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

Nos. 18-260 and 18-268

In the Supreme Court of the United States

COUNTY OF MAUI, HAWAII, PETITIONER

v.

HAWAII WILDLIFE FUND, ET AL.

KINDER MORGAN ENERGY PARTNERS, L.P., ET AL.,

PETITIONERS

v.

UPSTATE FOREVER, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE NINTH AND FOURTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

ERIC GRANT

Deputy Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

ALLON KEDEM

Assistant to the Solicitor

General

JUDY B. HARVEY

MATTHEW R. OAKES

FREDERICK H. TURNER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a “discharge of a pollutant,” 33 U.S.C.

1362(12), occurs when a pollutant is released from a

point source, travels through groundwater, and ultimately migrates to navigable waters.

2. Whether the Court should grant certiorari to address the other issues on which petitioners seek review.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Discussion:

A. Review is warranted to resolve a circuit conflict on

the question whether the CWA’s prohibition on the

unpermitted discharge of pollutants covers activities

that cause pollutants to be conveyed through

groundwater to waters of the United States .................. 9

B. The Court should not review the other questions

presented by petitioners ................................................. 17

Conclusion ................................................................................... 20

TABLE OF AUTHORITIES

Cases:

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987) ................................ 3, 7, 15

Hamker v. Diamond Shamrock Chem. Co.,

756 F.2d 392 (5th Cir. 1985) ......................................... 18, 19

Hernandez v. Esso Standard Oil Co., 599 F. Supp.

2d 175 (D.P.R. 2009) ........................................................... 13

Kentucky Waterways Alliance v. Kentucky Utils.

Co., 905 F.3d 925 (6th Cir. 2018), petition for reh’g

denied, No. 18-5115 (6th Cir. Nov. 26, 2018) ........ 10, 11, 12

Rapanos v. United States, 547 U.S. 715 (2006) .............. 5, 10

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

145 F. Supp. 3d 601 (E.D. Va. 2015) ................................. 13

Tennessee Clean Water Network v. Tennessee Valley

Auth., 905 F.3d 436 (6th Cir. 2018), petition for

reh’g pending, No. 17-6155 (6th Cir. filed Oct. 22,

2018) ......................................................................... 11, 12, 13

(III)

IV

Case—Continued:

Page

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

Water Pollution Control Auth., No. 15-cv-1439,

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

pending, No. 17-2426 (2d Cir. argued Apr. 18, 2018) ...... 13

Statutes and rule:

Clean Water Act, 33 U.S.C. 1251 et seq. ................................ 2

§ 404, 33 U.S.C. 1344 ......................................................... 3

33 U.S.C. 1251(a) ............................................................... 2

33 U.S.C. 1251(b) ............................................................... 2

33 U.S.C. 1252(a) ............................................................. 17

33 U.S.C. 1254(a)(5) ......................................................... 17

33 U.S.C. 1282(b)(2) ........................................................ 17

33 U.S.C. 1288(b)(2) ........................................................ 17

33 U.S.C. 1311(a) ..................................................... 2, 9, 17

33 U.S.C. 1314(a) .......................................................... 17

33 U.S.C. 1314(f ) .......................................................... 17

33 U.S.C. 1319 .............................................................. 3, 14

33 U.S.C. 1329............................................................... 17

33 U.S.C. 1342(a) ............................................................... 3

33 U.S.C. 1342(b) ............................................................... 3

33 U.S.C. 1342(b)(7) ........................................................ 14

33 U.S.C. 1342(d) ............................................................... 3

33 U.S.C. 1362(6) ............................................................. 13

33 U.S.C. 1362(7) ............................................................... 2

33 U.S.C. 1362(12)(A) .................................... 1, 2, 9, 12, 13

33 U.S.C. 1362(14) ....................................................... 2, 13

33 U.S.C. 1365 .................................................................... 3

33 U.S.C. 1365(a)(1) ........................................................... 3

Resource Conservation and Recovery Act,

42 U.S.C. 6901 et seq. .......................................................... 11

V

Statute and rule—Continued:

Page

Safe Drinking Water Act, 42 U.S.C. 300f et seq. .................. 4

6th Cir. R. 35(b) ..................................................................... 12

Miscellaneous:

83 Fed. Reg. 7126 (Feb. 20, 2018) ................................ 1, 4, 17

In the Supreme Court of the United States

No. 18-260

COUNTY OF MAUI, HAWAII, PETITIONER

v.

HAWAII WILDLIFE FUND, ET AL.

No. 18-268

KINDER MORGAN ENERGY PARTNERS, L.P., ET AL.,

PETITIONERS

v.

UPSTATE FOREVER, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE NINTH AND FOURTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari in No. 18-260 should

be granted, limited to the first question presented in

that petition—namely, whether a “discharge of a pollutant,” 33 U.S.C. 1362(12)(A), occurs when a pollutant is

released from a point source, travels through groundwater, and ultimately migrates to navigable waters.

(1)

2

The petition for a writ of certiorari in No. 18-268 should

be held pending the Court’s disposition of the petition

in No. 18-260.

STATEMENT

1. Congress enacted the Clean Water Act (CWA or

Act), 33 U.S.C. 1251 et seq., to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. 1251(a), while “recogniz[ing],

preserv[ing], and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution,” 33 U.S.C. 1251(b). Subject to certain

exceptions that are not implicated here, Congress prohibited the “discharge of any pollutant” unless authorized by a permit issued in accordance with the Act.

33 U.S.C. 1311(a). The CWA defines the term “discharge of a pollutant” to include “any addition of any

pollutant to navigable waters from any point source.”

33 U.S.C. 1362(12)(A). The Act defines the term “navigable waters” as “the waters of the United States, including the territorial seas.” 33 U.S.C. 1362(7). It defines

the term “point source” as “any discernible, confined

and discrete conveyance, including but not limited to

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

fissure, container, rolling stock, concentrated animal

feeding operation, or vessel or other floating craft, from

which pollutants are or may be discharged.” 33 U.S.C.

1362(14).

The CWA establishes permitting programs through

which appropriate federal or state officials may authorize discharges of pollutants from point sources into the

waters of the United States. Under the National Pollutant Discharge Elimination System (NPDES) program,

the Environmental Protection Agency (EPA) may permit the discharge of pollutants other than dredged or

3

fill material. 33 U.S.C. 1342(a). * A State that meets certain statutory criteria may be authorized by the EPA to

administer its own NPDES program. 33 U.S.C. 1342(b).

When a State receives such authorization, the EPA retains oversight and enforcement authority. 33 U.S.C.

1319, 1342(d). As suggested by its name, the goal of the

NPDES program is the elimination of uncontrolled

point-source discharges to waters of the United States.

The CWA authorizes enforcement actions to be filed

either by government officials, see 33 U.S.C. 1319, or

by private citizens under specified circumstances, see

33 U.S.C. 1365. A citizen suit may be filed against a person “who is alleged to be in violation of ” specified CWA

requirements. 33 U.S.C. 1365(a)(1). The Court has construed that language to require “that citizen-plaintiffs

allege a state of either continuous or intermittent violation—

that is, a reasonable likelihood that a past polluter will

continue to pollute in the future.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,

57 (1987).

2. The citizen plaintiffs in these cases (respondents

in this Court) allege that petitioners violated the CWA

by discharging pollutants to navigable waters, as defined by the CWA, without NPDES permits.

a. The County of Maui owns and operates four wells

at a wastewater treatment plant that processes four

million gallons of sewage per day from approximately

40,000 people. 18-260 (Maui) Pet. App. 7. Treated

wastewater is then injected via the County’s wells into

the groundwater, some of which enters the Pacific

Ocean via submarine seeps. Id. at 7-9. Approximately

A separate permitting program established by Section 404 of the

Clean Water Act, 33 U.S.C. 1344, which governs the discharge of

dredged or fill material into navigable waters, is not implicated here.

*

4

“one out of every seven gallons of groundwater entering

the ocean near [the plant] is comprised of effluent from

the wells.” Id. at 9. Those wells operate under permits

that authorize injection of wastewater underground

pursuant to the federal Safe Drinking Water Act,

42 U.S.C. 300f et seq. See Maui Pet. App. 37; Maui Pet. 7.

A number of organizations filed suit against the

County, alleging that the County was violating the

CWA by “discharging effluent through groundwater

and into the ocean without the [NPDES] permit required.” Maui Pet. App. 10-11. In a series of rulings,

the district court found in favor of the plaintiffs, based

in part on its determination that “[a] party is liable under the Clean Water Act if, without an NPDES permit,

it indirectly discharges a pollutant into the ocean

through a groundwater conduit.” Id. at 56 (emphasis

omitted); see id. at 32-84, 85-100. The court also held

that the County could not assert a due process defense

to the imposition of civil monetary penalties because it

had received fair notice that its conduct was prohibited

by the CWA. Id. at 101-119.

The Ninth Circuit affirmed. Maui Pet. App. 1-31.

After concluding that each of the County’s wells was a

“point source” under the Act, id. at 13-16, the court addressed the County’s argument that, in order for a

CWA “discharge” to occur, “the point source itself must

convey the pollutants directly into the navigable water,”

rather than indirectly through groundwater (as in the

case of wastewater from the County’s wells). Id. at 16.

The court rejected the County’s argument, holding that

“an indirect discharge from a point source to a navigable water suffices for CWA liability to attach.” Id. at 19.

5

In support of that conclusion, the Ninth Circuit relied in part on Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). In that

opinion, the Ninth Circuit explained, “Justice Scalia

recognized the CWA 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.’ ” Maui Pet. App. 21 (quoting Rapanos,

547 U.S. at 743) (internal quotation marks omitted).

The Ninth Circuit also described the plurality opinion

as “recogniz[ing] that ‘from the time of the CWA’s enactment, lower courts have held that the discharge into

intermittent channels of any pollutant that naturally

washes downstream likely violates § 1311(a), even if the

pollutants discharged from a point source do not emit

directly into covered waters, but pass through conveyances in between.’ ” Id. at 22 (quoting Rapanos,

547 U.S. at 743) (internal quotation marks omitted).

While recognizing that the Rapanos plurality opinion

was not “controlling,” the court concluded that the opinion offered a “persuasive” argument that pollutants

need not “be discharged ‘directly’ to navigable waters

from a point source” to fall within the Act’s coverage.

Id. at 23.

The Ninth Circuit thus held the County liable under

the CWA because:

(1) the County discharged pollutants from a point

source, (2) the pollutants are fairly traceable from

the point source to a navigable water such that the

discharge is the functional equivalent of a discharge

into the navigable water, and (3) the pollutant levels

reaching navigable water are more than de minimis.

Maui Pet. App. 24. The court viewed its “fairly traceable” standard (point 2 above) as more faithful to the

6

statute than an alternative standard, advocated by the

United States in an amicus brief, that would have “requir[ed] a ‘direct hydrological connection’ between the

point source and the navigable water.” Id. at 24 n.3.

Finally, the Ninth Circuit held that the County had

received “fair notice” that its conduct was governed by

the CWA. Maui Pet. App. 29-30. The court found the

text of the statute sufficiently clear to satisfy due process requirements. Id. at 30. The court also rejected

the County’s argument that “the state agency tasked

with administering the NPDES permit program * * *

has maintained [that] an NPDES permit is unnecessary

for the wells,” finding instead that the state agency

“ha[d] not solidified its position.” Ibid.

b. In 2014, an underground pipeline owned by a subsidiary of Kinder Morgan Energy Partners, L.P. (together with its subsidiary, Kinder Morgan) ruptured,

spilling hundreds of thousands of gallons of gasoline in

Anderson County, South Carolina. 18-268 (Kinder) Pet.

App. 1-2, 6. Although the rupture was repaired, and

much of the gasoline was recovered, “at least 160,000

gallons allegedly remain[ ] unrecovered.” Id. at 6. Two

conservation groups brought suit against Kinder Morgan under the CWA, alleging that the spill has caused

gasoline and related contaminants to seep into nearby

rivers, lakes, and wetlands, including the Savannah

River. Id. at 6-7 & n.2. They also alleged “that a ‘plume’

of petroleum contaminants continues to migrate into

these waterways years later through ground water and

various natural formations at the spill site, including

‘seeps, flows, fissures, and channels.’ ” Id. at 7.

The district court dismissed the suit. Kinder Pet.

App. 54-73. In the court’s view, the plaintiffs’ complaint

was inadequate because it “failed to allege any facts to

7

support the position that the pipeline discharged petroleum directly into navigable waters.” Id. at 62. The

court viewed that failure as fatal to the plaintiffs’ claims,

concluding that “[t]he migration of pollutants through

soil and groundwater is nonpoint source pollution that

is not within the purview of the CWA.” Ibid. The court

thus rejected the plaintiffs’ argument that the Act

“appl[ies] to claims involving discharge of pollution to

groundwater that is hydrologically connected to surface

waters.” Id. at 72.

The Fourth Circuit vacated and remanded. Kinder

Pet. App. 1-26. The court first observed that the CWA

authorizes private citizens to file suit under the Act

“only if the complaint alleges an ongoing violation,” id.

at 12 (citing Gwaltney, 484 U.S. at 64); see 33 U.S.C.

1365(a); p. 3, supra, a requirement the court understood

to be “jurisdictional in nature,” Kinder Pet. App. 12.

The court then determined that the plaintiffs had

properly alleged an ongoing CWA violation. The court

explained that, although Kinder Morgan had “repaired

the initial cause of the pollution,” id. at 14, “[t]he plaintiffs claim that pollutants originating from [a] point

source continue to be ‘added’ to bodies of water that allegedly are navigable waters under the Act,” which in

the court’s view suffices “for a violation to be ongoing,”

id. at 15.

The Fourth Circuit then addressed the question

“whether a discharge of a pollutant that moves through

ground water before reaching navigable waters may

constitute a discharge of a pollutant, within the meaning

of the CWA.” Kinder Pet. App. 19. The court answered

that question in the affirmative, based on its view that

“a discharge of a pollutant under the Act need not be a

discharge ‘directly’ to a navigable water from a point

8

source.” Ibid.; see id. at 19-20 (discussing Justice

Scalia’s plurality opinion in Rapanos). The court held

that, where pollution originating at a point source “has

migrated and is migrating through ground water to navigable waters,” that movement qualifies as an “indirect

discharge” covered by the CWA. Id. at 22.

The Fourth Circuit cautioned, however, that indirect

discharges still “must be sufficiently connected to navigable waters to be covered under the Act.” Kinder Pet.

App. 22. The court held that discharges “through

ground water” will give rise to CWA liability only where

“the connection between a point source and navigable

waters [is] clear.” Ibid. That will be true, the court explained, only where there exists a “direct hydrological

connection” between the point source and a navigable

water. Ibid.; see id. at 24 n.12 (finding “no functional

difference between the Ninth Circuit’s fairly traceable

concept and the direct hydrological connection concept”). Applying that test to the facts before it, the

court concluded that the plaintiffs had adequately

demonstrated a direct hydrological connection between

the spill from Kinder Morgan’s pipeline and the addition

of gasoline to navigable waters nearby. Id. at 24-26.

Judge Floyd dissented. Kinder Pet. App. 27-51. In

his view, the plaintiffs had failed to allege “an ongoing

discharge of pollutants from a point source, because the

only point source at issue—the pipeline—is not currently leaking or releasing any pollutants.” Id. at 40;

see id. at 41 (“[F]or there to be an ongoing CWA violation, a point source must currently be involved in the

discharging activity.”). Judge Floyd understood the

plaintiffs to have alleged only the “[o]ngoing migration”

of pollution “from a site contaminated by a past discharge.” Id. at 44. Judge Floyd concluded that such

9

ongoing migrations are not covered by the CWA because “ongoing migration does not involve a point

source,” but instead “is, by definition, nonpoint source

pollution, which is outside of the CWA’s reach.” Ibid.;

see id. at 44-46 (point source not involved); id. at 46-48

(migration of pollutants is nonpoint-source pollution).

DISCUSSION

The CWA prohibits the unpermitted “discharge of

[a] pollutant,” 33 U.S.C. 1311(a), a term defined to include “any addition of any pollutant to navigable waters

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

courts of appeals are divided on the question whether a

CWA “discharge of a pollutant” occurs when pollutants

are released from a point source to groundwater and

migrate through, or are conveyed by, groundwater to

navigable waters. The Court should resolve that important question. The other questions raised by petitioners, however, do not warrant review at this time.

A. Review Is Warranted To Resolve A Circuit Conflict On

The Question Whether The CWA’s Prohibition On The

Unpermitted Discharge Of Pollutants Covers Activities

That Cause Pollutants To Be Conveyed Through

Groundwater To Waters Of The United States

1. The courts below addressed circumstances in

which pollutants emitted from point sources reached

the waters of the United States after migrating through

groundwater. Both courts held that the emitting activities constituted pollutant “discharge[s]”—i.e., “addition[s]

of any pollutant to navigable waters from any point

source,” 33 U.S.C. 1362(12)(A).

The Ninth Circuit, under what it characterized as an

“indirect discharge theory,” Maui Pet. App. 20, held the

County liable for its emission of treated wastewater

10

from a point source (four wells at a treatment plant) to

the ocean via groundwater connecting them. In the

court’s view, because the wastewater was “fairly traceable” from the point source to the ocean, its release into

the groundwater was “the functional equivalent of a discharge into the navigable water” itself. Id. at 24. The

Fourth Circuit similarly held that leaked gasoline

“pass[ing] from a point source” (a broken pipeline)

“through ground water to navigable waters may support a claim under the CWA,” Kinder Pet. App. 22, at

least where the plaintiff has established a “direct hydrological connection” between the point source and the

navigable waters, ibid. In support of those rulings, both

courts relied in part on the same language from Justice

Scalia’s plurality opinion in Rapanos v. United States,

547 U.S. 715, 743 (2006). See Maui Pet. App. 21-24;

Kinder Pet. App. 19-20.

The Sixth Circuit, by contrast, recently issued a pair

of decisions holding that the prohibition on the “discharge of [a] pollutant” under Section 1311(a) was inapplicable under analogous circumstances. The plaintiffs

in Kentucky Waterways Alliance v. Kentucky Utilities

Co., 905 F.3d 925 (6th Cir. 2018), brought suit under the

Act against the operator of a coal-burning power plant

that stored leftover coal ash in man-made ponds. Id. at

930-931. The plaintiffs alleged that, because the ponds

sat atop porous karst terrain, “groundwater flows

cause[d] the ash ponds to release pollutants into Herrington Lake.” Id. at 931. The plaintiffs argued that

the groundwater was “a medium through which pollutants pass before being discharged into navigable waters,” thus establishing a “hydrological connection” between those waters and the introduction of coal ash into

the ponds. Id. at 932-933.

11

The Sixth Circuit “disagree[d] with the decisions” of

the Ninth and Fourth Circuits in the present cases, and

it rejected the plaintiffs’ theory of CWA liability for indirect pollutant discharges through groundwater. Kentucky Waterways, 905 F.3d at 933. In the court’s view,

that theory was “foreclose[d]” by the Act’s text, which

the court interpreted as applying only where pollution

is added directly to navigable waters “by virtue of a

point-source conveyance,” rather than through some

other mechanism. Id. at 934. The court regarded the

plurality opinion in Rapanos as inapposite, stating that

the opinion “answer[ed] an entirely different legal question” and addressed only the movement of pollutants via

“intermediary point sources.” Id. at 936. The Sixth Circuit noted that “other environmental statutes,” such as

the Resource Conservation and Recovery Act, 42 U.S.C.

6901 et seq., are “specifically designed to cover solid

waste” such as coal ash. Kentucky Waterways, 905 F.3d

at 937-938. The court also viewed application of the

CWA’s permitting regime to discharges through

groundwater as inconsistent with the CWA’s “purpose

of fostering cooperative federalism.” Id. at 937.

The Sixth Circuit applied the reasoning of Kentucky

Waterways in Tennessee Clean Water Network v. Tennessee Valley Authority, 905 F.3d 436 (2018), petition

for reh’g pending, No. 17-6155 (filed Oct. 22, 2018),

which also involved allegations that pollutants from coal

ash ponds had been conveyed through groundwater into

navigable waters (there, the Cumberland River), id. at

438. The court reiterated its view that the there was no

“discharge of a pollutant” under those circumstances

because, “when the pollutants are discharged to the

river, they are not coming from a point source; they are

coming from groundwater which is a nonpoint-source

12

conveyance.” Id. at 444 (citation and emphasis omitted).

The court again found the Rapanos plurality opinion to

be inapposite, id. at 444-445, and it again viewed the

plaintiffs’ theory as inconsistent with other federal environmental statutes and with Congress’s goal of preserving a primary role for state protection of groundwater,

id. at 445-446.

2. The courts of appeals thus are squarely in conflict

on the proper reading of the CWA’s definition of the

term “discharge of a pollutant.” 33 U.S.C. 1362(12)(A).

In particular, the circuits have disagreed on the question whether that term encompasses situations where

pollutants are released from point sources but subsequently migrate to navigable waters through groundwater. That conflict warrants resolution by this Court.

Respondents argue that this Court’s resolution of

the conflict is presently unnecessary because a petition

for rehearing remains pending in Tennessee Clean Water Network. See Maui Br. in Opp. 17; Kinder Br. in

Opp. 1-2. But even if the petition for rehearing were

granted, thereby vacating the panel’s decision, see 6th

Cir. R. 35(b), the Sixth Circuit’s decision in Kentucky

Waterways—as to which a separate petition for rehearing (No. 18-5115) was denied on November 26, 2018—

would remain in force.

Respondents in Maui also contend that the Sixth

Circuit’s decisions “strongly suggested that the coal ash

ponds were not point sources to begin with,” and that

“[t]he absence of any point source [would be] an independent ground for concluding no CWA liability exists.”

Maui Br. in Opp. 18. In a footnote in its Kentucky Waterways opinion, the Sixth Circuit expressed “doubt”

that coal ash ponds are point sources, 905 F.3d at 934

n.8, but it did not resolve the issue or rest its decision

13

on that ground. And in Tennessee Clean Water Network, the court was even more explicit that it “d[id]

not base [its] decision” on that argument. 905 F.3d at

443 n.6. The Sixth Circuit’s reference to the possible

nonpoint-source status of coal ash ponds thus was not an

alternative ground for the judgments in those cases, but

is at most an additional argument that might be available to the defendants if this Court grants certiorari and

disagrees with the Sixth Circuit’s interpretation of Section 1362(12)(A).

The circuit conflict is important. In addition to the

Fourth, Sixth, and Ninth Circuit decisions described

above, numerous district courts have confronted cases

involving “claim[s] that unpermitted wastes are reaching ‘waters of the United States’ by migration through

groundwater that is hydrologically connected.” Hernandez v. Esso Standard Oil Co., 599 F. Supp. 2d 175,

179 (D.P.R. 2009) (emphasis omitted); see 26 Crown Assocs., LLC v. Greater New Haven Reg’l Water Pollution

Control Auth., No. 15-cv-1439, 2017 WL 2960506, at *8*9 (D. Conn. July 11, 2017), appeal pending, No. 17-2426

(2d Cir. argued Apr. 18, 2018); Sierra Club v. Virginia

Elec. & Power Co., 145 F. Supp. 3d 601, 607 (E.D. Va.

2015) (citing decisions on both sides of the “split”). As

those cases illustrate, the CWA applies to an expansive

range of “pollutant[s],” 33 U.S.C. 1362(6), discharged

from a broad variety of “point source[s],” 33 U.S.C.

1362(14). Given the potential breadth of those provisions, and the ways in which groundwater may be connected to navigable waters, the question presented here

has the potential to affect federal, state, and tribal regulatory efforts in innumerable circumstances nationwide. The implications for regulated parties are also

significant, including because CWA violators may face

14

serious civil penalties and, in certain cases, criminal

punishment. See 33 U.S.C. 1319; see also 33 U.S.C.

1342(b)(7).

3. On February 20, 2018, the EPA requested comment on “whether pollutant discharges from point

sources that reach jurisdictional surface waters via

groundwater or other subsurface flow that has a direct

hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.” 83 Fed. Reg.

7126, 7126. The EPA noted that federal courts had disagreed about the Act’s applicability to discharges

through groundwater, id. at 7127-7128, and it requested

comment from Tribes, States, members of the public,

and other interested stakeholders regarding whether

and to what extent “subjecting such releases to CWA

permitting is consistent with the text, structure, and

purposes of the CWA,” id. at 7128. The EPA explained

that its request was intended to facilitate possible further agency action, potentially including “memoranda,

guidance, or in the form of rulemaking,” which the

agency could use to “provide additional certainty for the

public and the regulated community.” Ibid.

Contrary to respondents’ arguments, Maui Br. in

Opp. 2, 24; Kinder Br. in Opp. 28, the review process

initiated by the agency’s request for comment is not an

appropriate reason to deny certiorari here. The EPA

has informed this Office that it expects to take further

action, reflecting the results of its review, within the

next several weeks. If the Court grants one or both of

the petitions, the parties therefore should have the benefit of the EPA’s views before any brief on the merits is

due, and the Court can consider those views in deciding

the issue on the merits.

15

4. Of the two certiorari petitions currently before

the Court, the Maui petition provides the better vehicle

for resolving the circuit conflict. The determination

whether the plaintiffs in that case had stated a cognizable claim turned entirely on whether, as the Ninth Circuit held, the CWA’s prohibition on the discharge of pollutants governs the release of pollutants from a point

source “into groundwater, through which the pollutants

then enter a ‘navigable water.’ ” Maui Pet. App. 13

(brackets omitted). Neither the court’s opinion in

Maui, nor respondents’ brief in opposition, identifies

any obstacle to this Court’s resolution of that issue if the

Court grants review.

In Kinder, by contrast, the Fourth Circuit addressed

the merits of the indirect-discharge theory only after

concluding that the plaintiffs had properly alleged “an

ongoing violation” sufficient to confer “ ‘jurisdiction’

over [a] CWA citizen suit[ ].” Kinder Pet. App. 12 (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49, 64 (1987)). Based on its understanding of that issue as being “jurisdictional in nature,” the Fourth Circuit felt compelled to “address the

question of an ongoing violation before proceeding further” on the application of the CWA’s citizen-suit provision to indirect discharges through groundwater. Ibid.

The dissenting judge, who likewise viewed the ongoing

nature of the alleged violation as essential to the court’s

jurisdiction, did not squarely address the question

whether a CWA violation had occurred because he concluded that any violation was no longer ongoing. See id.

at 40-51 (Floyd, J., dissenting).

The parties in Kinder dispute whether the requirement of an ongoing violation is a jurisdictional prerequisite to a CWA citizen suit. Although petitioners argue

16

that respondents did not properly allege an ongoing violation, and that this failure provides an independent

basis for dismissal of their suit, Kinder Pet. 29-37, petitioners contend that the ongoing-violation requirement

is not “jurisdictional in the strict sense of the term,”

Kinder Reply Br. 10 n.4. Respondents, by contrast, argue that the ongoing-violation requirement is jurisdictional but that they adequately alleged an ongoing violation here. See Kinder Br. in Opp. 32-33.

If the Court granted review in Kinder, it would need

at least to determine whether the ongoing-violation requirement is jurisdictional, and (if the Court answered

that question in the affirmative) potentially to decide

whether the conduct that respondents have alleged

would amount to an ongoing violation. Neither of those

questions independently warrants this Court’s review.

See pp. 18-19, infra. And if the Court agreed with respondents that an ongoing violation is a jurisdictional

prerequisite, but agreed with petitioners that no such

ongoing violation exists under the particular circumstances of the case, it could not resolve the far more important question whether the CWA applies to indirect

discharges through groundwater.

The Maui petition is also a better vehicle for resolving that question because the pollutants in that case

(treated wastewater) migrated to jurisdictional waters

(the ocean) solely via groundwater connected to a point

source (the wells). See Maui Pet. App. 8-10. The gasoline at issue in Kinder, by contrast, entered “navigable

waters by seeping from a point source over a distance

of 1000 feet or less through soil and ground water to

nearby tributaries and wetlands.” Kinder Pet. App. 9

(emphasis added); see id. at 63 (“[T]he contaminants are

migrating through the soil and groundwater at the spill

17

site.”). Because numerous provisions of the CWA and

other laws separately address the treatment of groundwater, see, e.g., 33 U.S.C. 1252(a), 1254(a)(5), 1282(b)(2),

1288(b)(2), 1314(a) and (f ), 1329, the migration of pollutants through groundwater may raise distinct regulatory concerns. For that reason, the EPA’s February

2018 request for comment had a special focus on pollutants that reach jurisdictional surface waters via

groundwater. See 83 Fed. Reg. at 7128 (asking commenters to discuss whether releases into groundwater

“would be better addressed through other federal authorities as opposed to the NPDES permit program,”

or “through existing state statutory or regulatory programs”). The Court’s review should similarly focus on

the question whether 33 U.S.C. 1311(a) applies when

pollutants that are emitted from a point source reach

navigable waters after traveling through groundwater.

B. The Court Should Not Review The Other Questions Presented By Petitioners

Each of the certiorari petitions raises an additional

question, but neither warrants this Court’s review.

1. The Maui petition asks the Court to determine

whether, even if the CWA applies, “the County of Maui

had fair notice that a CWA permit was required for its

underground injection control wells that operated without such a permit for nearly 40 years.” Maui Pet. i. It

argues that the County lacked such notice in light of its

“long regulatory history” with state and federal permitting processes, including its past communications with

federal and state officials. Id. at 37; see id. at 37-38.

The Maui petition does not assert that the Ninth Circuit’s fair-notice holding conflicts with any decision of

another court of appeals, but contends only that the

18

holding was incorrect under “a straightforward application of ” existing case law. Id. at 36.

The district court correctly treated the notice issue

as relevant, not to the determination whether the plaintiffs’ citizen suit could go forward, but to the decision

whether civil monetary penalties could be imposed once

the County had been found liable. See Maui Pet. App.

103, 107-108. The existence of fair notice thus is not a

prerequisite to the suit, let alone a jurisdictional prerequisite. If the Court grants review in Maui and holds

that petitioner’s pollutant releases were not subject to

the CWA’s permitting requirements, petitioner’s claim

that it lacked fair notice of the Ninth Circuit’s contrary

view will be rendered moot. If the Court instead holds

on the merits that the CWA applies in these circumstances, that decision will provide clear notice going forward that future pollutant releases into the County’s

wells will require a NPDES permit. In either event, the

parties’ factbound dispute about the adequacy of the notice that the County previously received raises no legal

question of continuing importance.

2. The Kinder petitioners ask the Court to decide

“[w]hether an ‘ongoing violation’ of the [CWA] exists for

purposes of the Act’s citizen-suit provision when a point

source has permanently ceased discharging pollutants,

but some of the pollutants are still reaching navigable

water through groundwater.” Kinder Pet. i. They contend that the Fourth Circuit, by ruling that the alleged

CWA violation remains ongoing as long as “pollutants

originating from [a] point source continue to be ‘added’

to bodies of water that allegedly are navigable waters

under the Act,” Kinder Pet. App. 15, created a conflict

with the Fifth Circuit’s decision in Hamker v. Diamond

19

Shamrock Chemical Co., 756 F.2d 392 (1985). See

Kinder Pet. 33.

As the Fourth Circuit recognized, however, Hamker

was “based on materially different facts.” Kinder Pet.

App. 17. The plaintiffs there alleged that gasoline from

the defendant’s pipeline had leaked into ground water

and had caused “lasting damage to grasslands,”

Hamker, 756 F.2d at 397, but they did not allege that

the defendants had added pollutants to navigable waters, as defined by the Act. Indeed, the Hamker court

appeared to assume that groundwater was itself a navigable water. See ibid.; but see Kinder Pet. App. 12 n.5,

26 (declining to endorse that proposition). The Fifth

Circuit nevertheless found the complaint defective because “[n]o continuing addition to the ground water

from a point source [w]as alleged.” Hamker, 756 F.2d

at 397. The Fourth Circuit, by contrast, relied on allegations “that pollutants continue to be added to navigable waters,” such as the Savannah River. Kinder Pet.

App. 18. The Kinder petitioners identify no reason to

assume that the Fifth Circuit would have rejected a

claim of an ongoing CWA violation under those circumstances.

20

CONCLUSION

The petition for a writ of certiorari in No. 18-260

should be granted, limited to the first question presented, and the petition for a writ of certiorari in 18-268

should be held pending the Court’s disposition of the petition in No. 18-260.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

ERIC GRANT

Deputy Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

ALLON KEDEM

Assistant to the Solicitor

General

JUDY B. HARVEY

MATTHEW R. OAKES

FREDERICK H. TURNER

Attorneys

JANUARY 2019