibition

against unpermitted discharges. Petitioners say

they are concerned about liability for inadvertent

discharges for which they could not obtain a permit.

Pet.35. But the fact that there is no Clean Water Act

permitting program for spills or ruptured pipelines

has no bearing on Petitioners’ liability for continuing

to pollute navigable waters.

Petitioners and their Petroleum Amici’s

difficulty stems not from the Fourth Circuit’s holding

but from the fact that the Clean Water Act applies to

unintended discharges. In Sierra Club, Lone Star

Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546,

558–62 (5th Cir. 1996), the oil company argued it

could not be held liable when EPA had not

established a permitting program for its discharges.

The court held: “Nothing in the [Act] limits a citizen’s

right to bring an action against a person who is

allegedly discharging a pollutant without a permit

solely to those cases where EPA has promulgated an

effluent limitation or issued a permit that covers the

discharge.” Id. at 561; accord United States v. Ortiz,

427 F.3d 1278, 1284 (10th Cir. 2005) (Act applies

when no permit is available); Ass’n to Protect

Hammersley v. Taylor Res., Inc., 299 F.3d 1007,

1011–13 (9th Cir. 2002) (citizens may sue for

unpermitted discharges when state agency has no

applicable permit program).

Further review of this ongoing violation

question will not change the strict liability standard

to which Petitioners are subject.

The only

uncertainty for entities like Petitioners and their

Petroleum Amici arises from pipeline spills

themselves—not from the clear protections of the

Clean Water Act.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

Frank S. Holleman III

Counsel of Record

Nicholas S. Torrey

Leslie Griffith

SOUTHERN ENVIRONMENTAL LAW CENTER

601 West Rosemary Street, Suite 220

Chapel Hill, North Carolina 27516-2356

(919) 967-1450

fholleman@selcnc.org

Christopher K. DeScherer

SOUTHERN ENVIRONMENTAL LAW CENTER

463 King Street, Suite B

Charleston, South Carolina 29403

(843) 720-5270

October 23, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.